DOCTRINE OF SOVEREIGN IMMUNITY

ABSTRACT

An established tenet of international law known as the theory of sovereign immunity shields governments and their representatives from prosecution in other countries. This legal idea has changed over time, posing difficulties and complications in its implementation. It is based on the idea that states are sovereign entities and ought to be exempt from the jurisdiction of other nations.

This paper examines the roots of sovereign immunity in customary international law and how it has evolved historically, as well as its theoretical foundations. It does this by looking at the numerous conventions that have codified the concept. It explores the two facets of sovereign immunity, defining jurisdictional immunity as immunity from lawsuits, and execution immunity as immunity from execution. In order to provide light on the rules guiding jurisdictional and execution immunity, the research examines significant cases that have influenced the body of law regarding sovereign immunity.

The research paper also discusses the constraints and exceptions to sovereign immunity, taking into account situations in which nations may choose to voluntarily renounce immunity or in which exceptions are acknowledged, such as in situations involving economic activity or violations of human rights. Furthermore, covered are current developments and trends in the use of sovereign immunity, as well as the implications of global advancements in human rights.

To sum it up, this paper presents a thorough analysis of the theory of sovereign immunity, taking into account its legal underpinnings, historical background, exceptions, and current issues. Supranational immunity’s dynamic character reflects how international law is developing, which has sparked continuous debates about how to strike a balance between sovereign nations’ interests and the pursuit of justice and accountability.

Keywords

International Law, Sovereign, Global Advancements, Human Rights, Immunity.

INTRODUCTION

A sovereign state or government is shielded from lawsuits in both domestic and foreign courts under the legal theory known as “sovereign immunity.” This notion is based on the idea that a government or other sovereign body shouldn’t be the target of legal action without its permission. Originating in historical times, sovereign immunity has developed throughout time to impact both national and international legal systems.

The foundation of the idea of sovereign immunity is the Common Law precept, which was taken from British Jurisprudence, which states that the King is blameless and cannot be held accountable for his own misbehaviour or neglect, nor can he be held accountable for the misbehaviour of his staff. This concept also said that a state’s ability to be sued in its own courts without agreement was a feature of sovereignty[1]. Sovereign immunity appears to be a public policy justification for wrongs done by the State or its representatives. Hence, by providing this defence, responsibility can be avoided even in cases when all the components of an actionable claim are made.

The British common law theory, which is predicated on the notion that the king is infallible, is where the phrase “sovereign immunity” originated. Sovereign immunity in the United States is limited to the federal and state governments; municipalities are not protected by it, as they are able to waive it. after the federal government passed the Federal Tort lawsuits Act, waiving the several categories of tort lawsuits. The idea of sovereign immunity pertains to the state’s immunity from lawsuits without permission.[2]

The term “doctrine of sovereign immunity,” also known as “crown’s immunity,” refers to the legal doctrine that exempts a state from prosecution in the event that any legal wrong is committed by the authority. This principle is primarily derived from the idea that “A King can do no wrong,” relying upon the legal maxim “rex non potest peccare“[3].

There isn’t a clear body of case law that is consistently applied by different jurisdictions globally to implement the concept of sovereign immunity. Instead, different efforts have been made to harmonize the enactment of sovereign immunity by expanding existing laws and, frequently, by establishing new, distinct laws, such as those in the US and the UK.

Although no such abolition has been put into practice, the Law Commission of India recommended in its First Report that the “immunity” feature of Indian jurisprudence be removed after reviewing the doctrine for review. When a citizen opposes to a government policy, it is protected by sovereign immunity from changing[4].

Evolution of the Doctrine

The immunity of the local sovereign has affected the development of the idea of sovereign immunity in England. Over the years, the concept of sovereign immunity has developed and has a lengthy history. Historians and academics have determined that the idea that “the king can do no wrong” is the primary basis of this notion[5].

According to legal theory, the monarch is incapable of having bad thoughts or intending to do something wrong[6]. The common law norm said that as the king’s courts were his own, they could not have any authority over him, so no civil or criminal action could be brought against him directly[7].

The idea that “the king can do no wrong” has its roots in the period of the Justinian law. Several claims made in Justinian’s Corpus Juris seem to corroborate the idea that the emperor possessed unrestricted authority. Specifically, two excerpts from the Digest, both credited to the eminent jurist Ulpian, are frequently quoted as elucidating Roman law: “Princeps Legibus Solutus Est”, which states that “the emperor is not bound by statute”, and “Quad Principii Placuit Legis Habet”, which states that “what pleases the prince is law”[8].

