ST.

JOSEPH’S COLLEGE OF LAW

BANGALORE

LAW OF TORTS

ASSIGNMENT ON:

REX NON-POTEST PECCARE: DOCTRINE

OF SOVEREIGN IMMUNITY

SUBMITTED BY,
ALTAF HUSSAIN
1 BALLB A
21110 SUBMITTED TO,
Prof: ROSHAN SIR
Dept: LAW OF TORTS

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 TABLE OF CONTENTS

S.NO TOPIC PG
1. INTRODUCTION 03
2. MEANING 03
3. KINDS OF SOVEREIGN IMMUNITY 04
4. POSITION IN INDIA 04
5. PROVISION IN CONSTITUTION OF INDIA 05
6. EXCEPTIONS 05
7. LIMITATIONS OF SOVEREIGN 06
IMMUNITY
8. RELEVANT CASES 07
9. CONCLUSION 07
10. REFERENCES 08

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INTRODUCTION:

The idea of sovereign immunity was evolved in common law

jurisprudence. In the past, we did not believe in the idea of a government made up of elected
officials. The literature of the past has made it abundantly evident that monarchs were in
charge of ensuring the welfare of their subjects and that they were the ones who ran the
country with the help and counsel of their ministers. Although the kings had complete
discretion over all decisions and the right to create laws.

They had to administer the state properly and efficiently due to the position of authority they
had been given, but they also needed to be safeguarded from any penalty (punitive or
deterrent). The idea of sovereign immunity, which states that a sovereign or state cannot
violate the law and is exempt from civil lawsuits or criminal punishment, was therefore
developed as a result.

Rex non potest peccare, which translates as The King Can Do No Wrong, is a legal maxim
that upholds this tenet. A monarch cannot be held accountable for his own wrongdoing or
neglect, nor can he be held accountable for the actions of his subjects, according to this
theory.

MEANING:

Rex non-potest peccare, a Latin dictum, literally translates as "the monarch

cannot do wrong." The doctrine of sovereign immunity or crown immunity is another name
for it. [2]

Origin: Russell v. Inhabitants of Devon[4], a case from 1788 in England, is credited with
giving rise to sovereign immunity. In that instance, a British plaintiff sued his own
municipality to seek compensation for harm a damaged bridge caused to his waggon. The
court determined that the town was not responsible, in part because it was preferable for one
individual to get hurt than for the general public to be inconvenienced. In Massachusetts in
1812 and Vermont in 1849, respectively, this defense of municipal immunity was first used in
the United States.

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Explanation: The following can be used to explain this adage's dual meanings:
1. The monarch, or sovereign, is unconstrained by any authority.
2. The Crown's powers do not extend to harming anyone; they were granted for the
benefit of the people and cannot be used against them.

The King, furthermore, is not only incapable of acting wrong but also of thinking wrong: He
can never intend to do an incorrect thing; there is no folly or weakness in him, according to
English jurist Sir William Blackstone, who said this in his Commentaries on the Laws of
England (1765). This clarifies the doctrine's core ideas for us.
Due to some act of the state, A had to suffer a few losses, however, he was not able to sue the
state for it as the state was protected by the principle laid by the maxim 'Rex Non-Potest
Peccare'

KINDS OF SOVEREIGN IMMUNITY:

Immunity from jurisdiction simply implies that the state from

which a government official or state authority hails cannot be called to this state and tried for
a matter if the official or authority commits a wrong there. States are therefore exempt from
the jurisdiction of courts in other states.

For instance, A, an Indian, broke the law in Pakistan. As a beneficiary of the idea of
sovereign immunity, India is shielded from prosecution by Pakistani courts under this
privilege. Although the state entity may forgo this immunity. Immunity from execution is
granted to a state against the implementation of a judgement even in situations when a person
or entity from one state is tried by another state and found guilty, as it would be unfair for one
court to order the seizure of property from another state.

POSITION IN INDIA:

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 The Law Commission of India suggested abolishing this outmoded
theory in its very first report. However, for a variety of reasons, the draught bill to abolish
this doctrine was never passed, leaving it up to the courts to judge whether it was compatible
with the Indian Constitution.

We might get the conclusion that the notion of sovereign immunity is only occasionally used
in India based on various judgments and governmental decisions. The following laws are
among those that uphold the notion of sovereign immunity:
Section 86 of the Civil Procedure Code (1908) says that no
lawsuits may be brought against foreign governments. However, the lawsuit itself suggests an
exemption in which a lawsuit may be brought with the previous consent of the government of
the specific state that is offended by the action of another state. States and individuals serving
as ambassadors or on missions abroad are granted specific diplomatic privileges under the
Diplomatic Relations (Vienna Convention) Act of 1972. India abides by specific provisions
of this convention that provide sovereign immunity and other powers to the relatives,
household help, and staff members of ambassadors and other diplomatic personnel.

