Rule of State Sovereign Immunity
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Rule of State Sovereign Immunity
The Old and archaic concept of Sovereign immunity that “King can do no wrong” still haunts us, where the state claim immunity for its tortious acts and denies compensation to the aggrieved party.
The doctrine of sovereign immunity is based on the Common Law principle borrowed from the British Jurisprudence that the King commits no wrong and that he cannot be guilty of personal negligence or misconduct, and as such cannot be responsible for the negligence or misconduct of his servants. Another aspect of this doctrine was that it was an attribute of sovereignty that a State cannot be sued in its own courts without its consent.
During the orthodox middle ages, the power of the clergy was considered absolute in England. And the Crown, by virtue of protecting the interests of the church enjoyed sovereign immunity.
Pope Gelasius I opined on the general principles that underlie sovereign immunity:
There are two powers, August Emperor, by which this world is chiefly ruled, namely, the sacred authority of the priests and the royal power. Of these that of the priests is the more weighty, since they have to render an account for even the kings of men in the divine judgment. You are also aware, dear son, that while you are permitted honorably to rule over human kind, yet in things divine you bow your head humbly before the leaders of the clergy and await from their hands the means of your salvation. In the reception and proper disposition of the heavenly mysteries you recognize that you should be subordinate rather than superior to the religious order, and that in these matters you depend on their judgment rather than wish to force them to follow your will.
In a constitutional monarchy the sovereign is the historical origin of the authority which creates the courts. Thus the courts had no power to compel the sovereign to be bound by the courts, as they were created by the sovereign for the protection of his or her subjects.
Sovereign immunity is available to countries in international court but if they are acting more as a contracting body (example: making agreements in regards to extracting oil and selling it), then sovereign immunity may not be available to them.
Sovereign Immunity and its Exceptions
About two decades ago, hardly anyone would have cared about waivers of state sovereign immunity from suits based on constitutional law. Traditionally, waivers played only a small and subordinate role in the long saga of state sovereign immunity theory.
POSITION IN UNITED KINGDOM
The position was drastically altered for the United Kingdom by the Crown Proceedings Act 1947 which made the government generally liable, with limited exceptions, in tort and contract. Even before then it was possible to claim against the Crown with the Attorney-Generals fiat (i.e., permission) (a petition of right). Alternatively, Crown servants could be sued in place of the Crown, and the Crown as a matter of course paid any sums due. Further, mandamus and prohibition were always available against ministers because they derive from the royal prerogative.
However, as of 2011 lawsuits against the sovereign in his or her personal and private capacity remain inadmissible in British law. The State Immunity Act 1978 regulates the extent to which foreign states are subject to the jurisdiction of British courts.
POSITION IN UNITED STATES OF AMERICA
The sovereign immunity that the federal Constitution guarantees to the states of United States of America is a personal privilege that the states may waive at pleasure, but cases exploring such waivers have been rare. Far more attention has been paid to other mechanisms by which private parties may sue states.
POSITION IN INDIA
Courts in India have taken a stand akin to that of England. Since the era of the British Raj, sovereign immunity has been rejected at numerous occasions. The courts have gone on to distinguish between welfare and state functions of the government. Sovereign immunity is rejected in cases of tort committed during the discharge of a welfare function. It is granted in the case of sovereign functions performed by the state.
In the following project, we shall get a perspective of the rule of sovereign immunity, its exceptions and its waiver in different nations.
INDIA
The point as to how far the State was liable in tort first directly arose in P. & O. Steam Navigation Co. Vs. Secretary of State. The facts of the case were that a servant of the plaintiffs company was proceeding on a highway in Calcutta, driving a carriage which was drawn by a pair of horses belonging to the plaintiff. He met with an accident, caused by negligence of the servants of the Government. For the loss caused by the accident, the plaintiff claimed damages against the Secretary of State for India.
Sir Barnes Peacock C. J. (of the Supreme Court) observed that the doctrine that the “King can done wrong”, had not application to the East India Company. The company would be liable in such cases and the Secretary of State was thereafter also liable.
The Court also drew the distinction between sovereign and non-sovereign functions, i.e. if a tort were committed by a public servant in the discharge of sovereign functions, no action would lie against the Government – e.g. if the tort was committed while carrying on hostilities or seizing enemy property. The liability could arise only in case of “non-sovereign functions” i.e. acts done in the conduct of undertakings which might be carried on by private person-individuals without having sovereign power.
The aforesaid judgment laid down that the East India Company had a twofold character:
(a) As a sovereign power and
(b) As a trading company.
The liability of the company