An Analysis of the maxim:

Rex Non Potest Peccare

Legal Language
Dr Racchana D Fadia

First Year LL.B.

Roll No: 12

Division: A

JITENDRA CHAUHAN COLLEGE OF LAW

NAME OF FACULTY: PROF. SNEHA ANILKUMAR

 Acknowledgement
I would like to express my sincere thanks to Respected Teacher Prof. Sneha Anilkumar and
our Respected Principal Professor Dr Priya J. Shah Ma’am at our esteemed
Jitendra Chauhan College of Law, for their continued and selfless valuable guidance and
support in completing my project. Without their support and suggestions, this project would
not have been completed.

I would like to express my gratitude towards the Office and Library staff of Jitendra Chauhan
College of Law for all the back end support to ensure our access to books and journals for
preparation of the project topics.

I would like to appreciate all the senior colleagues and batchmates at our College for their
support and coordination

Place: Mumbai

Date: 24.04.2022

Name: Dr Racchana D Fadia

TABLE OF CONTENTS
1. Introduction

2. Origin & History Of Maxims

3. Limitations & Drawback Of Maxims

4. Origin & History Of The Maxim: Rex Non Potest Peccare

5. Later Developments In The Doctrine Of Sovereign Immunity

6. Application Of Sovereign Immunity In Indian Law

7. Interpretation Of This Maxim In A Famous Indian Case Law

8. Exceptions to Sovereign Immunity

9. Position Of The Doctrine Of Sovereign Immunity In India

10. Other Case Laws In India On The Evolution Of Doctrine

11. Limitations Of Sovereign Immunity

12. Conclusion

13. Bibliography
INTRODUCTION

A legal maxim is a universally accepted principle or proposition of law or a legal policy

generally stated in the Latin language. The Latin maxims mostly arrived from the medieval
era in the European states that considered Latin as their legal language. A legal maxim is
seemingly brief-expression like term of any fundamental rule. It is often instructive and
relates to some specific actions. These principles enabled the courts to deliver justice in a
more pristine manner by applying existing laws in deciding issues fairly. Maxims don’t
possess the authority of law but when they are incorporated while deciding issues of framing
laws, they form a sound basis of judgements.1

ORIGIN & HISTORY OF MAXIMS

Maxim is derived from the Latin word ‘axioma’ which meant, the first principle; for instance,
geometry. Axioms are the first principles and hence self-evident in nature. Therefore all the
subsequent prepositions could be deduced from them but since they are fundamental rules,
they themselves are underived. They hold their own authority. So, a legal Maxim would be a
self-evident first principle without any contradiction.2

Various people of eminence in the field of Law, Historians, and Social sciences have
interpreted the importance of Maxims in different light.
For example, a Hungarian-British polymath, Michael Polanyi, who made a profound
contribution both to the philosophy of science and social science, said, “Maxims are rules,
the correct application of which is part of the art which they govern”.3 

However, Sir James Fitzjames Stephen, an English lawyer, judge and writer was of al
altogether different opinion that Michael Polanyi, and said, “It seems to me that legal
maxims, in general, are little more than pert headings of chapters. They are rather minims
than maxims, for they give not a particularly great but a particularly small amount of

1
Sushmita Choudhary, “Incorporation of the maxims in Indian laws and their importance”, iPleaders,
https://blog.ipleaders.in/incorporation-maxims-indian-laws-importance (accessed on April 18, 2022)

2
Ibid.

3
Ibid.
information. As often as not, the exceptions and disqualifications to them are more
important than the so-called rules”.4

And another eminent personality of those times, Sir James Mackintosh, a Scottish jurist, a
politician as well as historian made his statement on maxims as follows, “Maxims are the
condensed Good sense of Nations”.5

Maxims have been widely discussed amongst historians of the legal field considering the
different theories of maxims which were comprehended and the relationship between maxims
and law.

