Title of the topic: Sovereign Immunity

Division: D

Roll no. : 181

Name of the subject: Law of Torts

Page 1 of 5
Introduction

Sovereign Immunity:

The doctrine of Sovereign Immunity holds that the state or the sovereign can commit no legal
wrong and is immune from civil suits and criminal prosecution.

The socio-legal structure today, demands an echelon of the society that is free of inequalities,
prejudice and bigotry. An essential component that would help in nurturing such a community
would be the contribution of the politically strong and educated class, that would uphold such
ideals and thus, the sanctity of our Constitution. The doctrine of Sovereign Immunity, if practised
in a rightful manner, takes a step towards the formation of the same

This legal doctrine holds that the state or the sovereign can commit no legal wrong and is
immune from civil suits and criminal prosecution. It is derived from the British common law
principle, ‘rex non potest peccare’, which translates into ‘the king can do no harm’. There are
two reasons suggested for holding this doctrine truthful:

i. As an attribute of sovereignty, the state could not be sued in its own courts without
its consent,
ii. The award of compensation would affect the treasury of the Crown.

This concept is also founded on the theory that the King (of England in this context) rules by
divine right and therefore could not do any wrong. This doctrine was brought to India by the
Britishers who ruled upon the Indian population and thus, Indian law acquired the doctrine of
sovereign immunity after Independence from colonial rule.

Doctrine Of Sovereign Immunity in India

In an attempt to ensure that genuine victims would receive rightful damages, the Indian Courts
kept narrowing the scope of sovereign functions. The first report of the Law Commission
recommended the abolition of the doctrine. However, the bill for the abolition of the doctrine
could not be passed in the Parliament and therefore, it was left upon the Courts to decide the
fate of the doctrine based on its compatibility with the Constitution of India.

Suing and getting sued by the government: The Constitution of India

The Constitutional provision that mentions the power and liability of the State with respect to
suits filed by and against it, is Article 300. Article 300 provides for when the Government of India
and/or the Government of any State may sue or be sued and that the same shall happen
subject to any provision of an Act of the Parliament or Legislature of that State by the powers
conferred to it by the Constitution.

Page 2 of 5
If it is the Government of India that is being sued or suing, then the same would happen in the
name of Union of India and if the same is happening with a State Government, then the name
used would be that of the State. Such suits can be instituted only in relation to the respective
affairs of the Government and the like cases that could be instituted against or by the Dominion
of India and its provinces before the commencement of the Constitution of India. So long as the
Parliament does not enact a law with respect to this, the legal position is the same as it existed
before the commencement of the Constitution.

Landmark Cases

1. State of Rajasthan v. Vidyawati (1962)

This was the first case before the Supreme Court of India post Independence with respect to
this subject matter. In this particular case, the driver of a jeep which was owned and maintained
by the state of Rajasthan was driven negligently while driving to the residence of the Collector
and fatally injured a pedestrian. Rejecting the State’s contention of sovereign immunity, the
Court said that it was not a sovereign function to drive a jeep and the state must incur liability for
its actions. The Court also added that in present times, the State has more pressing functions
like welfare of its citizens and old feudalistic notions of justice cannot be sustained.[8]

2. Kasturi Lal Ralia Ram v. State of U.P (1965)

In another case, Kasturi Lal Ralia Ram v. State of U.P, a person was taken into custody on
suspicion of being in possession of stolen property. His property, including some amount of gold
and silver, was confiscated and stored/deposited in a malkhana until the disposal of the case.
The gold and silver was misappropriated by a police constable who stole the belongings of the
person and fled away to Pakistan.

The Appellant brought a case against the State of Uttar Pradesh for return of the gold and silver
and as an alternative, claimed damages for the loss caused by the negligence of the Meerut
Police. While the trial Court decreed the suit, the High Court reversed the judgement on appeal.
When the case was brought before the Supreme Court, the Apex Court noted that the police
officials had been negligent in carrying out their duties and had also flouted the Uttar Pradesh
Police regulations.

In spite of this, the Court held that the tortious acts were committed by the police officials in
discharge of sovereign power as their employment was of a category which could claim the
special characteristic of sovereign function and therefore, the State was not liable for the
damages claimed by the Appellant

Page 3 of 5
Sovereign Immunity And The Violation Of Fundamental Rights: Article 32 And 226

It is pertinent to note that the matter of Sovereign Immunity does overlap with the violation of
fundamental rights at the hands of the State and in such a scenario, claiming sovereign
immunity as a defence in matters of custodial death and unlawful detention was a huge blot on
the commitment to respect and abide by human rights for the country and its institutions.

