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Introduction:

Recently, the words “Sovereign Immunity” were in the limelight in Kulbhushan Jadhav’s case[1]. The Indian High Commission nominated Barrister Shahnawaz Noon and said that giving him vakalatnama would mean a waiver of Jadhav’s Sovereign Immunity.

So, now the question is what is Sovereign Immunity? Who gets it?

Indian Preamble clearly manifests India as a Sovereign state. The expression “sovereignty” is derived from the Latin word “Superanus” which signifies ‘Supreme’. Sovereign means the independent jurisdiction of a State over itself, without any intrusion from the external sources.

The word “immunity” is derived from the Latin word “immunis” which implies exclusion or the extent to avoid or not being affected.

The legal principle of Sovereign Immunity holds that the sovereign can carry out no lawful wrong and is resistant from civil suits and criminal prosecutions. Sovereign Insusceptibility is a rationalization for wrongs performed by the State or its delegates. Even if the State is liable for actionable claims, liability can be avoided by utilizing this doctrine.

Background

In the ancient era, there wasn’t any construct of democracy. The kings were liable for the welfare of their subjects and they controlled the state on resources and recommendations of their ministers. Despite the reality that the decision-making and the capacity to create laws were all in the possession of the kings to decide. Because of such, it was important to protect them against any punishment as they had to run the State productively and efficiently. Consequently, the teaching of sovereign immunity developed[2].

The precept of sovereign insusceptibility has been enshrined under the British Common Law principle rex non protest peccare which means “the Lord can do no wrong”. It is also acknowledged as “Crown Immunity”. According to this precept, a king can’t be considered responsible for malpractices or negligence and neither can he be considered responsible for acts performed by his servants.

No matter what decisions the Government takes it can’t be considered responsible for any of it. So, is this principle justified? In the contemporary era of democracy and human rights, this principle is assumed to have generally been forgotten. The genuine claim for damages was discredited on the basis of that old principle and privileges of victims were abused. After all, constitutionalism in democratic nations is all about promoting the Rule of Law by having adequate surveillance, in order to make sure that even the State doesn’t abuse the rights of any individual citizen. So, the Indian Courts narrowed the range of sovereign capacities, so that the aggrieved individual can claim the damages.

Can the Government be sued?

Pre-Constitutional Era:

Section 176 of the Government of India Act, 1935 the risk was coextensive with that of Secretary of State for India under the Government of India Act, 1915, which accordingly made it coextensive with that of the East India Company preceding the Government of India Act, 1858. Section 65 of the Government of India Act, 1858, given that all people will and may take such cures and procedures against the Secretary of State for India as they would have taken against the East India Company[3].

The decision in Peninsular and Oriental Steam Navigation Company v. Secretary of State for India[4] gave birth to the tenet of Sovereign Insusceptibility. Facts were that a worker of the Plaintiff was travelling from Garden Reach to Calcutta in a carriage driven by a couple of horses. The accident occurred when the coach was going through the Kidderpore Dockyard which was a government dockyard. Some government workmen employed in the Government dockyard were conveying a heavy piece of iron and fixing a steamer. The men conveying the iron-rod were going in the midway of the road. At the point when the carriage of the offended party drove up closer, the coachman gave an admonition to the men conveying the iron rod and the coachman eased back its speed.

The men conveying the iron rod endeavoured to move, those in front attempted to move to the one side of the road while the individuals who were behind attempted to move to the opposite side. The outcome of this was the deficiency in time, bringing the carriage to close up to them before they had left the focal point of the road. Seeing the horses and carriage they got frightened and unexpectedly dropped the iron rod and fled. The iron rod fell with an extraordinary commotion resulting in wounds to one horse, which frightened the plaintiff’s horses which thereupon rushed forwards violently and fell on the iron rod. The organisation filed a suit against the Secretary of State in Council for the harms for injury to its horse brought about by the carelessness of the workers employed by the Government of India.

The Supreme Court held that the Secretary of State for India was accountable for the harms brought by the negligence of the Government workers because the negligence wasn’t done in the exercise of a sovereign capacity. The Court drew a differentiation between activities performed in the exercise of “Sovereign power” and activities performed in the exercise of “Non-Sovereign power” i.e., actions performed in the direction of endeavours which may be carried on by an individual without having such capacity. The accountability could only emerge in case of “non-sovereign functions”.

The complainant suffered an injury in the exercise of non-sovereign function. The maintenance of Dockyard could be done by any individual without any assignment of sovereign power and thus, the Government was accountable for the misdeeds of its workers. The Secretary of State wasn’t obligated for actions done in the course of sovereign powers.