LIMITATIONS & DRAWBACK OF MAXIMS

As discussed above, since the concept of Maxims and their applicability in Law posed
challenges because of conspicuous diversity in the way of interpretation of the maxims, a
problem was already recognized by some early writers and mentioned above. For example,
some writers have a difference of opinion over maxims and rules. Some consider them
identical while some considered them different. Also the changing trends of civilizations
would make the older maxims irrelevant. Therefore the significance of maxims in legal
theory was not totally established in legal practice. Various law reports suggested that the
theoretical derivations of maxims were always not enough to resolve the complexities of
actual life problems.6

Also since the Maxims originated in the medieval era, where the rule of Monarchy was
absolute, many of such early origin maxims appear obsolete in the current age of democracy
and elected Governments, in most countries across the globe. Hence, the literal meaning of
the maxims and their derivations and applications in the current changing socio-political-
geographical scenario is sometimes very prudent as we discuss one such Maxim here-in
below.
4
Sushmita Choudhary, “Incorporation of the maxims in Indian laws and their importance”, iPleaders,
https://blog.ipleaders.in/incorporation-maxims-indian-laws-importance (accessed on April 18, 2022)
.
5
Ibid.

6
Ibid.
ORIGIN & HISTORY OF THE MAXIM :REX NON POTEST PECCARE”
The Latin Maxim Rex Non Potest Peccare literally means that “The King can do no wrong.”
This maxim is derived from English common law which essentially originated in the early
Middle Ages in the King’s Court (Curia Regis), a single royal court set up for most of the
country at Westminster, near London.7

The King or The Crown at the time, were inherently trusted to be embodied with the
following three main principal attributes:

a. sovereignty which bestowed the rights of supreme power

b. perfection which implied creation, next to God

c. and perpetuity which gave them the right of being everlasting

These attributes were attached to the Sovereign (King), by the constitution, and formed it’s
constitutional character and royal dignity. On the other hand, the principal duty of the
Sovereign was to govern his subject under the precepts of law and always act for the welfare
of its subject and hence it was a constitutional derivation that King cannot do any wrong. It
was a given that The Crown/Sovereign was not only incapable of doing wrong, but was
incapable of even of thinking wrong. Thus it implied that the prerogative of the Sovereign
was not to do any injury, as it functioned for the welfare of the people and hence it cannot act
to their prejudice.8

Thus, it is an ancient and fundamental principle of the English Constitution that the King can
do no wrong. As discussed above, this maxi means, first, whatever is exceptionable in the
conduct of public affairs is not to be imputed to the King, nor is he answerable for it
personally to his people, for otherwise it would totally destroy the constitutional

7
Kiralfy, A. Roland , Lewis, Andrew D.E. and Glendon, Mary Ann. "Common Law." Encyclopedia Britannica,
October 30, 2020. https://www.britannica.com/topic/common-law. (accessed on April 18, 2022)

8
Herbert Broom, A Selection of legal Maxims : Classified and Illustrated, 7th Ed. (Philadelphia : T. & J. W.
Johnson & Co., Law Booksellers, Publishers And Importers, 1874), 47
independence of the Crown to function efficiently; and secondly, that the prerogative of the
Crwon extends not to do any injury.9

Thus, in such times, when there was no concept of a government with elected individual, the
King/Crown were responsible for the well-being of their subjects while they ruled on the
advice of their advisors and ministers. Although only the King could make the decision and
form rules on such advice. Hence they were required to be protected against any actions
arising out of such instance of wrong information or wrong advice given by such ministers /
advisors, because they had to run the State effectively and efficiently.

