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General Defences: Sovereign Immunity

Sovereign immunity, a legal doctrine that grants immunity to states from civil and criminal jurisdiction, has been a subject of considerable debate and evolution in the Indian context. This research paper aims to provide a comprehensive analysis of sovereign immunity in India, tracing its historical development, examining relevant case law, and evaluating its contemporary relevance. The paper also explores the challenges and potential reforms related to sovereign immunity in India.

Sovereign immunity is a legal principle that prevents governments from being sued without their consent. Rooted in historical legal traditions, it reflects the idea that the government, as the representative of the state, should be shielded from excessive legal interference while carrying out its duties. Originally, monarchs in ancient societies enjoyed complete immunity to maintain state stability and prevent disruptions caused by legal challenges. However, as legal systems evolved, this concept adapted to modern society.

Today, there are two main types of sovereign immunity: absolute and limiting immunity. Absolute immunity grants broad protection to the state against most legal claims. It acknowledges the government's supremacy and ensures its functions proceed without constant legal scrutiny. In contrast, limiting immunity places certain restrictions on government immunity, allowing individuals to sue in specific circumstances. Sovereign immunity continues to play a crucial role in balancing the interests of government with individual rights, adapting to the changing demands of modern legal systems while preserving the central role of governments in maintaining order and stability.

Governments should be shielded from pointless litigation and given the freedom to conduct business as usual thanks to sovereign immunity. Although the coverage of sovereign immunity varies from nation to nation,
  • Preserving Governmental Functions:
    As a vital safeguard for governmental operations, the idea of sovereign immunity protects the state and its institutions from excessive legal burdens. It becomes clear that this legal principle is essential to supporting efficient governance as we examine the function of sovereign immunity in protecting governmental functions. Through the prism of sovereign immunity, this section explores the crucial issues and requirements related to maintaining governmental operations.
  • Ensuring unfettered government operations:
    Maintaining governmental duties is essential to the state's efficient operation. Governmental organizations are able to conduct their business without worrying about lawsuits thanks to sovereign immunity, which serves as a shield. This immunity is especially important in circumstances when legal actions can prevent the quick decisions required for efficient governance.
  • Maintaining Stability And Order:
    Sovereign immunity is a cornerstone for preserving stability and order within legal systems. This section underscores its pivotal role in ensuring a predictable legal framework, facilitating effective governance, and ensuring the smooth functioning of state institutions. A primary function of sovereign immunity is shielding the government and its agencies from excessive legal challenges. This safeguard is indispensable for maintaining operational stability in government activities. Without immunity, the constant threat of lawsuits could disrupt government proceedings, impede decision-making, and hinder the delivery of essential services.
  • Encouraging Public Services:
    In the complex web of governance, sovereign immunity shows up not only as a defense against legal challenges but also as a driving force behind the efficient delivery of public services. The symbiotic relationship between sovereign immunity and the promotion of public services is explored in this section, offering insight on how immunity supports the provision of crucial services to the general public.

Investment in infrastructure and development: To improve the quality of life for its population, governments make significant investments in development and infrastructure projects. Investors and governmental organizations are given some comfort by sovereign immunity that their plans won't be thwarted by a barrage of legal issues. This promotes the execution of large-scale initiatives that benefit the general population and the economy.

  • Absolute Immunity:
    Absolute immunity is one aspect of sovereign immunity that needs to be thoroughly examined. The government and its agencies enjoy an unrivaled level of protection thanks to the concept of absolute immunity, which is deeply ingrained in legal traditions. According to this definition of immunity, certain government officials are completely immune from being held accountable for their conduct, regardless of the circumstances.
  • Judicial and legislative act:
    The fact that judicial and legislative acts are covered by total immunity is a significant feature. In order to preserve their independence and ability to make decisions, judges frequently receive complete immunity while doing their duties. The same protections apply to legislators, who cannot be held accountable for conduct made while performing their duties as lawmakers. Maintaining the independence of various governmental branches depends on this safeguard.
  • Restrictive Immunity:
    Restrictive immunity, in contrast to absolute immunity, permits legal actions against the government under certain conditions. This more moderate approach balances the need to protect the government from excessive litigation with the necessity to hold it accountable for wrongdoing. Restrictive immunity, also known as "limited" or "qualified" immunity, allows legal proceedings in specific situations, ensuring government accountability for its actions rather than providing blanket protection as absolute immunity does. This section explores the characteristics, legal implications, and practical consequences of this important concept.
  • Balancing With Individual Right:
    A complicated legal environment is created by the meeting point of individual rights and governmental immunity. While the government is protected from unchecked litigation by the idea of sovereign immunity, it is crucial to consider how this doctrine can coexist with the fundamental rights of individuals. In the context of tort law, this section explores the challenging challenge of striking a balance between the protection of individual rights and sovereign immunity.

