Introduction: Rule of Law and Sovereign Immunity
The rule of law and doctrine of sovereign immunity when seen and studied at first glance, they both seems to be of contradictory in nature, but from their deep analysis we will came to know that they both may appear contradictory in nature but in reality, they both act as supplements of one another and are interdependent. And when these concepts are applied reasonably they helps for proper functioning of democracy and its institutions in India.
Where balancing of these two concepts maybe challenging but it is certainly not impossible to balance them. So throughout this blog, we are going to look for the following considerations,
- Their definition
- How they can be balanced
- And why they should be balanced
Examples of Sovereign Immunity
You all may have come across from various instances where for certain acts of government like defence, healthcare, international decisions etc. the government is not held to be accountable in court of law. Like you cannot go to court and ask the court to bring the state as party in court to answer why it had made defence deal with Russia despite fear of sanctions from USA. Or why it declared war against Pakistan named operation sindoor. Because all these activities of government are protected by sovereign immunity.
Apart from it there are some stances where we have seen government being accountable in court of law for its actions like commercialization, road construction etc. ‘RTI’ is one such tool for making the government accountable.
Why? Because all these are non-sovereign functions of government for which it can be make as party in court of law.
Concept of Rule of Law
Now regarding rule of law, you all may have listened that law is supreme, nothing is above law, Parliament can amend and change any part of constitution but not its basic structure. No one is above law. And the constitution of India will act as grand norm for the nation. All these principles lays the foundation of rule of law.
We’ll have encountered all these examples in our daily life, and we’ll will be astonished when we’ll know that all these examples are the part of principles that we are going to relate today.
Rule of Law
The doctrine of rule of law establishes the supremacy of law, and incorporates all individuals, government entities, under the subjugation of law. Everyone is equal before law [Article-14], and no one is above law. The constitution of India will be the grand norm for all laws and will guide as the supreme power delegater.
This principle was originated in England. Pioneered by eminent jurists, like A.V. Dicey, Mary Glendon. This principle was incorporated as basic foundation stone of constitution of India. And this it revolves around three aspects,
Three Aspects of Rule of Law
| Aspect | Explanation |
|---|---|
| Supremacy of Law | It basically means that law is the supreme power holder and delegater, where there is no one who’s above law, and everyone will be equal before it, no matter their position, authority, power and status. Even the organs of governance [legislature, executive, judiciary] will also be under the subjugation of law. It was made to promote accountability and maintain reasonable check and balance. |
| Equality Before Law | This principles states that everyone will be treated as equal before the law. And it also layed the foundation for Article 14, of the constitution which grants equality to its each and every citizen irrespective of any discrimination and controls and restricts the power of government to snatch those rights arbitrarily. |
| Independence of Judiciary | For promoting the very legal spirit of our constitution it is important to establish reasonable hegemony of the guardian of the constitution i.e. judiciary and to provide them some sense of reasonable upper hand over other organs to create check and balance between them, for ending arbitrariness and reinforcing reasonability. |
Sovereign Immunity
The doctrine of sovereign immunity was originated from a Latin maxim, “Rex Non Potest Peccare”, which simply means that a King can do no wrong. This doctrine justifies every actions of a king and reinforces that he should not be made accountable in front of his subjects, for his actions.
This legal protection was transferred later on to the government of that state, which protects it from being sued in the court of law as party, for its actions, without their consent. And with evolving needs of society, their demands, beliefs, criterias, principles and experiences also changed which ultimately lead to evolution of the given doctrine and lead to its bifurcation into two theories based on its functions, namely, Absolute Theory and Restrictive Theory.
Absolute Theory and Restrictive Theory
Where Absolute Theory provides pax immunity to the state for its each and every actions performed. And Restrictive Theory provides pax immunity to state for its sovereign functions, but make state accountable for its non-sovereign functions.
Now, coming to our main point of discussion, that whether the establishment of balance between the two theories is possible or not. So through our bi-focal lens we’ll try to balance them from both Indian and foreign perspective.
Balancing Sovereign Immunity With Rule of Law
So the doctrine of sovereign immunity can be balanced with rule of law by applying proper balance of both principles via test of reasonableness and by rejecting absoluteness of both principles. Now, this balance can be achieved through judicial review, judicial interpretations, and enactment of statutes in accordance with emerging demand of society.
Because we being the largest democracy in the world, where there is respect for every section of society and liberty to express our ideals and we ourself being the one of the biggest legal transplanter cannot just reject any of them based on their absoluteness and we have to create a proper balance for effective working of the organs of governance of our democracy.