In the state of Andhra Pradesh v. Challa Ramakrishna Reddy, the petitioner and his father were
lodged in a jail and because of an attack on them, the petitioner’s father lost his life while the
petitioner suffered serious injuries. The victims had previous knowledge of the act and had even
conveyed the same to the jail authorities.

However, the jail authorities had not taken their apprehension seriously and there was a lapse
of security. On the grounds of negligence, a suit was filed by the Petitioner. Even though the
trial court had made an observation about the lack of security in guarding the Petitioner and his
father and that the same negligence was the reason behind the loss of life, the Court held that
since the arrest and detention of the Petitioner and his father were sovereign functions of the
state, no state liability followed.

The High Court set aside the judgement of the trial court and held that since the Right to Life
was a fundamental right enshrined in Article 21, the same could not be violated except through
a procedure established by law and the negligence due to which the Petitioner’s father lost his
life was violative of Article 21. It also held that the concept of sovereign immunity could not
override the claim for violation of fundamental rights.

On appeal by the State of Andhra Pradesh, the Supreme Court dismissed the appeal and ruled
that the concept of the King not being capable of doing any harm and the Crown not being
answerable in tort did not apply in Indian legal system because, in India, power rests in the
hands of the people, who happen to elect their representatives to run the Government. This
Government has to act in accordance with the provisions of the Constitution and shall be
answerable for any violation thereof.

Government Contracts And Sovereign Immunity

Government contracts and sovereign immunity do not go hand in hand. With respect to
government contracts, no sovereign immunity can be claimed by the Union Government, State
Governments, Public Sector Undertakings or public bodies. Any dispute arising in these matters
have to be resolved in accordance with the general law.

The only difference is that the period of limitation that applies to the Government in filing suit is
thirty years as against three years by others. Additionally, neither the President nor the
Governor or any other person executing such contract shall be personally liable in respect of
any contract or assurance made or executed.

Page 4 of 5
The Supreme Court has held that no civilised system should permit the Executive of a nation to
play with the lives and properties of the people and claim to be sovereign in the same breath.
Placing the State above the law is unjust and unfair towards the citizen. No citizen should be left
high and dry due to loss suffered on account of the negligence of the officers of that State.

Providing a remedy in such cases is a must as the same is the equivalent of holding the
democratically elected state accountable for its actions. Therefore, barring functions such as
administration of justice, maintaining law and order, repressing crime, which are primary and
inalienable features of a Constitutional Government, the State cannot claim immunity in actions
that it commits or omits to do negligently.

Conclusion

Historically, the justification to the doctrine of sovereign liability lies in saying that the diversion
of funds for compensating citizens under tort liability could bankrupt the State and retard its
growth. Additionally, the State could perform its duties more efficiently and effectively if it was
not dragged into litigation and threatened with legal action for every function that is carried out.
It was accepted, therefore, that an individual could suffer but society must not be
inconvenienced.

The doctrine of sovereign immunity has been held to be outdated and inapplicable in modern
society, which is built upon the trust and for the welfare of the common man. Like the United
Kingdom, Indian Parliament should also pass an Act that would demarcate what constitutes as
a sovereign function worthy of claiming State Immunity and what does not.

The same would not only bring about clarity in the minds of people but also save the judicial
system from a load of cases from this matter. The law must cater to liability insurance or create
such resorts in the form of funds where self-insurance is possible.

The modern state is not a police state. It is a social-welfare state. It ought to take care of the
citizens from cradle to death, especially because it is chosen and voted into power based on
that assumption of reciprocal consideration and care.

‘To err is human’ and this applies to the people who work in the administration of the State’s
functions as well. Therefore, it is impossible to run on a doctrine that holds that the State can do
no wrong. The only exception to this rule is, during the cases of extreme emergency like war. In
these cases, the State action is immuned on the grounds of ‘privatum incommodum probono
publico pensatur’ which means that interests of the individual must give way to the
accommodation of the public.

Reference: https://www.legalbites.in/doctrine-of-sovereign-immunity/

Page 5 of 5