The constitutional imperative: The requirement of the constitution to protect individual rights is at the core of the issue. Fundamental rights serves as a safeguard against the arbitrary actions of governments and are inscribed in constitutions all across the world. A nuanced strategy that acknowledges the requirement of governmental activities while respecting the values of fairness and accountability is necessary to strike a balance between fundamental rights and sovereign immunity.

Historical Development Of Sovereign Immunity In India

India's historical growth of sovereign immunity and the transformation of its legal and political system are intricately entwined. The idea of sovereign immunity states that no legal action or criminal investigation may be brought against the government without approval. Over the years, India has made substantial revisions to this idea, reflecting changes in constitutional development, legal doctrine, and outside influences.

  1. Colonial Era Influence:
    The British colonial era is when sovereign immunity in India first emerged. The Indian government was granted the same immunity from legal action as the British Crown had at this time. The concept was founded on the notion that the sovereign was above the law and so immune from legal action. A number of legal regulations and judicial rulings recognized this immunity.
  2. Post-Independence Development:
    After India gained independence, the concept of sovereign immunity continued to shield the government from legal actions, as supported by the Government of India Act, 1935, and subsequent laws. However, with the enactment of the Indian Constitution in 1950, a new legal framework emerged. While the Constitution emphasized fundamental rights and the rule of law, it did not explicitly address sovereign immunity. Over time, the judiciary assumed a crucial role in defining government liability, especially in cases involving fundamental rights. A pivotal moment occurred in the 1970s with the landmark case of Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh. In this case, the Supreme Court clarified that the government could be held accountable for its actions, emphasizing that sovereign immunity could not shield it from charges of unlawful or unconstitutional behavior. This choice demonstrated a move toward a more rights-centric strategy that constrained the reach of immunity and held the government responsible.
  3. International Perspective:
    International legal norms had a greater impact on the dynamics of sovereign immunity as India became more open to globalization in the 1990s. The nation joined international conventions and treaties that had an impact on domestic legislation. As the idea of limited sovereign immunity gained popularity, it was implied that immunity would not always apply, particularly in business and contractual concerns. Cases involving state trading corporations and contract disputes, where the government was made liable for its contractual commitments, were clear examples of this trend.

Legal Framework of Sovereign Immunity in India:
  1. Constitutional Provisions: The 1950-adopted Indian Constitution does not specifically mention sovereign immunity. However, a number of constitutional clauses and tenets influence how the notion is governed by the law:
    • According to Article 300[1], the names of the Union of India and the corresponding states may be used to bring legal action against or receive legal action from the Government of India and the governments of the states. Although this clause doesn't specifically address sovereign immunity, it paves the way for the government to be involved in court cases.
    • The doctrine of sovereign functions has been upheld by Indian courts, who agree that the government should be exempt from liability when doing its duties. The idea of non-justiciability is frequently upheld by courts in matters involving governmental activities connected to policy-making and public administration.
  2. Legislative Framework: The boundaries of sovereign immunity in India have been defined in part by the country's legal system:
    • State Immunity Acts: India lacks a stand-alone piece of legislation that addresses sovereign immunity. However, immunity principles have been included in several laws, such as the State Immunity Act. For instance, the government is granted immunity under certain circumstances by Section 86[2] of the Code of Civil Procedure, 1908.
    • Public Authorities Protection Act: The Public Authorities Protection Act is one of the laws that some Indian states have passed to safeguard public officers and authorities for actions taken while doing their official duties.

India has signed a number of bilateral investment treaties (BITs) that include clauses addressing the subject of sovereign immunity in relation to investment disputes. Dispute resolution provisions, which may entail international arbitration, are frequently included in these treaties.

Case Law Analysis:
P&O Steam Navigation Company v. Secretary of State[3]
In the case, a significant legal precedent was established in India regarding the doctrine of sovereign immunity. The incident involved a plaintiff's company employee who was transporting goods in a carriage pulled by two horses from Garden Reach to Calcutta. While passing through the government dockyard, an accident occurred when government workers carrying a large iron rod blocked the road.

The carriage driver alerted the workers, causing some confusion, and the carriage approached dangerously. Fearing for their safety, the workers dropped the iron rod, which led to one of the horses being injured.

The plaintiff's company sought compensation for the losses they attributed to the negligence of Government of India employees. This case marked the first instance in India where the concept of sovereign immunity was tested in court. It highlighted the question of whether the government could be held liable for the actions of its employees.

Ultimately, this case set a precedent by demonstrating that the government could be held responsible for the negligence of its employees under certain circumstances, challenging the traditional notion of sovereign immunity in India. The court said that the Secretary of the State was responsible for the harm caused by careless government workers, even though the careless action wasn't part of their official duties.

