HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA

TITLE: IMMUNITIES OF THE STATE WITH SPECIAL

REFERENCE TO SOVEREIGN AND NON-SOVEREIGN
FUNCTIONS

SUBMITTED TO:
DR CHANDRIKA,
ASSISTANT PROFESSOR OF LAW

SUBMITTED BY:SHREYA KANAUJIYA

BA.LLB ( section-A)
1020220133

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 DECLARATION

I, the undersigned, solemnly declare that the project report titled IMMUNITIES
OF THE STATE WITH SPECIAL REFERENCE TO SOVEREIGN AND
NON-SOVEREIGN
FUNCTIONS is based on my own work carried out during the course of our study
under the supervision of DR CHANDRIKA, ASSISTANT PROFESSOR OF LAW. I
assert that the statements made and conclusions drawn are an outcome of my research
work. I further certify that

I. The work contained in the report is original and has been done by me
under the general supervision of my supervisor.
II. The work has not been submitted to any other Institution for any other
degree/diploma/certificate in this university or any other University in
India or abroad.
III. I have followed the guidelines provided by the university in writing the
report.
IV. Whenever I have used materials (data, theoretical analysis, and text) from
other sources, I have given due credit to them in the text of the report and
given their details in the references.

SHREYA KANAUJIYA
Ba.llb
1020220133

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 TABLE OF CONTENTS

Serial Number Content Page Number

1. Acknowledgement 4
2. Abbreviations 5
3. List of Cases 6
4. Introduction 7
5. Problem Profile 8
6. Research Methodology 9
7. Objectives 10
8. Analysis 11 – 17
9. Conclusion 18
10. Bibliography 19

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 ACKNOWLEDGEMENT

The Preparation of this research paper required the guidance of some respected
people, who deserve my gratitude. I would like to show my appreciation to Dr
Chandrika, Assistant Professor of Law at Himachal Pradesh National Law University,
for providing me with the guidelines throughout the research work. Also, I would like
to thank Prof. Dr Nishtha Jaswal, Vice-Chancellor of Himachal Pradesh National Law
University, for providing me with this golden opportunity.

I want to express my deepest gratitude to my parents and sibling for motivating and
supporting me. With them, it was possible to finish this research paper.

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 ABBREVIATIONS

Abbreviation Full Form

& And
¶ Paragraph
Art Article
CJ Chief Justice
Co Company
Const Constitution
CPC Code of Civil Procedure
CrPC Code of Criminal Procedure
HC High Court
Hon’ble Honourable
SC Supreme Court
Sec Section
UOI Union of India
v. Versus

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 LIST OF CASES

1. Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India,
(1861) 5 Bom. H.C.R. App. I,p.1.
2. McInerny v. Secretary of State, 13 Ind Cas 370.
3. Secretary of State v. Cockcraft, (1916) ILR 39 Mad 351.
4. Kessoram Poddar & Co. v. Secretary of State, AIR 1928 Cal 74.
5. Secretary of State v. Nagerao Limbaji, AIR 1943 Nag. 287.
6. State of Rajasthan v. Vidyawati, 1962 AIR 933.
7. Governor of Pitcairn and Associated Islands v. Sutton, (1994) 104 ILR
508 (New Zealand Court of Appeal).
8. P. Gangadharan Pillai v. State of Kerala, AIR 1996 Ker 71.
9. State of Andhra Pradesh v. Challa Ramakrishna Reddy, (2000) 5 SCC 712.
10. Nilabati Behra v. State of Orissa, 1993 AIR 1960.
11. Rudal Sah v. State of Bihar, (1983) 4 SCC 141.
12. Bhim Singh v. State of Rajasthan, 1992 SCC OnLine Raj 326.

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 INTRODUCTION

Sovereign immunity is a justification for wrongs committed by the State or its

representatives, seemingly based on grounds of public policy. Thus, even when all the
elements of an actionable claim are presented, liability can be avoided by giving this
justification.

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 could not be sued in its own courts
without its consent.1

This doctrine held sway in Indian courts from the mid-nineteenth century until
recently. When a genuine claim for damages is brought to the courts, and it is refuted
by an ancient doctrine seemingly having no relevance, there is bound to be resentment
and demands for review. The Indian courts, in order to not let genuine claims be
defeated, kept narrowing the scope of sovereign functions so that the victims would
receive damages.2 In its first report, the Law Commission of India also recommended
the abolition of this outdated doctrine. But for various reasons, the draft bill for the
abolition of this doctrine was never passed. Thus, it was left to the courts to decide on
the compatibility of this doctrine in accordance with the Constitution of India.3

1 Neeraj Arora, Doctrine of Sovereign Immunity, http://www.neerajaarora.com/doctrine-of-sovereign-

immunity/.
2 Amardeep Garje, Sovereign Immunity- No Defence in Private Law, http://ssrn.com/abstract=1347948.
3 Law Commission of India, First Report, 40-42, ¶ V.