DOCTRINE OF SOVEREIGN IMMUNITY IN INDIA

The common law brought the defence of sovereign immunity to India. In the United Kingdom, the common law concept held that the King was above the law and that no action could be brought against him or his representatives for any wrongdoing. After the British arrived, the idea of sovereign immunity was incorporated into the Indian legal system. New laws, customs, beliefs, and concepts were introduced to India by the British throughout their colonization. The doctrine of sovereign immunity was one of these numerous new ideas that were introduced to our country[9].

Up until recently, this theory predominated Indian courts from the middle of the nineteenth century. Anger and requests for a review are inevitable when a legitimate lawsuit for damages is filed in court and is denied by an antiquated theory that doesn’t appear to apply. The Indian courts continued to restrict the extent of sovereign duties in order to ensure that the victims would obtain damages and to prevent legitimate claims from being rejected[10]. In its initial report, the Law Commission of India also suggested doing away with this antiquated theory. However, for a variety of reasons, the draft law to abolish this theory was never approved; as a result, the courts were left to determine whether or not this doctrine is consistent with the Indian Constitution[11].

Legal Provisions in India

Article 300 of the Constitution of India[12]

The Indian Constitution’s Article 300 addresses the Union’s and the State’s culpability for any action committed by the government. Section 176 of the Government of India Act, 1935, which made the Secretary of State for India’s liability coextensive, is the source of Article 300 of the Constitution[13].

Section 176 of the Government of India Act, 1935 served as the model for Article 300 of the Constitution. Section 32 of the Government of India Act, 1915, which originated from Section 65 of the Government of India Act, 1858, is where this may be traced back. “All persons and bodies politic shall and may have and take the same suits, for India as they could have done against the said Company,” said Section 65 of the Government of India Act, 1858. As a result, it will be evident that the Government of India and the Government of each State are descended from the East India Company through a series of enactments that started with the Act of 1858. Stated differently, the Government has the same obligation that the East India Company did before to 1858[14].

Section 47 of the Indian Patent Act, 1970[15]

Under Section 47 of the Indian Patent Act, 1970, the government must import or make any machine, apparatus, or other article for which a patent is granted, or any article made using a process for which a patent is granted, “for the purpose merely of its own use,” and “any process in respect of which the patent is granted may be used by or on behalf of the Government for the purpose merely of its own use,” in order to be eligible to receive patent rights.

The term “use of government” is used here in an open-ended manner, and the patentee is not entitled to receive remuneration in the event that such use occurs. The law appears to offer the state complete latitude to systematically ignore the rights that an inventor should have over their creation. It contradicts the case law of Article 300A of the Constitution, which establishes that everyone has a legal right to property, unalienable even against the State[16].

Mr. H.M. Seervai states in his highly regarded book “Constitutional Law of India” that sovereignty has two aspects: an external one and an internal one. The Union of India is the sole owner of the exterior aspect of sovereignty. Only when the Union of India interacts with other States and their citizens can an act of state occur. The Indian States are not entitled to claim foreign sovereignty under our Constitution, and they cannot even invoke an act of state[17].

The Motor Vehicles Act

Initially, the MV Act cases likewise adhered to the aforementioned criteria established by the Apex Court. However, the Supreme Court and many High Courts have frequently questioned the scope of sovereign immunity that applies in situations involving automobile accidents. It’s noteworthy to note that instances involving motor vehicle accidents have also been included in the previously mentioned idea of the division between the sovereign and non-sovereign duties of the state.

At the outset, the MV Act cases also followed the previously specified standards set by the Supreme Court. But in cases involving motor accidents, the Supreme Court and other High Courts have often questioned the extent of sovereign immunity. Remarkably, cases of car crashes have also been incorporated into the aforementioned concept of the separation of sovereign and non-sovereign governmental responsibilities[18].

Section 86 of the Civil Procedure Code[19]

Foreign state immunity is covered under Section 86 of the Civil Procedure Code (C.P.C.), which specifies that foreign states cannot be sued without the central government’s prior approval. The government may provide approval in some circumstances, but this will depend on the details of each individual instance[20].

