Sovereign Immunity – The Indian Perspective

    Origin

    Sovereign Immunity justifies the wrongs committed by a State and its servants. That means even when the state or its representative has committed a wrong with all essentials of an actionable claim, it can steer clear of liability under this doctrine.  

    The Doctrine of Sovereign Immunity is derived from the British Common Law principle of rex non potest peccare that translates to “the King can do no wrong”. Historically, it meant that the King of England ruled by divine right and he could do no wrong.[1] The doctrine absolved the state from tortious liability of its officers. The doctrine was based on two reasons viz. (1) as an attribute of sovereignty, the State cannot be sued in its court without its consent (2) the award of compensation would affect the treasury of the crown. 

    The British brought their law to India during colonisation which gradually found its way to Indian legislature post-independence. However, modern jurisprudence has stridden a long way and the concept of law and the state has altogether changed. 

    The doctrine stood strong in the Indian courts since the post-colonization era till recently. With time people began to realize how obnoxious it was to be refuted by courts against genuine complaints, on grounds of an antiquated concept that seemingly held no relevance to the present times. To address this issue, Indian courts kept on streamlining the scope of sovereign functions.[2] In its first report, the Law Commission of India had recommended the abolition of this archaic law [3], but the draft Bill was resisted from being enacted due to various reasons and it continues to be a matter of grey area.

    Legal Basis of Doctrine of Sovereign Immunity

    The Doctrine of Sovereign Immunity is not codified with clear demarcation in the Indian laws. Thus the principles are not exclusively introduced and need to be traced through various legislations and constitutional text.

    Article 300 of the Constitution

    Article 300(1) reads as, “The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provision which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.”[4]

    The Article provides that the Government of India or the Government of any State may sue or be sued for violation of any existing law in India. To sue, here, does not mean to initiate proceedings to put the ‘government’ in the slammer; it simply means that one can claim damages from the Government in case it is found liable. It further states that in case someone perpetrates a crime, the Government of India involuntarily becomes a party to the case against him. 

    Indian Patent Laws

    Section 47 of the Indian Patent Act, 1970 provides exclusive rights to the patentee to exploit their invention to any extent; however, this right is not absolute. This Act exempts the Government of India from its ambit by stating that ‘the government may import, make, or have made on its behalf any patented product or product made by a patented process ‘merely for its own use.’’[5] Here the scope of ‘use of government’ is left open-ended, meaning that there is no provision of patent infringement liability by the Government where such use is made. [6]

    Motor Vehicles Act

    Motor Vehicles related to the government, especially to the Military or Paramilitary Forces have long been the topic of controversy in cases relating to the Sovereign Immunity principle. The judgments usually revolve around the pivotal point of whether the activities a particular vehicle was engaged in, falls under the scope of a sovereign function or not.

    For instance, in the landmark case of Satyawati v. Union of India [7], the Air Force vehicle carrying the hockey team of the Indian Air Force to a match caused a fatal accident while returning to park the vehicle after the match was over. The counsel argued that the activity was for the benefit of IAF personnel, and it was one of the functions of the Government to keep them fit. The Court dismissed the argument and decided that carrying the hockey team could not be considered under the functions of sovereign duty and thus, the Union of India was liable for damages.

    Kinds of Sovereign Immunity

    The State enjoys two types of Immunity:

    Immunity from Execution

    The state has immunity from execution, meaning one state in its legal right cannot seize the property of another state. This immunity from execution may generally be waived.  This immunity, however, might be difficult for the Government to address. E.g., the country’s consular possessions or foreign embassies should not be available for the satisfaction of the execution of an arbitral award.

    Jurisdictional Immunity

    The law governing jurisdictional immunity of foreign states is mentioned in Section 86(1) of the CPC. It states that ‘no foreign State may be sued in any court otherwise competent to try the suit except with the consent of the central government’. Thus a state is immune from the jurisdiction of courts of any foreign state. However, this immunity can be waived by the state, e.g., when states submit to international arbitrations. Some developing countries might be of the view that the principles of international arbitrations have their roots in Western culture, and would not give a developing country an unbiased and fair hearing. They may instead submit to UNCITRAL, which is generally considered to be more representative and culturally neutral. [8]

    Important Judgments

    The first case of Sovereign Immunity in India was the State of Rajasthan v. Vidyawati [9] where the court did not recognize the immunity of the state and held it liable for tortious acts. However, in the landmark case of Kasturi Lal v. State of U.P. [10], the court was of the view that the state shall be given sovereign immunity. The rules laid down by P&O Steam Navigation [11] case were followed and a distinction between sovereign and non-sovereign functions was made. As a result, the Apex Court opined that the use/abuse of police power is a Sovereign act and the state cannot be made liable.

    President of India: Powers and Duties

    On the contrary, in the case of State of Andhra Pradesh vs. Challa Ramkrishna Reddy [12] where the petitioner’s father died due to gross negligence by police authorities, the Apex Court overruled the Kasturi Lal v. State of U.P. case and made the state liable. The Court considered Article 21 of the Constitution and opined that, since ‘Right to Life’ is a Fundamental Right, an individual cannot be deprived of his life and liberty except in accordance with the law. The Court further stated that statutory provisions of sovereign immunity cannot supersede the constitutional provisions, thereby declaring the state liable.

    A similar decision was taken by the court in the case of Nagendra Rao & Co. v. State of A.P. [13] when the court vehemently opined that in a civilized system, no law should permit state authorities to play with people of the country and claim sovereignty as a defence. 

    Conclusion

    A state needs certain extraordinary powers to function properly and keep the law and order situation in control. However, if proper boundaries are not set with regards to the extent of such powers, it might prove lethal to democracy. At the time, when communal riots and mob lynching are on the rise, it has become increasingly necessary to make clear distinctions between situations where Sovereignty can be claimed and where it cannot be. 

    It is evident from the above-mentioned illustrations that there is a disparity in opinions of several courts, and the victims usually go through several appeals to finally get justice from the Apex Court. Unlike the USA [14] and the UK [15], in India, no clear outline has been provided for the immunity of the State and extent of this power. Thus, precedents are the only source to understand the applicability of the doctrine. Hence, it is high time that India enacts legislation exclusively on State immunity thereby turning the grey areas of confusion into black and white.  

    Endnotes

    [1] 1 Blackstone’s Commentaries (4th Edn) 246

    [2] Amardeep Garje, Sovereign Immunity- No Defence in Private Law 

    [3]Law Commission of India, 1st Report, Pages 40-42, Para V (1958)

    [4] The Constitution of India, 1950

    [5] Section 47(2), Indian patent Act, 1970.

    [6] Chakravarti, Devaditya Thadani, Karmanye Chablani, Varun Nayak, Alok, Abrogating Sovereign Immunity in Patent Infringement Cases in India: Retreating Without Disgrace.

    [7] AIR 1957 Delhi 98

    [8] Craig, Park and Paulsson, International Chamber of Commerce Arbitration (3rd edition 2000)

    [9] AIR 1962 SC 933

    [10]AIR 1965 SC 1039

    [11] 5 Bom HCR App. 1

    [12] (2000) 5 SCC 712

    [13] 1994 SCC (6) 205

    [14] Federal Tort Claims Act, 1946

    [15] The State Immunity Act, 1978

    Jyoti Rout | ICFAI Law School, Hyderabad

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