Since, there existed such a possibility of the false inducement of the Sovereign / Crown by
the immediate advisors/ministers to the Crown or any one acting in authority under them, ,
therefore, in such matters of unintentional breach of private rights of any subject because of
the misinformation or inadvertence, where the Crown was induced to act against the welfare
of its subject - the law did not suppose the Crown to have deliberately committed such
unwise or injurious acts towards its subject. Instead, it declared that the King was deceived in
such acts and therefore such orders would become void upon the proof of deception either by
or upon those agents whom the Crown thought proper to rely for such advice.10

The King, it is said, is not under the dominion of man, but of God and the law, and it is not to
be presumed that he will do or sanction anything contrary to the law, for his own subjects
Thus upon the principle of this maxim, the crown cannot be prejudiced by the neglect or
wrongful acts of its servants, nor by errors in orders, which was, as a matter of course,
amended.11

Thus, in its true meaning, the maxim: Rex Non Potest Peccare implied that the Crown, was
independent of and was not subordinate to any other earthly power or jurisdiction; and that if
anything was amiss in the condition of public affairs it was not to be imputed to the
King/Crown, so as to render him answerable for it personally to his people.
9
Ratanlal Rancchoddas, Dhirajlal Keshavla Thalore, Guru prasanna Singh, Ratanlal & Dhirajlal's the Law of
Torts. 26th Ed. (Gurgaon : LexisNexis, 2010), 41

10
Broom, A Selection of Legal Maxims, 52-53

11
George Frederick, Legal Maxims With Observations And Cases :
Part I, America Ed.. (New York : Baker, Voorhis & Co., Law Publishers,1878), 187-188.
This was sometime known as the doctrine of “SOVEREIGN IMMUNITY” which arose from
the notion that the English Monarch was Sovereign and hence cannot be held liable for acts
of misconduct or personal negligence and neither can he be held liable for acts of his
servants.

LATER DEVELOPMENTS IN THE DOCTRINE OF SOVEREIGN IMMUNITY

However, the increased activities of the Crown, made it the largest employer of men and the
largest occupier of property. Hence difficulty was felt when the wrongdoer was not
identifiable. Thus the above system was proving wholly inadequate and the Law needed to
change.12

Therefore, the principle was modified by the Crown Proceeding Act, 1947. This act declared
that the Crown is liable in all cases, in which if it were private person of full age and
capacity, it would be liable to action against such servant/agent of crown on the ordinary
principle of vicarious Liability. Liability in Tort also extends to breach by the Crown of a
statutory duty. The law of contributory negligence also applies in proceedings against the
Crown.13

The English law has further developed because of enforcement of the Human Rights Act,
1998 from 2nd October 2000 which gives effect to the European Convention on Human
Rights. It provides that it is unlawful for any public authority to act in a way which is in
violation with the rights of another person/entity.14

APPLICATION OF SOVEREIGN IMMUNITY IN INDIAN LAW

12
Ratanlal Rancchoddas, Dhirajlal Keshavla Thalore, Guru prasanna Singh, Ratanlal & Dhirajlal's the Law of
Torts. 26th Ed. (Gurgaon : LexisNexis, 2010), 42

13
Ibid.

14
Ibid., 43
The maxim that the King can do no wrong and the resulting total sovereign immunity has
never been applied in India.15
However, as per the Article 361 of the Constitution of India, the Heads of State, i.e. the
President of India and the Governors of States (Raj Pramukha) have personal immunity and
they are not answerable to any Court for the exercise and performance of the powers and
duties of their offices.16

There are certain pieces of legislations which encompass the principle of sovereign immunity
which are as follows:
Section 86 of the Civil Procedure Code (1908): This section lays down that no suit must be
instituted against foreign states without the consent of the Central Government certified in
writing by a Secretary to that Government. But the suit can 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.17

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.18

INTERPRETATION OF THIS MAXIM IN A FAMOUS INDIAN CASE LAW

In the matter of State of Rajasthan v. Vidyawati, AIR 1962 SC, the Hon’ble Supreme Court
held that the State was liable for the tortious act like any other employer. The facts in this
case were that the defendant was a driver employed by the State. While he was driving a jeep
car to a workshop for repairs, he knocked down a person (Vidyawati’s husband) who was

