Introduction:
As per the preamble of our constitution, India is a Sovereign country, which means that it has independent authority and is not under influence or not answerable to any external party or entity. Sovereignty can be interpreted as supreme power which could be political or legal. In a monarch system, the power of sovereignty is vested in the king or queen, however in India, this power shifts to the elected representatives. When India became a Sovereign State on 26 January,1950, Pandit Jawaharlal Nehru declared that even though India is a member of international organizations like the United Nations and wishes to be a part of the commonwealth with other nations, this membership will not interfere with the country’s sovereignty. India’s association is voluntary and the country is free to cut ties with any organization if needed.
The word ‘Sovereign’ borrowed from the constitution of Ireland, has two sides to it, external and internal. External sovereignty means that India is not subject to any international control over its territories and has full power to acquire or cede any additional or existing territory, abiding by the Constitution. Internal sovereignty refers to domestic affairs in relation to individual states within the country. Each independent state has the power to legislate over its subjects before any interference of any other state.
This ideology gave birth to the doctrine of ‘Sovereign Immunity’. Before comprehending this doctrine, it is important to understand the term of sovereign immunity. ‘Sovereign’ like mentioned, means independent power and authority to the ruler and ‘Immunity’ as spoken commonly implies resistance. Hence, Sovereign Immunity means that the ruler can be saved from being sued. Therefore, this gives protection to the government and its organs from being legally accused. Every country has its policies relating to sovereignty; some give immunity to all bodies, some do not. Even if all evidence goes against the government, or the state, or it’s organs, Sovereign Immunity is their “get out of jail free card”.
Types of Sovereign Immunity
The Sovereign entity enjoys two immunities being:
- Jurisdiction Immunity: All states can resist the interference of another State’s court. Their territorial jurisdiction is sovereign in nature and is immune from any external power or decision.
- Executive Immunity: It is inappropriate for a court to seize their own state or territory from them, hence, the state has this immunity to protect its control over its territory.
India adopted the concept of Sovereign Immunity way before Independence. This term was coined by Britishers as they embraced the notion that a ruler can never be wrong. It was first opined by the Calcutta Supreme Court after the landmark judgment of Peacock C.J. in P. and O. Navigation Company V. Secretary of State of India, where the measure of sovereignty was used to determine the liability of the East India Company over violation of servants. However, this landmark judgment gave rise to an important case of Hari BhanJi V. Secretary of State[1], where the Madras court said that the East India Company immunity only extends to acts in relation to the state after reviewing if the act is sovereign or non-sovereign.
Laws Lifting Sovereign Immunity
The courts of India kept limiting the scope of immunity of a Sovereign State in order to punish those guilty and give justice to the victims by compensating them with their rightful damages. There was a bill of abolishment of this doctrine in the Parliament, however, it was never passed, thereby leaving it completely upon the courts to decide the fate of the prosecuted party.
Precedence Post-Independence
Post-independence, there were several instances where sovereign states were in the eye of prosecution, and, many times, the courts found the state guilty. The states kept demanding for their sovereign immunity but the Supreme Court decided to put restrictions by considering some acts as non-sovereign. Hence, sovereign immunity has not being abolished but laws have been made around it to restrict this ultimate power of any independent state. One such case of State of Rajasthan V. Vidyawati[2], determined this restriction when the court dismissed the grounds of immunity for the state after holding them liable for committing a tort.
Even though a distinction was made between sovereign and non-sovereign acts, these provisions were still fuzzy. The controversial case of Kasturi Lal V. State of U.P.[3] gave a different perspective to this provision by the Supreme Court where they put forward that power abuse by the police is a sovereign act and therefore the State can be immune for the same.
Practically, the courts face a lot of difficulty in deciding the liability of the State, and whether they stand a chance for immunity. The court stated that different views made between both the above cases can be distinguished. In reference to the case of Vidyawati, the activity that involved a government jeep hitting a pedestrian who died on the spot, was not in the circumference of a sovereign act as it was not done in the course of performing a duty. On the other side, the police involved in the case of Kasturilal to arrest and seize powers was done in the course of performing their duty which is considered Sovereign. The court also came to a standstill and expressed its discontent with this particular doctrine stating that the only cure for this lies within the sphere of the Parliament.
One such exception to this limitation in the constitution is Article 361. It provides protection to the President of the country and the Governor of a State. It states that the person in this position is not answerable to court while they hold office, and exercise their power while performing their duties. They cannot be criminally prosecuted or arrested, however, their actions can be investigated and if liable for misconduct, they can be charged for their actions by the process of impeachment under Art. 61 of the constitution.