The following circumstances may result in the permission being given[21]:

i. has explicitly or tacitly renounced the privilege granted by C.P.C. section 86; or

ii. the lawsuit that was filed against the party attempting to sue it; or

iii. a commerce of any type is subject to the Court’s jurisdiction; or

iv. has real estate situated inside such boundaries and plans to file a lawsuit in about such property for any obligations pertaining to it.

This clause does not take into account the most recent advancements in international law, which have been taking place since this provision was initially created, given the growth of cross-border litigation and alternative dispute resolution.

Role of Article 226 and Article 32

The court acknowledged that there is a public law claim for damages for human rights and basic freedoms that have been violated. This claim was viewed as an extra and separate remedy from the one provided in private law for damages linked to torts (civil wrongs) in order to enforce and defend these rights. The court emphasized that the remedies available in private law for tortious activities were distinct and independent from the public law demand for compensation under Articles 32 and 226. Stated differently, people would have the option to pursue typical private law damages for wrongdoings in addition to using constitutional remedies to seek compensation for infringement of their basic rights.

Notably, the court made it clear that public law remedies under Article 32 and Article 226 for the enforcement of basic rights are not covered by the doctrine of sovereign immunity. This meant that even in situations when the idea of sovereign immunity could have protected the government or its representatives, they could still be held responsible and liable for violating basic rights through these constitutional remedies.

Case Laws

P & O Steam Navigation Company v. Secretary of State[22]

The concept of sovereign immunity was first used in India in the P&O Steam Navigation Company v. Secretary of State case. The lawsuit was an event involving a plaintiff’s firm employee who was riding in a carriage drawn by the plaintiff’s horses on a Calcutta street. Government personnel’ irresponsibility is to blame for this disaster. So, in order to recover damages for the losses brought about by the accident, the plaintiff sued the Secretary of State for India.

The court’s conclusion in this instance depended on whether the careless act was carried out while carrying out a sovereign duty. The court distinguished between acts committed during the “exercise of non-sovereign functions,” or activities that might be carried out by private people without explicit governmental permission, and those carried out during the “exercise of sovereign authority.” Only when acts were performed in the course of non-sovereign powers was liability recognized.

Secretary of State v. Hari Bhanji[23]

A disagreement emerged in Secretary of State v. Hari Bhanji when salt was being transported between Bombay and Madras and the merchant was required to make up the difference at the port of ultimate destination. After making a reluctant payment, the retailer filed a lawsuit to get the money back. In this instance, the court decided that an action taken in the performance of a sovereign role might still be acceptable even if it would not be practical for a private citizen. Notably, the Madras Court emphasized that even if actions pertaining to public safety do not amount to acts of the State, the government may not be held responsible for them.

Nobin Chunder Dey v. Secretary of State[24]

In Nobin Chunder Dey v. Secretary of State, the plaintiff filed a claim for damages, claiming that his business had to close as a result of being unfairly refused a license to sell specific excisable pharmaceuticals and liquors. The Calcutta High Court rejected the suit, stating that the State is not liable for torts since it is performing sovereign powers in issuing or refusing permits. This decision established a precedent for later court rulings and strengthened the legal division between the State’s sovereign and non-sovereign powers.

State of Rajasthan Vs. Vidyawati [25]

Facts: Vidyawati stated that the driver of a vehicle that the State of Rajasthan owned and maintained for the Collector’s official usage drove it carelessly on the way to the Collector’s home, seriously injuring a pedestrian.

The Court rejected the State’s claim of sovereign immunity, ruling that the State would be accountable as driving a jeep did not include governmental responsibilities. In this decision, the Supreme Court also said that the State has welfare and socialistic duties in the present day, therefore the defense of State immunity based on antiquated, feudalistic ideas of justice is untenable.

Kasturi Lal Ralia Ram v. State of UP[26]

Facts: Someone was detained when it was suspected they were in possession of stolen goods. His belongings, which included a certain amount of money and silver, were confiscated from him and held in the Malkhana until the issue was resolved. A police policeman stole the gold and silver and made off with it, taking refuge in Pakistan. In addition to suing the State of Uttar Pradesh for the restoration of the gold and silver, the appellant also sought damages for losses brought on by the Meerut police’s incompetence.

