This article is written by Shreya Lal, LLB student of KLE college of Law , Mumbai during her internship with LeDroit India.
State immunity is a justification for mistakes that the state or its agents appear to have committed for reasons of public order. Therefore, even if all elements of an actionable claim are present, liability can be avoided by providing this justification. The doctrine of sovereign immunity is based on the common law principle, adopted from British jurisprudence, that the king is not wrong and cannot be guilty of personal negligence or wrongdoing and as such cannot be held responsible for the negligence or wrongdoing of his king can be held responsible service. Another aspect of this doctrine was that it was a feature of sovereignty that a state could not be sued in its own courts without its consent. This doctrine was widespread in Indian courts from the mid-19th century until recently. If a real claim for damages is brought to court and is contradicted by an old doctrine that appears to have no relevance, resentment and calls for revision are to be expected. In order not to allow genuine claims to be nullified, Indian courts continued to restrict the scope of official functions to allow victims to receive damages. The Law Commission of India also recommended the abolition of this outdated doctrine in its first report in . But for various reasons, the law to abolish this doctrine was never passed and thus it was left to the courts to rule on the compatibility of this doctrine with the Indian Constitution. Before proceeding to discuss the scope of sovereign immunity as it has been elaborated over the years, it is necessary to take a look at Article 300 of the Indian Constitution, which establishes the responsibility of the Union or State for acts of government.
To add the legal aspect
Originally in India the distinction between sovereign and non-sovereign functions was maintained in relation to the principle of government immunity from the torts of its officials. There are no state liability laws in India. It is Article 300 of the 1950 Constitution of India that establishes the responsibility of the union or state in relation to any act of government. Section 300 of the Constitution grew out of Section 176 of the Government of India Act, 1935. Under Section 176 of the Government of India Act, 1935, the responsibilities of the Minister of Foreign Affairs of India were analogous to those of the Indian Minister for Foreign Affairs under the Government of India Act, 1915, which in turn shared with that of the East India Company before the Government of India Act 1858.Section 65 of the Government of India Act 1858 provided that all persons should and may bring such remedies and proceedings against the Secretary of State for India as they would have done against the East India Company. From the chain of decrees beginning with the 1858 Act, it follows that the government of India and the individual state governments are the successors of the East India Company. In other words, the government’s responsibility is the same as that of the East India Company before 1858.
An addition to Article 300
A general description of section 300 states that the first part of the section deals with the manner in which claims and proceedings may be brought by or against the government. It provides that a state can sue and be sued on behalf of the Union of India and that a state can sue and be sued on behalf of the state. Part Two provides, inter alia, that the Union of India or any State may sue or be sued in respect of its affairs in cases similar to the Dominion of India or an equivalent Indian State, as the case may be. The case could have been sued or sued if the Constitution had not been enacted. Part Three provides that Parliament or the State legislatures have authority to take appropriate action in relation to the matters covered by Article 300, paragraph 1.
Types of sovereign immunities:
The state generally benefits from two forms of immunity:
1) Immunity from jurisdiction: A state’s immunity from jurisdiction arises from the belief that it would be improper for a state’s courts to to accuse another state of its jurisdiction. Therefore, state entities are immune from the jurisdiction of the courts of another state. However, this immunity can in principle be lifted by the state authority. In many jurisdictions, a reference to arbitration is sufficient to demonstrate a waiver of immunity from jurisdiction by the state. However, some developing countries may be reluctant to submit to international arbitration, believing that arbitration is dominated by Western principles and would not give a developing country a fair hearing. These same developing countries may feel safer submitting to arbitration under UNCITRAL rules, which are often seen as more culturally neutral than those of the ICC or other Western courts.
2) Immunity from Enforcement: The State also enjoys immunity from enforcement as it would be unlawful for the courts of one State to seize another State’s property. In principle, the immunity from enforcement can also be waived. Waiving immunity from execution can be difficult for a government to manage. As a general proposition in most jurisdictions, certain state assets should not be available for enforcement of an arbitral award; for example, the foreign embassies or consular representations of the country. Therefore, the private party may need to be provided with a method of confiscating certain government property, possibly by carefully defining the possessions available for confiscation .
Recent contemporary world updates
To ensure people’s personal liberties against abuses of public authority, the Supreme Court has created a new remedy for awarding damages through lawsuits under Article 32 and Article 226 of the Constitution. In the case of
Rudal Shah v. State of Bihar the Supreme Court awarded damages in the actual complaint for the first time.
In Bhim Singh v. State of Rajasthan the principle laid down in Rudal Shah was further extended to cases of illegal detention. In a Section 32 petition, the Apex Court awarded Rs. 50,000 in compensation for wrongful arrest and detention.
The Last Case of State of A.P. v. Challa Ramakrishna Reddy makes it clear on this point that the distinction between sovereign and non-sovereign powers is not relevant today. The Supreme Court ruled that the doctrine of sovereign immunity was no longer valid
Conclusions
Sovereign immunity is a common law doctrine that has its origins in court decisions. Historically, the doctrine of sovereign immunity was justified by the fact that the king could not make mistakes, the diversion of funds needed for other government purposes could bankrupt the state and delay its growth, the state could carry out its duties more efficiently and effectively could fulfill if they were not faced with the danger of a floodgate of tort, and it would be more convenient for the individual to suffer than for society to suffer inconveniences. Whatever justifications for sovereign immunity may have initially existed, they are no longer valid in today’s society. Sovereign protection against tort. It perpetuates injustice by forbidding redress for wrongdoing simply because of the wrongdoer’s status. Sovereign immunity contradicts the essence of tort law, that liability follows negligence and that individuals and corporations are liable for the negligence of their agents and employees acting in the performance of their duties. We conclude that sovereign state immunity from tortious liability is obsolete and no longer justified. While we waive the State’s sovereign immunity from tortious liability, our decision should not be construed as imposing on the State liability in tort for the exercise of discretionary acts in its official capacity, including legislative, judicial, quasi-legislative and quasi-judicial functions. “While the rule is that no claim may be made against the sovereign without his consent, it is equally clear that a clear non-discretionary official duty can be enforced if its performance is arbitrarily refused, and that if a person is to be harmed because an official threatens to breach an official or statutory duty for which no adequate remedy can be obtained by law, that conduct may be prohibited.” Although we recognize the sovereign immunity of the State from To waive tort liability, I conclude that the waiver must be anticipatory to allow legislators to implement and plan ahead by purchasing liability insurance or creating the necessary funds for self-insurance.
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