Post-Constitutional Era:

Article 300 of the Constitution of India states Tortious Liability of the State. As per Article 300, the Indian Government can sue and it can be sued by the name of the Union of India and Government of State. Article 176 of the Government of India Act, 1935 established the framework of this article.

The Parliament of India hasn’t made any law and consequently, the inquiry must be resolved concerning whether the suit would lie against the Dominion of India before the Constitution came into force. Subsequently, while the Parliament or the State legislature don’t enact a law on the point, the legitimate circumstance in this respect is identical to the previous situation before the initiation of the Constitution.

In the State of Rajasthan v. Vidyawati, 1962 SC 933 the accountability of the Government was determined. The facts were that the driver of a jeep which was possessed and cared for by the State of Rajasthan for the official purpose of the Collector of a district, drove it impulsively and carelessly while bringing it from the workshop after fixes and knocked down a pedestrian and severely injured him. Because of the injuries the pedestrian died. His widow sued the State of Rajasthan for damages. The Apex Court pronounced that the State was liable for damages. The mishap took place while the driver was bringing it back from to the Collector’s residence. It can’t be said that he was employed on a task which depended on the assignment of the sovereign or governmental ability of the State. His action wasn’t in the exercise of a sovereign function. The Court said that the appointment of a driver for the use of a civil servant was an activity which wasn’t related in any manner to the sovereign power of the State at all.

The Court had a view that invulnerability from the accountability of the State for tortious acts performed by its workers when exercising sovereign powers assigned to it can’t be sustained. There’s a necessity to demarcate between What the Government ought to do and What it does in reality for the administration of the country. The actions or decisions taken should be reasonable and build on natural justice principles’. In Kasturi Lal Ralia Ram v. the State of UP, 1965[5] an individual was detained on suspicion of being in possession of the stolen property. His assets, including some amount of gold and silver, were also forfeited and stored until the disposal of the case. The gold and silver were embezzled by a police constable who stole the belongings of that individual and ran to Pakistan. The Court declared that confiscation of the gold and silver was done under the sovereign function, but the misappropriation wasn’t. Therefore, the State will not be accountable for the compensation of such damages.

The State can’t claim immunity where the actions performed by it are unlawful and inhumane. If the overlapping of Sovereign Insusceptibility with the abuse of fundamental rights isn’t checked, then, it will eventually lead to disequilibrium among the general public. The idea of a successful nation will be harmed.

In Rudal Shah v. the State of Bihar, AIR 1983 SC 1086, the Court recognized the State’s liability. A person who completed his punishment was illegally detained for extra 14 years. The writ of Habeas Corpus was filed and the aggrieved was awarded exemplary damages.

Can a Suit be Filed Against the Foreign States?

Like other nations,  India also recognizes the adage  “par in parem non habet imperium” which translates to “one sovereign state is not subject to the jurisdiction of another state”. Section 86 of the Code of Civil Procedure, 1908 (CPC), provides that no case may be filed against alien states in India, except with the prior written assent of the public authority. It is also expressed that the organization would be defined as an Unknown State depending on the presence of its Constitution and the degree of control exercised on that specific entity by the Government. The Diplomatic Relations (Vienna Convention) Act 1972 incorporates certain immunities handed to political missions and their members in India.

In Mirza Ali Akbar Kashani v. United Arab Republic & Anr, 1966[6] the Apex Court pointed out that the global tenet of sovereign insusceptibility is modified by Section 86 to a limited extent. Legal action was brought against the United Arab Republic and the Ministry of Economy, Supplies, Importation Department of the Republic of Egypt at Cairo, for compensation against the violation of the contract.

The dilemma was whether or not permission under Section 86 necessary? The Court pronounced that Section 86 needed to be observed in this situation. When a case is filed with the assent of the public authority then the State can’t argue for sovereign immunity.

Conclusion

The tenet of Sovereign immunity has been justified in our past by the Courts but now, because of the changes in the society this principle is losing its value. The reduction of this principle of immunity is a need in today’s society to ensure the welfare of the residents and ensure smooth administration.


References:

[1] https://tribune.com.pk/story/2271739/ihc-highlights-indias-double-standards-in-jadhav-case

[2] https://www.latestlaws.com/articles/limits-of-sovereign-immunity/

[3] https://www.lawctopus.com/academike/sovereign-immunity/

[4] https://www.lawctopus.com/academike/vicarious-liability-state/#:~:text=Peninsular%20and%20Orienta l%20Steam%20Navigation,Secretary%20of%20State%20for%20India&text=A%20consideration%20o f%20the%20pre,%26%20O.

[5] https://www.legalbites.in/doctrine-of-sovereign-immunity/#ram

[6] http://www.legalserviceindia.com/legal/article-3764-suits-against-foreign-states-and-interests-in-india- as-doctrine-of-sovereign-immunity.html


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