Article 300 of the Indian Constitution
This article stipulates that the central or state government of India is capable of suing and can be sued as well. All actions carried out by the central government are done in the name of the President, and, everything done by the State government is under the Governor of that state. However, when sued or suing, the President’s or Governor’s names are never used as part of the case, it is either the ‘Union of India’ or ‘State of xyz’ represented by the respective representative. So, unless the Parliament does not enforce any act or law in regard to changing this, the legal doctrine will continue to exist as it did in the British era.
Interpretation of Acts Considered Sovereign and Non-Sovereign
The Supreme Court has constantly signified that it is important to clarify this distinction in the pursuit of justice. Clarity is essential as many governments or their organs proceed with activities that are not in regard to the “traditional governmental activity”. Therefore, it has become a necessity to limit the jurisdiction of sovereign powers, and violators exceeding their exercise of powers face consequences.
Like mentioned, this doctrine came into power during the British time, however, now that we have our own constitution with a Republican Government, the principle does not allow a justification on why the State should not be held liable for acts done against public interest. The Competition Act, 2002, makes sure that there is no monopoly and restricts governmental activities, however, activities that deal with atomic energy, defense, space, and currency are exclusions of the scope of the act.
There has been an attempt to constantly distinguish between what acts to be held liable. This can be seen from all the precedent judgments rendered by the Supreme Court. Yet there is no clarification on the term “sovereign functions”. Time and again different views and perspectives are given to explain what acts fall under the purview of sovereign functions.
State of Andhra Pradesh V. Challa Ramkrishna Reddy[4]
Though the case of Kasturilal attracted a lot of controversies, the strongest disapproval came after the case of the State of Andhra Pradesh V. Challa Ramkrishna Reddy. The petitioner along with his father were arrested and violated causing the death of the father. Previously, they were victims of the attack and had complained several times but no security was provided to them. In fact, there was clear negligence on policemen guarding them when they were in jail. Thus, the petitioner filed a suit of negligence against the State. The trial court dismissed the petition; however, it was allowed in the High Court and on reviewing precedent cases, Art. 21 of the constitution was taken into consideration stating there can be no interference with an individual’s Right to Life or his personal liberty in sync with the law procedures. Thus, the court stated that since the incident occurred due to unlawful negligence and went against Art. 21, the statutory violated a Fundamental Right and sovereign immunity cannot overlap any constitutional provision, especially the fundamental rights. The State appealed to the Supreme Court which was dismissed on the grounds that the government is answerable to the people and any violation of rights should face consequences as in Indian jurisdiction the government are elected representatives chosen by the people itself. Since India is not a monarchy, statutory provisions can never override the constitution. The aggrieved party was allowed to successfully continue with the petition in the trial court against the State. While holding the Kasturi Lal’s case, it no longer had binding value. The question that the country now faces is whether statutory abuse can successfully claim sovereign immunity or not at the discretion of the court.
Conclusion
Historically, the concept of Sovereign Immunity has been given as a justification to let the State effectively perform its duties instead of being dragged down into litigation and court proceedings. The State should not feel threatened every time it has to carry out its duties and that an individual suffering weighs a lower scale than an entire State or entity. However, today’s time shows us the capabilities of this doctrine as it goes against the welfare of every individual citizen. India should adopt acts passed by the United Kingdom to segregate what constitutes as a sovereign act and what is worth immunity. This line needs to be clear and it can only be enacted by the Indian Parliament. Besides this clarity in our minds, it will also significantly help the judicial system by unloading pending cases on this matter.
We live in a social-welfare state, and the state is ought to care about its’ citizens as they are the ones believing and voting for the power, assuming that in return they will receive consideration and love from the government. Hence, the modern society cannot run on a doctrine that implicitly states that no State is wrong. This Sovereign Immunity should be extended only in times of emergency like war, or to relate to current examples, the pandemic situation.
References:
[1]Hari BhanJi V. Secretary of State, April (1882) ILR 5 Mad 273
[2] State of Rajasthan V. Vidyawati, February 1962 AIR 933, 1962 SCR Supl. (2) 989
[3] Kasturi Lal V. State of U.P, September, 1965 AIR 1039, 1965 SCR (1) 375
[4] State Of Andhra Pradesh vs Challa Ramkrishna Reddy & Ors on 26 April, 2000, Criminal Case No.18/1997
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