15
Ratanlal Rancchoddas, Dhirajlal Keshavla Thalore, Guru prasanna Singh, Ratanlal & Dhirajlal's the Law of
Torts. 26th Ed. (Gurgaon : LexisNexis, 2010), 43

16
Ratanlal Jain, Legal Language, 4th Ed. (Allahabad : Central law Agency, 2010), 386

17
Nikhilesh Koudinya, “Limits of Sovereign Immunity”, https://www.latestlaws.com/articles/limits-of-
sovereign-immunity (accessed on April 18, 2022)

18
Ibid.
injured, and later died. The deceased’s widow filed a suit against State of Rajasthan for
damages. The plea taken by the State ‘king can do no wrong’ was rejected in this case. The
theory of vicarious liability was applied and it was held that ‘any wrongful acts done by
servant during the course of employment the master will be held responsible’. 19 Thus the
Apex court of India, set a highly fair and just precedent through this case that the State was
liable for the tortious act of its servant, like any other employer.

EXCEPTIONS TO SOVEREIGN IMMUNITY

Usually, when a foreign state is involved, a prior permission from Central Government is a
must to initiate a cause of action, however, in every situation the consent of the government is
not needed such as when a nation state is suing another state under some special law. Such
special laws may include Consumer Protection Act or Carriage by Air Act etc

The States also do not enjoy immunity under tenancy disputes which have been reiterated in
the case of Syrian Arab Republic v. AK Jagodia.

Also, the 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 (2011).

Under a landmark judgement of Mirza Ali Akbar Kasani v. United Arab Republic and other,
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.20

POSITION OF THE DOCTRINE OF SOVEREIGN IMMUNITY IN INDIA

19
Jain, Legal Language,386.

20
Nikhilesh Koudinya, “Limits of Sovereign Immunity”, https://www.latestlaws.com/articles/limits-of-
sovereign-immunity (accessed on April 18, 2022)
In its first report, the Law Commission of India recommended the abolition of this outdated
doctrine. But for varied 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, as discussed above, such as in the
matter State of Rajasthan v. Vidyawati (supra), we can conclude that sovereign immunity as
a concept has restricted use.

In one of the latest judgements of the State of Andhra Pradesh v. Challa Ramakrishna
Reddy, the courts have held that there is no point of differentiating between sovereign
functions in the present times and that sovereign immunity as a concept is no longer valid.21

OTHER CASE LAWS IN INDIA ON THE EVOLUTION OF MAXIM & ITS DOCTRINE

In the case of Peninsular and Oriental steam navigation v. Secretary of State, the court tried
to explain and define the doctrine of sovereign immunity and its take on the policy of
governance. It distinguished the acts done by the public servants under the delegated exercise
of sovereign powers and acts done by them in the conduct of other (private) activities. Also
observing that the East India Company were not Sovereigns and therefore could not claim all
the exemptions of a Sovereign. Thus, the court differentiated between acts done in the
conduct of private undertakings and the legal obligation of foreign countries in the context of
their activities in India. However, The Madras and Bombay High Courts, did not accept
the reservation made in Peninsular and Oriental steam navigation v. Secretary of State that
the Government was not liable if the tort was committed in the exercise of Sovereign powers
and the views expressed by these High Courts was that the Government would also be liable
for torts committed in the exercise of sovereign powers.22

Another case was Hari Bhan Ji v Secretary of State, where the courts held that the only acts
committed by East India Company which are protected are acts of state. However in both

21
Nikhilesh Koudinya, “Limits of Sovereign Immunity”, https://www.latestlaws.com/articles/limits-of-
sovereign-immunity (accessed on April 18, 2022)

22
Ratanlal Rancchoddas, Dhirajlal Keshavla Thalore, Guru prasanna Singh, Ratanlal & Dhirajlal's the Law of
Torts. 26th Ed. (Gurgaon : LexisNexis, 2010), 44
these cases a distinction between sovereign and non-sovereign functions could not be
identified.