The court made a distinction between actions taken in the name of "sovereign power" and actions taken in the name of "non sovereign function." Here "non sovereign function" refers to actions taken in the course of activities that private people could do without having such power. If there were duties that were not sovereign, the liability could only come up. This East India Company was two things at once: (a) a sovereign power; and (b) a trade company.

The company could only be held responsible for its business dealings and not for things it did as part of its assigned sovereign power. In this case, the plaintiff was hurt while the defendant was performing a non-sovereign duty, such as maintaining the dockyard, which was something that anyone could do without giving up sovereign power.

The Secretary Of State vs Hari Bhanji [4]
In this case, The tax rate on salt went up between Bombay and Madras ports, and the merchant had to pay the extra amount at the port where the salt was going. He paid anyway, but he later sued to get the money back.

The court has said that there is no difference between sovereign and non-sovereign functions. They have said that if something is done in line with municipal law and within the limits of that law's powers, then it is still legal, even if it is done in the course of a sovereign function and not by a private person.

It's important to note, though, that the Madras judgement also says the government might not be responsible for acts that protect the people, even if they are not acts of state. The judgement was upheld in Ross v. Secretary[5] of State by Madras High Court and also in Kishanchand v. Secretary of State[6] of the Allahabad High Court.

However, in Secretary of State v. Cockraft[7], building or fixing a military road was seen as a royal duty, and the Government was not responsible for the carelessness of its employees when they stacked gravel on a road, which caused an accident that hurt the plaintiff and her carriage. It's a more liberal form of the Hari Bhanji case, so it's been slightly changed.

Nobin Chunder Dey v. Secretary of State[8]
The Calcutta High Court fully considered the comments when it turned down the plaintiff's claim for damages because he was wrongfully denied a licence to sell certain drugs and liquors that were subject to excise taxes, which caused his business to close. The court said that granting or refusing a licence was a sovereign function that did not fall under the State's tortious liability. Since then, many court decisions have been based on the difference between the sovereign and non-sovereign tasks of the State.

Nilabati Behera Vs. State of Orissa [9]
It clearly mentioned that a proceeding under Article 32[10] before the Supreme Court or any High Court is a remedy available in public law and the principle of sovereign immunity does not apply in the case of public law. It is only a defense in private law based on tort.

DK Basu v. State of West Bengal[11]
In the DK Basu v. State of West Bengal case, the Indian Supreme Court ruled that "sovereign immunity" cannot shield the government from responsibility for deaths in custody or abuse. This landmark decision established that sovereign immunity is not absolute and cannot excuse the government from its duty to protect citizens' lives and freedoms. Prior to this ruling, there was a prevailing belief that the government was immune from legal action.

However, DK Basu's judgment made the government more accountable, especially in cases involving arrests. This case has set a precedent for holding the government accountable for incidents like deaths in custody and torture and has influenced discussions about extending sovereign immunity in areas like consumer rights and environmental protection.

In essence, the DK Basu judgment significantly altered the application of sovereign immunity in India, ensuring that individuals who are arrested retain their fundamental rights and that the government can be held responsible for its actions.

Interplay of Human rights and Sovereign Immunity
Human rights and the state's right to be safe from outside threats are still being balanced by the law. Sovereign immunity is a rule of law that says the government or a state body can only be sued or held liable in its own courts to a certain extent. Human rights, are basic rights and freedoms that every citizen has. Most of the time, foreign agreements and national laws protect them.

These points should be kept in mind when you think about how human rights and sovereign security connect with each other:
  • International Human Rights Treaties: People who live in states often sign international agreements and treaties that say they must protect and support the human rights of people who live in those states. There are laws that make states uphold human rights. Two examples are the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
  • Exceptions to Sovereign Immunity: There are times when a state can't be immune from being sued because it violated people's human rights. This is allowed by some international treaties and common international law. It's possible for states to be sued for breaking human rights even if they say they can't be.
  • Customary International Law: is a type of international law that is based on how states act and what most people think is right. By customary international law, states can be held responsible for major violations of human rights, even if they say they are immune. This has become more clear over the past few years.
  • Domestic Laws and Courts: In many places, it is the domestic laws and courts that decide human rights claims against the government. International human rights standards are now part of the rules of some countries. This means that people can take claims about human rights to their own national courts.
  • International Courts: The European Court of Human Rights and the Inter-American Court of Human Rights are two examples of international courts that can hear cases involving states. It is up to these courts to hear cases against states and decide if human rights have been broken.
  • Changes in the Law: When it comes to how human rights and sovereign security work together, the law is always changing. Laws and past cases are always getting better as new international deals, court decisions, and state practices come out.