PROVISION OF CONSTITUTION OF INDIA:

According to Article 300 of the Indian Constitution:

1. The Government of India and the Government of a State may sue or
be sued in relation to their respective affairs in the same circumstances
as the Dominion of India, subject to any provisions that may be made
by Act of Parliament or of the legislature of such State enacted in
accordance with the powers granted by this Constitution.
2. The Union of India will be deemed to be substituted for the Dominion
of India in any legal proceedings that are ongoing at the time this
Constitution takes effect. If any legal proceedings are ongoing to
which a Province or an Indian State is a party, the corresponding State
will be deemed to be substituted for the Province or the Indian State in
those proceedings.

EXCEPTIONS:
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 As stated in the case of Syrian Arab Republic v. AK Jagodia, states are not
immune from liability in tenancy disputes. Another thing to note is that when a wrong is done
through a business or contractual transaction, states are not protected either.

In fact, in the case of State of Maharashtra v. Czechoslovak Airlines, the state was unable to
rely on sovereign immunity because, despite the fact that the airline was a division of a
foreign state, the relief sought was based on a business transaction, which is not protected by
the immunity in question. The courts have taken the same stance in numerous other cases,
including the Ethiopian Airlines case and the Jute Mills case from 1993. (2011).

LIMITATIONS OF SOVEREIGN IMMUNITY:

The government must fully investigate the facts and circumstances of the
case in order to determine if a given action comes under the principle. Additionally, the
government must give the authorities a reasonable opportunity to defend themselves. The
government can then decide and justify its choice by approving or rejecting the application. A
judicial review of the government's decision is possible. This is regarded as the second stage
of testing the case, when the courts may remand the matter to the government for
reconsideration and the issuance of a new order if they believe the government has made an
incorrect judgment.

RELEVANT CASES:

The court attempted to definitively define the idea in the case of Peninsular
and Oriental steam navigation company v. Secretary of State by dividing the acts performed
by the East India Company into sovereign and non-sovereign acts. As a result, the court
looked at a foreign power's vicarious culpability in relation to their business dealings in India.

In the subsequent case, Secretary of State v. Hari Bhanji , the courts determined that only acts
of state, not the conduct of the East India Company, are shielded from liability. However, it

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was impossible to distinguish between sovereign and non-sovereign functions in each of
these instances.
In State of Rajasthan v. Vidhyawati, the respondent's husband was tragically hurt by a jeep
car driven by a driver employed by the appellant State when he was walking along a public
road. The driver and the vehicle were being maintained for the District Collector's official
use, and at the time of the collision, the vehicle was being driven back from a shop after
receiving some repairs to the Collector's home. While the lower court exonerated the State of
any obligation in response to a lawsuit for damages brought by the widow and minor
daughter of the dead, the High Court declared the State Liable. It was decided that, just like
any other owner, the state was liable for the actions taken by the driver while doing his job
duties. As a result, the notion that the state or owner was responsible for the actions of his
servants, which wasn't followed earlier, evolved.

However, Kasturi Lal v. State of UP, where the court determined that the use of excessive
force by police, including arrest and seizure, constitutes an abuse of their authority, called
into doubt the court's ability to apply this concept.

CONCLUSION:

The doctrine of sovereign immunity, often known as crown immunity in

Latin Rex non-potest peccare- This dictum may have been appropriate in the past when
rulers, kings, queens, and royal families ruled a particular nation, but it is no longer really
applicable today, especially in a democratic nation like India.

Laws and legal concepts must adapt to the way the world has changed through time in order
to continue serving their intended purpose in the present and take into account potential
changes brought on by modernization and advancement. The days when a king or ruler was
regarded as the Supreme Power and a being endowed with divinity are long gone. Being
human, we are prone to making mistakes. The argument is that granting the ruler or
government such immunity is fundamentally unfair, and in the event of carelessness or error
on the part of the State, it should be held accountable to make up for the loss, damage, or
injury suffered by the aggrieved party who may have suffered as a result of an error made by
any state body or government authority.

As previously said, there needs to be some deliberation and explanation with regard to the
functions carried out by the government in order to determine their liability in the event that
any wrongdoing is committed or harm is made to third parties.

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REFERENCES:

1. https://www.legalserviceindia.com/legal/article-6646-rex-non-potest-peccare-
doctrine-of-sovereign-immunity.html#:~:text=Websites%20Referred%3A-,https
%3A//www.latestlaws.com/articles/limits%2Dof%2Dsovereign%2Dimmunity/,-
https%3A//lawtimesjournal.in

2. https://www.legalserviceindia.com/legal/article-6646-rex-non-potest-peccare-
doctrine-of-sovereign-immunity.html#:~:text=https%3A//
lawtimesjournal.in,18th_century/blackstone_bk1ch7.asp

3. https://www.legalserviceindia.com/legal/article-6646-rex-non-potest-peccare-
doctrine-of-sovereign-immunity.html#:~:text=non%2Dpotest%2Dpeccare/-,https
%3A//www.jdsupra.com/legalnews/sovereign%2Dimmunity%2Dpunishing
%2Dthe%2D55119/,-https%3A//www.academia

4. https://www.academia.edu/43780090/REX_NON_POTEST_PECCARE

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