When the case reached the Supreme Court, the judges determined that the police had not only broken the UP Police Regulations in this regard, but also had been careless in handling the plaintiff’s property after considering all of the pertinent facts. Despite this ruling, the plaintiff’s claim was denied by the Supreme Court as the nature of their work qualified them for the unique status of a sovereign authority. According to the court, the police officers’ violent behaviour was carried out in the exercise of their sovereign authority, and as a result, the state was not responsible for the appellant’s losses.

In other words, the court held that the State is not liable for any torts committed by its servants while exercising statutory powers, reversing what seemed to be the legal position following the Vidyawati case and reinforcing an additional qualification to the State liability.

CONCLUSION

The state must be endowed with enormous capabilities in order for the country to run smoothly. However, it can be fatal if the boundaries of these abilities are not established. There is a need for elaboration on the scenarios where Sovereign immunity can be utilized as a defence and where it cannot. To guarantee that the average person receives justice, the constant use of sovereign immunity as a defence for all State actions must be avoided. Although the idea of sovereign immunity has long been accepted in England, it has gradually been defined and a precise description of the state’s authority and immunity has been given.

It is evident that our grasp of this idea is always evolving. Numerous historians have challenged and interpreted it over the ages. Sovereign immunity has been limited to specific domains by the State Immunity Act of 1978 and the Crown Proceedings Act of 1947, among other laws and court rulings.

The Doctrine of Sovereign Immunity is a relatively new concept in India and has evolved with the times and thoughts. In contrast to the UK and the USA, India has not passed any special legislation pertaining to this idea. The concept of sovereign immunity essentially protected the state against lawsuits when it carried out its sovereign duties. However, throughout time, the line separating sovereign from non-sovereign duties became less apparent.

REFERENCES

Doctrine of Sovereign Immunity’, Neeraj Arora, available at http://www.neerajaarora.com/doctrine-of-sovereign-immunity/.
Limits of sovereign immunity available at https://blog.ipleaders.in/limits-sovereign-immunity/.
Thalia Kruger, New Principles of Sovereign Immunity from Enforcement in India: The Good, The Bad, And The Uncertain (Part I)Conflict of Laws (Jan 8, 2022) https://conflictoflaws.net/2021/new-principles-of-sovereign-immunity-from-enforcement-in-india-the-good-the-bad-and-the-uncertain-part-i/.
Development of the Doctrine of Sovereign Immunity in England and India, Ketana Krishna; SSRN-id2402176.pdf;
Crown and royal family Halsburys laws of England (4th edition) reissue.
The Digest of Justinian 1.3.31 (Alan Watson ed. & trans., 1985); Gordon, id. at 117 and See: Ulpian, cited in Justinian, Digest, 1.4.1pr; Gordon, id. at 117 as quoted in The Origins of Accountability: Everything I know about the Sovereigns’ Immunity; I learned King Henry III – Guy I. Seidman.
‘Sovereign Immunity- No Defence in Private Law’, Amardeep Garje; available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1347948.
Law Commission of India, First Report, pages 40-42, para–V.
https://indiankanoon.org/doc/1415462/.
M.P. Jain & S.N. Jain, ‘Principles of Administrative Law’. 5th Edition.
Krishna, Ketana, Development of the Doctrine of Sovereign Immunity in England and India (March 3, 2012). Available at SSRN: https://ssrn.com/abstract=2402176 or http://dx.doi.org/10.2139/ssrn.2402176.
https://indiankanoon.org/search/?formInput=section%2086%20cpc&pagenum=14.
Sonal Sharma, Gordon Blanke & Odysseas Repousis, Sovereign immunity in India- Absolute or Qualified? Kluwer Arbitration Blog Kluwer Arbitration Blog (Jan 6, 2022) http://arbitrationblog.kluwerarbitration.com/2014/06/04/sovereign-immunity-in-india-absolute-or-qualified/.
Sonal Sharma, Gordon Blanke & Odysseas Repousis, Sovereign immunity in India- Absolute or Qualified? Kluwer Arbitration Blog Kluwer Arbitration Blog

[1] Doctrine of Sovereign Immunity’, Neeraj Arora, available at http://www.neerajaarora.com/doctrine-of-sovereign-immunity/. Accessed on 06-01-2024.

[2] Limits of sovereign immunity available at https://blog.ipleaders.in/limits-sovereign-immunity/. Accessed on 06-01-2024.