Landmark Judgement in India
This approach has been taken by the courts of India, as seen in some of the important landmark judgements like, Peninsular and Oriental Steam Navigation Co. v. Secretary of State judgement of 1861, this case lead to the bifurcation of functions of state into two, namely Sovereign Functions and Non-Sovereign Functions.
Sovereign Functions
Where Sovereign Functions talks about functions that are exclusively to be performed by the state and we as private entities have no stake over it. We cannot sue them in court of law for the actions performed by them under this functions.
The reason behind such immunity to the state was to provide them with some level of autonomy subject to reasonability, so that they can work for greater welfare of nation as whole, even if it costs harm to some sections of society, because for preventing greater harm some small harms are permitted to be allowed, as per utilitarianism theory.
For this the state need some independence so that they can work efficiently without fear of being sued as party in court of law. Because these are some actions that have to be performed exclusively by the state for proper working of nation.
- Defence
- Foreign affairs
- Communication
- Declaration of war
- Maintaining peace
- Declaring emergency
- Public health
Non-Sovereign Functions
Whereas Non-Sovereign Functions, talks about the functions that can be performed by both the state and we as individual. And therefore the state don’t has absolute shielding while performing this type of functions.
Commercialization, road construction and forming contracts are some of the examples that are performable by both the stakeholders.
Like you can also enter into contract for making a road near Deendayal Port, likewise the government can also ask for tender of the road making. Here both stakeholders can make mistakes and hence they can be sued as party in court of law.
This immunity forms the basic foundation of Article 300 of the Indian Constitution, which establishes state as entity that can be sued or can sue in court of law as party.
Limitations and Judicial Errors
But every coin has dual sides, so as this balancing dilemma also has. Like if proper judicial interpretations are not done (its humane to make mistake, and judges are not exception), or due to any legal discrepancies all this may lead to faulty legal binding precedents.
As seen in case of Kasturi Lal v. State of UP, 1965, where the court was unable to balance the given rules properly resulting in unsatisfactory decisions.
Therefore for its proper balancing rigorous interpretation with core understanding is very important to create proper balancing of the given principles.
Foreign Perspective on Absolute Immunity
Other points of contentions may also arise like excessive protection to state under sovereign immunity may lead to arbitrariness from their side, making them less accountable to the public in general.
Which may result in misuse of power, as seen in MENA (Middle East North Africa) countries, which follow absolute immunity thereby protecting the head of the state for all of his actions.
- Arab Spring
- Civil wars
- Inconsistent governance
- Destruction of rule of law
- Suspension of basic rights like freedom of speech
Japan also followed absolute immunity before Meiji restoration by USA, and even after the restoration of actual power of the king, absolute immunity still persisted there for a very long period of time.
Its results are in front of us, World War 2, Hiroshima and Nagasaki nuclear blast. North Korea is also the example of absolute immunity follower, due to which the citizens don’t have even basic rights.
Excessive Application of Rule of Law
Apart from it, if rule of law is also applied blindly and arbitrarily then it can also hamper the proper growth of society.
Because law is made for society in large, by the society and for the society, and its not that society is made by law, for law.
Therefore their over-usage should be prevented by applying balance between them, subject to reasonability.
Article 361 and Restrictive Immunity
Article 361 of the Constitution is the perfect example where this balance is applied.
This article talks about immunity to the President, Governor and Rajpramukh. Where they are not held answerable and accountable for their actions that they have done during their office holding.
Such immunity is provided not to that person per se but to the position because it is the highest respectable position of the state.
This immunity is temporary and not permanent. And such immunity ends when that person is removed from his office by impeachment (Article 61).
Conclusion
At last based on the foregoing analysis, it can be propounded that the legal doctrines of sovereign immunity and rule of law may appear to be independent, but in practical approach they are interdependent, and acts as compliment of each other.
The aim should be to prevent arbitrariness of both the doctrines and create a reasonable check and balance between them.
At the end what we want to convey is that throughout the blog we have tried to balance them efficiently, and we can conclude that excess of something is not better neither less of something is.
There has to be some balance between them for the proper functioning of democracy, where both principles are applied properly for uplifting “Kanoon Ka Raj”. References:
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- National Council of Educational Research and Training. (2022). Themes in World History: Textbook for Class XI. NCERT.
- (n.d.). www.constitutionofindia.net/articles/article-300-suits-and-proceedings/
- (n.d.). https://blog.ipleaders.in/limits-sovereign-immunity/
- (n.d.). https://www.constitutionofindia.net/articles/article-361-protection-of-president-and-governors-and-rajpramukhs/
Thanks to my respected mentors:
- Dr. Vikas upadhayay sir
- Aishwarya sir
