Sovereign immunity is a concept that was developed in the common law
jurisprudence. In earlier times we did not adhere to the concept of a government
with elected individuals. Literature of the past has clearly shown us that kings
were responsible for well-being of their subjects and they were the ones who
ruled the state on aid and advice of their ministers. Though the decision-making
power and the ability to form rules were all given to the kings to decide.
to assuming such power, they also were required to be protected against any
punishment (punitive or deterring) because they had to run the state effectively
and efficiently. Hence the doctrine of sovereign immunity evolved where it was
stated that a sovereign or state cannot commit a legal wrong and is immune from
civil suit or criminal prosecution.
The legal maxim that recognizes this
principle is Rex non potest peccare which translates to the king can do no
wrong. The principle also extends to say that a king cannot be held liable for
acts of misconduct or personal negligence and neither can he be held liable for
acts of his servants.
Rex non-potest peccare is a Latin legal maxim which means that 'the king can do
'. It is also called as doctrine of Sovereign Immunity or Crown
Sovereign immunity originated in England in 1788 in the case of Russell v.
Inhabitants of Devon. In that case, a British plaintiff sued his own town to
recover damages done to his wagon by a bridge that was in need of repairs. The
court held that the town was not liable, in part because it was better that an
individual should sustain an injury than that the public should suffer an
inconvenience. This rationale supporting municipal immunity was first adopted
in the United States in Massachusetts in 1812 and first appeared in Vermont
This maxim having two meanings can be explained as follows:
- The sovereign i.e. the ruler is independent of any jurisdiction.
- Prerogative of the Crown extends not to do any injury, being created for
the benefit of the people, it cannot be exerted to their prejudice.
As Sir William Blackstone, an English Jurist, in his Commentaries on the Laws of
England (1765) wrote that:
The King, moreover, is not only incapable of doing
wrong, but even of thinking wrong: he can never mean to do an improper thing: in
him is no folly or weakness. This explains us the essence of the doctrine.
Due to some act of the state, A had to suffer few losses, however he was not
able to sue the state for it as the state was protected by the principle laid by
the maxim 'Rex Non Potest Peccare
Kinds of Sovereign Immunity:
Immunity to jurisdiction- This simply means that if one government official or
state authority commits a wrong in another state, the state where the authority
is from cannot be called to this state and tried for a matter. Therefore, states
are free from jurisdiction of courts of another state.
For example, A, an Indian, committed a crime in Pakistan. India is protected
under this immunity from being tried by courts of Pakistan because it enjoys the
doctrine of sovereign immunity. Though this immunity can be waived off by the
Immunity from execution- Even if a case arises where a person or entity of one
state is tried by another state and a judgment is passed against the entity,
immunity is given to a state against enforcement of this ruling because it would
be against the principles of justice for one court, to rule for seizing away
property of another state.
Position in India:
The Law Commission of India in its very first report recommended the abolition
of this outdated doctrine. But for various reasons, the draft bill for the
abolition of this doctrine was never passed, and thus it was left to the courts
to decide on the compatibility of this doctrine in accordance with the
Constitution of India.
In India through different cases and government decisions we can conclude that
sovereign immunity as a concept has restricted use. There are certain pieces of
legislations which encompass the principle of sovereign immunity which are:
Section 86 of the Civil Procedure Code (1908): This section lays down that no
suit must be instituted against foreign states. But the suit itself points
towards an exception where a suit may be instituted with the prior permission of
the government of the particular state which is aggrieved by the act of another
The Diplomatic Relations (Vienna Convention) Act, 1972 gives certain diplomatic
immunities to states and people who are on missions or are ambassadors in other
countries. Certain sections of this convention are followed by India where the
sovereign immunity/power is extended to family, servants and staff members of
these ambassadors/ diplomatic officials.
Provision in Constitution of India:
Article 300 of the Indian Constitution states the following:
- 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 provisions 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.
- If at the commencement of this Constitution:
- any legal proceedings are pending to which the Dominion of India is a
party, the Union of India shall be deemed to be substituted for the Dominion
in those proceedings, and
- any legal proceedings are pending to which a Province or an Indian State
is a party, the corresponding State shall be deemed to be substituted for
the Province or the Indian State in those proceedings.
States do not enjoy immunity under tenancy disputes which has been reiterated in
the case of Syrian Arab Republic v. AK Jagodia. Also, a point to observe is
that states are also not protected when the wrong is committed under commercial
or contractual transactions.
In fact, in the case State of Maharashtra
v. Czechoslovak airlines
, sovereign immunity could not be availed by the
state because even though the airline was a department of the foreign state, the
relief sought was based on a commercial transaction which is not covered under
the said immunity. The same has been the position of the courts in various other
cases such as the Jute mills case (1993) and the Ethiopian airlines case
Limitations of Sovereign Immunity:
The first test to analyze whether a particular action falls under the principle
is done by the government where the government needs to consider the facts and
circumstances of the case entirely and must provide the authorities with a
reasonable opportunity to explain why the suit must be initiated. After this the
government can make a decision while providing reasons for accepting or refusing
the application. The decision of the government can be put up for judicial
review. This is considered to be the second stage of testing the case where if
the courts believe that the government has not passed a right decision, they can
give the matter back to the government to reconsider and pass a fresh order.