If someone's rights are violated, it's important to remember that sovereign immunity may not work the same way everywhere and may rest on the specifics of each case. Also, the law may change over time as new rules and standards are put in place.

Suggested reforms in the concept of Sovereign Immunity in context to current scenario
Reforming the principle of sovereign immunity in India is a complex endeavor, as it requires a delicate balance between safeguarding the state's interests and ensuring that individuals with legitimate grievances against the government can seek justice. Here are several potential changes to consider:
  1. Clarification of Sovereign Immunity: To begin, Indian lawmakers could establish a clear definition of "sovereign immunity" within the country's legal framework. This definition should outline the specific circumstances under which the government can assert immunity, particularly in cases related to its commercial activities. This clarification would help distinguish between government functions and commercial endeavors.
  2. Waiver of Immunity: Certain laws or regulations could explicitly state that sovereign immunity does not apply, especially when government actions harm individuals or businesses. This would simplify the process for affected parties to seek compensation.
  3. Human Rights Exceptions: Enshrine in the law that sovereign immunity does not shield government actors who violate human rights. This provision would empower individuals to pursue legal action if they believe their human rights have been violated by the government.
  4. Alternative Dispute Resolution: Encourage the use of alternative conflict resolution mechanisms, such as mediation or arbitration, to expedite dispute resolution and provide a more accessible avenue for individuals seeking justice.
  5. Insurance and Compensation Funds: Establish insurance or compensation funds to cover cases resulting from government actions, particularly those causing harm to individuals. These funds can ensure that victims receive compensation even when direct lawsuits against the government are barred due to immunity.
  6. Transparency and Accountability: Enhance government transparency and accountability by facilitating oversight through independent bodies, public inquiries, or ombudsman offices. This proactive approach can reduce the need for legal action by addressing complaints at an earlier stage.
  7. International Compliance: Align Indian laws with international human rights standards and agreements. Ensuring that domestic laws are consistent with global norms regarding human rights violations is crucial.
  8. Case-by-Case Evaluation: Encourage the courts to assess each case individually, taking into account the nature of the claim, the government's actions, and the impact on individuals' rights when determining the applicability of sovereign immunity.
  9. Consideration of Public Policy: Any proposed changes should consider broader public policy concerns, including the delicate balance between individual rights and the state's administrative needs.
  10. Stakeholder Engagement: Seek input and participation from stakeholders who have a vested interest in these reforms. Consulting with those affected by sovereign immunity decisions can lead to more effective and just changes.

Reforming India's sovereign immunity principle is a significant undertaking that requires careful consideration of legal, policy, and human rights implications. The ultimate changes will depend on the country's political climate, legal landscape, and alignment with evolving international standards. The goal should be to protect the state's interests while ensuring that individuals and groups with valid claims against the government have avenues to seek justice.

References:Legal ReferencesBooks:
  • Salmond & Heuston, Law of Torts (Sweet & Maxwell, 1996)
  • Dr. R. K. BANGIA, The Law of Torts including Consumer Protection Laws India, [( Allahabad Law Agency , 21st Edition)]
  • Ketana Krishna, Development of the Doctrine of Sovereign Immunity in England and India, 2012
  1. Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, (1861) 5 Bom. H.C.R. App. I, p. 1
  2. The Secretary Of State vs Hari Bhanji, (1882) ILR 5 Mad 273
  3. Kishan Chand vs The Secretary Union Of India, 1994 IIIAD Delhi 1473
  4. Secretary of State v. Cockraft, (1916) ILR 39 Mad 351
  5. Nobin Chunder Dey v. Secretary of State, (1876) ILR 1 Cal 12
  6. Nilabati Behera Vs. State of Orissa citation, 1993 SCR (2) 581
  7. DK Basu v. State of West Bengal citation, AIR 1997SC 610
  8. Kasturi Lal Ralia Ram Jain v. State of Uttar Pradesh, 1965 SCR (1) 375
  • Lexology, last visited 9 October
  1. INDIA CONST. art. 300
  2. Code of Civil Procedure, 1908, � 86, No. 5 of 1908
  3. Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, (1861) 5 Bom. H.C.R. App. I, p. 1
  4. The Secretary Of State vs Hari Bhanji, (1882) ILR 5 Mad 273
  5. Ross v. Secretary, 19 Ind Cas 353
  6. Kishan Chand vs The Secretary Union Of India, 1994 IIIAD Delhi 1473
  7. Secretary of State v. Cockraft, (1916) ILR 39 Mad 351
  8. Nobin Chunder Dey v. Secretary of State, (1876) ILR 1 Cal 12
  9. Nilabati Behera Vs. State of Orissa citation, 1993 SCR (2) 581
  10. INDIA CONST. art. 32
  11. DK Basu v. State of West Bengal citation, AIR 1997SC 610

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