But the Constitutional Bench in Kasturi Lal v. State of UP, erroneously overlooked the
provisions of Public law and has held in an implied manner that (the acts of misappropriation
of gold by) the servants of The State during arrest, seizure and police power is a sovereign
function and hence is protected by the immunity. This matter has been criticized by a leading
constitutional authority of the country. Although, later a three judge bench has made
following observation about the principle of Sovereign immunity as, “much of its efficacy as
a binding precedent has been eroded.”23

Later in the matters of State of Gujarat v. Memon Md. And Smt. Basava Kom Dyamogonda
Patil v. State of Mysore,24 the Supreme Court has held that the state is responsible for the
illegal acts committed by its servant like any other employer would be. Thus, the principle
evolved to say that the state or owner was liable for acts of his servants, if proved to be
tortious and in breach of the statutory duties; which weren’t followed earlier.

Public Law Wrongs

In matters of Rudul Shah v. State of Bihar, Sebastin M. Hongray v. Union of India, Bhim
Singh v. State of J & K, SAHELI a Woman’s Resources Centre v. Commissioner of Police,
Delhi, lead to the inference that the defence of sovereign immunity is not available when the
State or its officers acting in the course of employment infringe a person’s fundamental right
of life and personal liberty as guaranteed by Article 21 of the Constitution.25

In the matter of Nilabati Behra v. State of Orissa, a letter sent by the Petitioner to the
Supreme Court regarding death of the son of petitioner in police custody was treated as a
petition under Article 32 of the Constitution and the apex court directed the State to pay
Rupees 1,50,000 as compensation to the petitioner. As a remedy available in public law based
on strict liability for contravention of Fundamental rights to which the principle of sovereign

23
Ratanlal Rancchoddas, Dhirajlal Keshavla Thalore, Guru prasanna Singh, Ratanlal & Dhirajlal's the Law of
Torts. 26th Ed. (Gurgaon : LexisNexis, 2010), 45-46

24
Ibid., 46-47.

25
Ibid., 47
immunity does not apply, even though it may be available as a defence in private law in an
action based on tort. Thus it clearly distinguished between the two remedies arising out of
actions based on public law and on the tort. It was further observed in the same matter that
“The purpose of the public law is not only to civilize public power but also to assure the
citizen that they live under a legal system which aims to protect their interests and preserve
their rights.26

This was followed up in D.K. Basu v. State of West Bengal, that, “the compensation against
the state under Article 32 or 226 was in the nature of “exemplary damages”

As already discussed above, in one of the latest judgements of the State of Andhra Pradesh
v. Challa Ramakrishna Reddy, the courts have clearly held that sovereign immunity as a
concept is no longer valid in matters of violation of the Fundamental rights under Article 21.

In the matter of Consumer Education and Research Centre v. Union of India, it was held
that “right to health, medical aid to protect the health and vigour of a worker while in service
or post retirement is a fundamental right under Article 21.” And it was observed that the
defence of sovereign immunity is inapplicable and alien to the concept of guarantee of
fundamental rights. There is no question of defence being available for constitutional remedy.

LIMITATIONS OF SOVEREIGN IMMUNITY

Trading and commercial activities of the State such as running of railways are outside the
scope of sovereign functions.27

Welfare activities like famine relief work or routine Governmental activity like maintenance
of vehicles for use of officials, or any service to the consumer covered by Consumer
Protection Act 1986 or running of a hospital do not fall within the area of immunity which is
limited to traditional sovereign functions.(the making of laws, the administration of justice,

26
Ratanlal Rancchoddas, Dhirajlal Keshavla Thalore, Guru prasanna Singh, Ratanlal & Dhirajlal's the Law of
Torts. 26th Ed. (Gurgaon : LexisNexis, 2010), 49

27
Ibid., 58
the maintenance of order, the repression of crime, carrying on of war, the making of treaties
of peace and other consequential functions).28