[3] Thalia Kruger, New Principles of Sovereign Immunity from Enforcement in India: The Good, The Bad, And The Uncertain (Part I)Conflict of Laws (Jan 8, 2022) https://conflictoflaws.net/2021/new-principles-of-sovereign-immunity-from-enforcement-in-india-the-good-the-bad-and-the-uncertain-part-i/. Accessed on 06-01-2024.

[4] Thalia Kruger, New Principles of Sovereign Immunity from Enforcement in India: The Good, The Bad, And The Uncertain (Part I)Conflict of Laws (Jan 8, 2022) https://conflictoflaws.net/2021/new-principles-of-sovereign-immunity-from-enforcement-in-india-the-good-the-bad-and-the-uncertain-part-i/. Accessed on 06-01-2024.

[5] Development of the Doctrine of Sovereign Immunity in England and India, Ketana Krishna; SSRN-id2402176.pdf; Accessed on 06-01-2024.

[6] 1 Blackstone’s Commentaries (4th Edn) 246

[7] Crown and royal family Halsburys laws of England (4th edition) reissue. Accessed on 06-01-2024.

[8] The Digest of Justinian 1.3.31 (Alan Watson ed. & trans., 1985); Gordon, id. at 117 and See: Ulpian, cited in Justinian, Digest, 1.4.1pr; Gordon, id. at 117 as quoted in The Origins of Accountability: Everything I know about the Sovereigns’ Immunity; I learned King Henry III – Guy I. Seidman. Accessed on 06-01-2024.

[9] ‘Sovereign Immunity- No Defence in Private Law’, Amardeep Garje; available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1347948. Accessed on 07-01-2024.

[10] ‘Sovereign Immunity- No Defence in Private Law’, Amardeep Garje; available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1347948. Accessed on 07-01-2024.

[11] Law Commission of India, First Report, pages 40-42, para–V. Accessed on 07-01-2024.

[12] https://indiankanoon.org/doc/1415462/. Accessed on 07-01-2024.

[13] M.P. Jain & S.N. Jain, ‘Principles of Administrative Law’. 5th Edition. Accessed on 07-01-2024.

[14] Doctrine Of Constitutional Tort: Evolution and Evaluation- By: Rakesh Kumar – LL.M. (Delhi University) 2004. Accessed on 07-01-2024.

[15] https://indiankanoon.org/doc/1314646/. Accessed on 07-01-2024.

[16] Abrogating Sovereign Immunity in Patent Infringement Cases in India: Retreating Without Disgrace by Chakravarti, Devaditya Thadani, Karmanye Chablani, Varun Nayak, Alok. Accessed on 07-01-2024.

[17] Fourth Edn. 1993 (Vol. 2), Reprint 2008, Universal Law Publication Co., Delhi, p.2131. Accessed on 07-01-2024.

[18] Krishna, Ketana, Development of the Doctrine of Sovereign Immunity in England and India (March 3, 2012). Available at SSRN: https://ssrn.com/abstract=2402176 or http://dx.doi.org/10.2139/ssrn.2402176. Accessed on 07-01-2024.

[19] https://indiankanoon.org/search/?formInput=section%2086%20cpc&pagenum=14. Accessed on 07-01-2024.

[20] Sonal Sharma, Gordon Blanke & Odysseas Repousis, Sovereign immunity in India- Absolute or Qualified? Kluwer Arbitration Blog Kluwer Arbitration Blog (Jan 6, 2022) http://arbitrationblog.kluwerarbitration.com/2014/06/04/sovereign-immunity-in-india-absolute-or-qualified/. Accessed on 07-01-2024.

[21] Sonal Sharma, Gordon Blanke & Odysseas Repousis, Sovereign immunity in India- Absolute or Qualified? Kluwer Arbitration Blog Kluwer Arbitration Blog (Jan 6, 2022) http://arbitrationblog.kluwerarbitration.com/2014/06/04/sovereign-immunity-in-india-absolute-or-qualified/. Accessed on 07-01-2024.

[22] Peninsular and Oriental Steam Navigation Company v. Secretary of State for India (1861) 5 Bom. H.C.R. App. I,p.1

[23] Secretary of State v. Hari Bhanji (1882) ILR 5 Mad 273

[24] Nobin Chunder Dey v. Secretary of State (1876) ILR 1 Cal 12

[25] State of Rajasthan Vs. Vidyawati AIR 1962 SC 933

[26] Kasturi Lal Ralia Ram v. State of UP AIR 1965 SC 1039

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