Discussion of Relevant Cases:
In the case of Peninsular and Oriental steam navigation company v Secretary of
State, the court tried to define the principle more categorically by
separating acts committed by East India Company into sovereign and non-sovereign
acts. Thus, the court examined the vicarious liability of a foreign power in the
context of their transactions in India.
The follow up case was Secretary of State v. Hari Bhanji , where the courts
held that the only acts committed by East India Company which are protected are
acts of state. But in both these cases, a distinction between sovereign and
non-sovereign functions could not be identified.
In State of Rajasthan v. Vidhyawati, the husband of the respondent was
fatally injured while walking along a public road by a jeep car driven by a
driver employed by the appellant State. The car and its driver were being
maintained for the official use of the District Collector and at the time of the
accident, the car was being driven back from a workshop after some repairs to
the Collector's residence. On a suit for damages by the widow and minor daughter
of the deceased, while the lower court absolved the State from any liability,
the High Court found the state liable. It held that the state was
responsible for the acts committed by the driver in course of his employment
like any other owner would be. Thus, the principle evolved to say that the state
or owner was liable for acts of his servants which wasn't followed earlier.
But the court's competence regarding this principle was questioned in Kasturi
Lal v. State of UP
, where the court held that arrest, seizure and abuse of
police power is a sovereign function and hence is protected by immunity.
Recent decisions of courts have truly made us understand that this principle of
immunity is an evolving concept and the Indian courts have not been particularly
successful in drawing an exact difference between sovereign and non-sovereign
functions. But in one of the latest judgments of State of AP v. Challa
Ramakrishna Reddy, the the court held that there is no point of
differentiating between functions in the present times and that sovereign
immunity as a concept itself is no longer valid.
Problem with the Principle:
India as a country has continuously evolved the principle of sovereign immunity
with powers being equally distributed between the state and the judiciary. One
improvement which may help evolve the principle more is that sovereign and
non-sovereign functions must be clearly identified and included under the civil
procedure code. There are many decisions in which the courts have had to apply
the principle only because there are no specific grounds laid down for the
applicability of immunity. Hence it is necessary for this demarcation to be
there so that courts can easily adjudicate (decide) upon matters/issues
The Doctrine of Sovereign Immunity
or Crown Immunity
, as it is
said in Latin: Rex non potest peccare
- This principle might be suitable during ancient
times where there used to Rulers, Kings, Queen and Royal Family ruling a
particular country but not of much relevance during the modern times especially
in a democratic country such as India.
The world is constantly evolving,
developing and progressing ever since so must the laws and legal principles so
that their purpose could be served even during the present in accordance with
the changes that might have occurred as a result of advancement and
modernization. Gone are those days when King/Ruler used to be considered as the
Supreme Power and one who possess divinity.
A human being by its nature will
commit mistakes. The point being that giving such immunity to the ruler/
government is inherently unfair, and in case of negligence or mistake on the
part of the State, it should be held liable to compensate for the loss, damage
or injury happened to the aggrieved party who might have suffered due to a wrong
act done by any of the state body or government authority.
With respect to the scope and interpretation of the Doctrine in Indian Legal
Context, as also mentioned above, there needs to be certain consideration and
clarification in the regard of Functions performed by the Government so that
their liability can be ascertained in case of any wrong committed or injury
caused to any citizen by the state.
- Constitution of India by VN Shukla, 13th Edition.
- Commentaries on Laws of England by Sir William Blackstone (1765)
- Vermont League of Cities & Towns (VLCT) Mac Info Sheet: Sovereign Immunity
Also read: https://www.academia.edu/43780090/REX_NON_POTEST_PECCARE
- 100 Engl. Rep. 359 at 362 (1788, K.B.).
- Mower v. Leicester, 9 Mass. 247 (1812)
- Baxter v. Winooski Turnpike Co., 22 Vt. 114 (1849)
- Book I: Of the Rights of Persons: Chapter VII: Of the King's Prerogative
- 116 (2005) DLT 444
- (1978) 80 BOMLR 495
- (1861) 5 Bom HCR 1 (App).
- ILR (1882) 5 Madras 273.
- AIR 1962 SC 933: 1962 Supl. (2) SCR 989.
- VN Shukla, Constitution of India, Eastern Book Company, 13th edn,
Reprinted 2021 with Supplement 2020, Pg no. 906.
- Kasturi Lal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039, 1046: (1965)
1 SCR 375.
- Civil Appeal No. 3969 of 1989; (2000) 5 SCC 712: AIR 2000 SC 2083.