SOVEREIGN IMMUNITY


Author: Vanisha Mishra, Institute of Law Nirma University









Sovereign Immunity may be a legal immunity from the prosecution of any legal wrong committed by the State. It provides immunity from civil also as prosecution. It's an age old and archaic concept wherein; it's maintained that “the king can do no wrong”. It's for the justification for the wrongs committed by state and its representatives, so as to take care of State’s unquestionable authority over its subjects which the state isn't alleged to follow the principles meant for its subjects. it's often guarded on the idea of grounds of public policy. regardless of that each one the claims of public policy are present, liability are often avoided on the grounds of the ‘public policy’ justification.


The origin of this doctrine is from the principles of Common Law. British jurisprudence suggests that the ‘king is supreme’ and thus, cannot commit any wrong. Thus, he can't be held responsible for the negligence or misconduct of his representatives. Also, the king can't be tried under the principles meant of his subjects. It is necessary to require a glance at Article 300 of the Constitution of India which spells out the liability of the Union or State in acts of the govt.


Article 300 of the Indian Constitution reads as:

1. the govt of India may sue or be sued by the name of the Union of India and therefore the Government of a State may sue or be sued by the name of the State any may, subject to any provision which can 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 reference to their respective affairs within the like cases because the Dominion of India and therefore the corresponding provinces or the corresponding Indian States may need sued or been sued if this Constitution had not been enacted.


2. If at the commencement of this Constitution –

i) any legal proceedings are pending to which the Dominion of India is party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and

ii) Any legal proceedings are pending to which a Province or an Indian State may be a party, the corresponding State shall be deemed to be substituted for the province or the Indian State in those proceedings.


An analysis of Article 300 provides that the primary part of the article contains details about procedure of suits and proceedings (by or against the Government). It says that a State may sue and be sued by the name of the Union of India and a State may sue and be sued by the name of the State. The Second part provides, that the Union of India or a State may sue or be sued if affairs of the case seem related, on the similar line as that of Dominion of India or a corresponding Indian State because the case could also be, may need sued or been sued of the Constitution had not been enacted. The Third part provides that the Parliament or the legislatures can make appropriate provisions in reference to the subject covered in Article 300(1).


Types of Sovereign Immunity

The State generally benefits from two sorts of immunity –

1) Immunity to jurisdiction –

It consists of whether the state has the facility to call the other state within the court of law, under its jurisdiction. That is, State is usually immune from the jurisdiction of the other state, therefore it can't be held liable in other sate’s court of law.


2) Immunity from execution–

It consists of immunity from following any execution or direction given by any State’s court of law, i.e., a state isn't susceptible to follow the orders of the other court. Moreover, its improper that a state seizes the property of the other state.

Sovereign Functions & Non-Sovereign Functions


Need for Distinction

One of the foremost prominent question that arises in these cases is that the classification of any function as a sovereign or non- sovereign function. Thus, so as to clarify this distinction, the Supreme Court has analysed such a distinction, to be selected the idea of, whether the act so committed is within the pursuit of their welfare ideal, as, various governments enter into many commercial and other undertakings and activities which haven't any relation with the normal concept of governmental activities (i.e. welfare activity for its citizens), which don’t have any relation with the normal concept of governmental activities during which the exercise of sovereign power is involved”


Therefore, it's necessary to limit the world of sovereign functions, in order that acts committed in reference to commercial or profitable objective and not traditional governmental activities undertaken by the target of welfare, don't go uncompensated, i.e., compensation to be provided just in case of any negligence or misconduct.

Interpretation:


The British jurisprudence was supports the feudalistic notions of justice which maintained that the King was incapable of doing wrong, and, therefore, albeit any such claim against the crown arises, the king can't be sued in his own courts. However, since a republican sort of govt was established, on the lines of a socialist state, where commercial and profit making activities are undertaken, there's no justification, in theory, or publicly interest, that the State shouldn't be held responsible for its acts.


However, in India, consistent with the Competition Act, 2002, it specified the activities undertaken by the govt that specially need to be considered as a sovereign function, including all departments of Central Government handling nuclear energy, space, defence and currency are excluded from the Act’s purview, thus, establishing a distinction between the sovereign and no sovereign functions.


Conclusion

Thus, an effort has been made to clarify the excellence between sovereign and non-sovereign functions of the State, with the assistance of principles laid down within the various judgments rendered by the Apex Court. However, on the question of ‘what is sovereign function’, different opinions are given time and again and attempts are made to elucidate in several ways.

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