Limits of Sovereign Immunity

The Author, Nikhilesh Koudinya, is a 2nd-year, BA.LLB student at Symbiosis Law School, Pune. He is currently interning with LatestLaws.com.

INTRODUCTION

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. Due 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. When we closely analyze this concept there are two kinds of sovereign immunity the crown/governments enjoy:

1. 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 state entity.
2. Immunity from execution- even if a case arises where a person or entity of one state is tried by another state and a judgement 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.

To further dwell into this subject we must observe steps taken by India to apply the principle in law and observe whether the principle is applied unconditionally in our country or are there reasonable restrictions imposed. 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 state.

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.

However, one thing to observe is that in every situation the consent of the government is not needed. When a nation state is suing another state under some special law the consent of the government is not required. Such special laws may include Consumer Protection Act or Carriage by Air Act etc. India has also been a party to sign the UN Convention on Jurisdictional Immunities but this convention has not been promulgated yet around the world. Also, India as a country has only signed the convention and hasn’t ratified it, hence it is not completely bound by the provisions which are mentioned under the act.

In fact, under the landmark judgement of Mirza Ali Akbar Kasani v. United Arab Republicand other[1] it was held that when a suit is instituted with the consent of the government then the other state cannot claim sovereign immunity in such a case. Thus, we must look into transactions which do not fall under the ambit of such immunity:

TRANSACTIONS THAT DO NOT ENJOY SOVEREIGN IMMUNITY

As stated earlier in the introduction states do not enjoy immunity under tenancy disputes. 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[2] 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 (2011). Such immunity can also not be claimed when the issue relates to tenancy disputes which has been reiterated in the case of Syrian Arab Republic v AK Jagodia[3]

Now that we have observed the transactions in which such immunity is not granted, we will now focus on certain case laws in India where the courts have decided on the ambit of immunity:

CASES RELOVING AROUND SOVEREIGN IMMUNITY

In the case of Peninsular and Oriental steam navigation company v Secretary of State[4] 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 Hari Bhan Ji v Secretary of State[5]  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. Vidyawati[6] the court 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 courts competence regarding this principle was questioned in Kasturi Lal v. State of UP[7] where the court held that arrest, seizure and abuse of police power is a sovereign function and hence is protected by the immunity. But future 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 judgements of AP v. Challa Ramakrishna Reddy[8] the courts have held that there is no point of differentiating between functions in the present times and that sovereign immunity as a concept is no longer valid.

LIMITS 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. Thus, we can conclude that with respect to allowing or not allowing the principle the courts and the governments perform the functions on a case to case basis.

CONCLUSION

Thus, we can conclude by saying that 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 applicability of immunity. Hence it is necessary for this demarcation to be there so that courts can easily adjudicate upon issues concerning immunity.

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