The State cannot succeed in pleading its immunity by merely showing that the Tort was
committed by its servant in the course of discharge of statutory functions. It has been held
that the statutory functions must be referable to the traditional concept of Government
activity in which the exercise of the sovereign power was involved and this legal position has
now been strongly affirmed in the matter of N. Nagendra Rao & Co. v. The State of Andhra
Pradesh.29

As a matter of fact, even in the cases where the State is protected from vicarious liability on
the doctrine of sovereign immunity, the public servant committing the tort is not protected.30
It is also no defence for any public servant to say that the wrong was committed in the course
of discharging some statutory function or carrying out the orders of superiors. Superior
Officers are not liable on the basis of vicarious responsibility for there is no relationship of
master and servant between them and their subordinate; but a superior officer is liable
directly if the wrong committed by the subordinate is expressly authorized by him.31

CONCLUSION
Firstly, the government needs to consider the facts and circumstances of the matter on a case-
to-case basis whether a particular action falls under the principle. It must provide the
authorities with a reasonable opportunity to explain why the suit must be/ must not 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

28
Ratanlal Rancchoddas, Dhirajlal Keshavla Thalore, Guru prasanna Singh, Ratanlal & Dhirajlal's the Law of
Torts. 26th Ed. (Gurgaon : LexisNexis, 2010), 58

29
Ibid., 61

30
Ibid.

31
Ibid., 61-62
respect to allowing or not allowing the principle derived from the maxim Rex Non Potest
Peccare, the courts and the governments can decide on a case to case basis.32
Thus, in general it can be concluded that India, as a sovereign socialist secular democratic
republic state has continuously evolved the principle of sovereign immunity with
distinguishing between the statutory functions of the State and fundamental rights of the
people.
There are many decisions in which the courts have had to apply the principle only because
there are no specific grounds laid down for rejection of immunity.
Therefore, in current age scenario, it will be of great help to clearly define the applicability of
this maxim in Indian context, with utmost clarity wherein sovereign and non-sovereign
functions are classified unambiguously under the civil and criminal procedure code.
Hence it is necessary to have crystal clarity in the demarcation to be there so that courts can
easily adjudicate upon issues concerning sovereign immunity derived from the maxim Rex
Non Potest Peccare.33

32
Nikhilesh Koudinya, “Limits of Sovereign Immunity”, https://www.latestlaws.com/articles/limits-of-
sovereign-immunity (accessed on April 18, 2022)

33
Ibid.
BIBLIOGRAPHY

1. Broom, Herbert. A Selection of Legal Maxims. 7th ed., T. & J. W. Johnson & Co.,
Law Booksellers, Publishers And Importers, 1874.

2. Choudhary, Sushmita. “Incorporation of the Maxims in Indian Laws and Their

Importance - IPleaders.” IPleaders, iPleaders, 23 Feb. 2021,
https://blog.ipleaders.in/incorporation-maxims-indian-laws-importance (accessed on
April 18, 2022)

3. Frederick, George. Legal Maxims with Observations and Cases : Part I, One Hundred
Maxims, with Observations and References to English Cases : Part II, Eight Hundred
Maxims with Translations : To Which Is Added in This Edition, Part III, Several
Hundred Maxims, with References to American Cases. American, Baker, Voorhis.

4. Glendon, Mary Ann, et al. “Common Law.” Encyclopædia Britannica, Encyclopædia

Britannica, https://www.britannica.com/topic/common-law. Accessed 18 Apr. 2022.

5. Jain, RatanLal. Legal Language. 4th ed., Central Law Agency, 2010.

6. Koudinya, Nikhilesh. “Limits of Sovereign Immunity.” Latest Laws,

https://www.latestlaws.com/articles/limits-of-sovereign-immunity. (accessed on April
18, 2022)

7. Ranchhoddas, Ratanlal, Dhirajlal Keshavlal Thakore, and Guru Prasanna Singh. 2010.
Ratanlal & Dhirajlal’s the Law of Torts. 26th Ed. Gurgaon: LexixNexis.