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 PROBLEM PROFILE

The doctrine of sovereign immunity prevents the administrative body from being held
liable for their sovereign acts. While protecting the state for its actions, the usage of
doctrine should not be prejudiced against any citizen of the state.

Unfortunately, what constitutes a sovereign act is nowhere defined. Whether an act of

the state is sovereign or non-sovereign is more clearly defined by the judicial
precedents.

However, with the aid of such a doctrine, the officials often tend to protect themselves
under the umbrella of sovereign immunity and refrain from being held liable and
paying any compensation.

The present study primarily aims at providing a detailed analysis of various sovereign
and non- sovereign and how the doctrine of sovereign immunity has evolved over the
years. The courts need to take a step further to give up the doctrine.

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 RESEARCH METHODOLOGY

The research paper has relied on information from secondary resources. The
information has been gathered through various national and international journals. For
the purpose of case laws, websites like SCC Online and Westlaw have been used.

The data collected for the study is qualitative. To specify the qualitative analysis,
content analysis and discourse analysis are done.

It is in a descriptive form in order to ease the understanding of the readers. Moreover,

the data is valid and reliable because it has been collected directly from official
resources.

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 OBJECTIVES

This study focuses on the following objectives:

❖ To differentiate between sovereign and non-sovereign functions of the state

❖ To discuss the origin of the doctrine of sovereign immunity
❖ To study the immunities of administrative authorities
❖ To focus on privileges given to administrative authorities
❖ To describe the liabilities of administrative authorities

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 ANALYSIS

Sovereign immunity is the reasoning given for wrongs committed by the government
or its representatives. Apparently, these are based on public policy grounds.
Consequently, even if all the elements of an actionable claim are present, it is possible
to prevent liability by giving this rationale. The doctrine of sovereign immunity is
centred on the principle of Common Law derived from British Jurisprudence whereby
the King does no wrong and that he cannot be accused of personal negligence or
misconduct and, as such, cannot be held liable for his servant’s negligence or
misconduct. Another part of this theory is that a State cannot be prosecuted in its own
courts, which is considered an element of sovereignty.

This theory changed in Indian courts from the middle of the nineteenth century until
recently. When a legitimate claim for damages is brought before the courts and is
rejected by an outdated law, that obviously has no validity, indignation and requests for
clarification are bound to occur. The Indian courts kept shortening the scope of
sovereign functions in order not to let legitimate claims be defeated so that the victims
could obtain damages. In its first report, India’s Law Commission also suggested
abolishing this outdated doctrine. However, the draft bill for the abolition of this
doctrine was never passed for numerous reasons. Therefore, it was left to the judge to
determine the integration of this doctrine in accordance with the Indian constitution.

Sovereign and Non-Sovereign Functions of the State

Sovereign Functions

Sovereign functions of the state can be defined as those functions where the
state is not answerable before the court of law for their performance. These functions
are mainly concerned with the defence of the country, maintenance of the armed
forces of the country, and maintenance of peace in the territory. The state can only
perform these functions for external sovereignty, and that is why they are not
amenable to the jurisdiction of ordinary Civil Courts and are primarily inalienable
functions. But apart from this, there are various sovereign functions of the state that
are not mainly inalienable, including taxation, police functions comprising
maintenance of law and order, legislative functions, administration of law and
policies, and grant of pardon.
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 Non-Sovereign Functions

While non-sovereign functions are those functions that are amenable to the
jurisdiction of an ordinary civil court, and if the state does any tortious act or breach
of contract, it will be liable for the wrong done.

Difference Between Sovereign and Non-Sovereign Functions

Today, it has become challenging to differentiate between the Sovereign and non-
sovereign functions of the state. According to the case of Peninsular and Oriental
Steam Navigation Co.
v. Secretary of State for India4, the court, for the first time, dealt with the difference
between Sovereign and non-sovereign functions. It stated that the Secretary of the
State would not be liable for its sovereign functions and would be liable for only the
commercial functions. This judgment helped the court to understand and interpret the
functions of the state when the question of liability arose. But there was no established
protocol or norm to decide which function is sovereign and which is non-sovereign.

McInerny v. Secretary of State5: The State maintains public routes for public welfare
and does not involve any commercial object. For the laying of public paths and their
maintenance is a part of the sovereign functions.

Secretary of State v. Cockcraft6: This is also one of the essential sovereign functions
of the government. The government carries out the Maintenance of the military road
for the purpose of defence.

Kessoram Poddar & Co. v. Secretary7: Commandeering goods during the war was
said to be a sovereign function.

Secretary of State v. Nagerao Limbaji8: The government provides training for the
safety of the general public, and that’s why it is also a sovereign function.

4 Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India, (1861) 5 Bom. H.C.R. App.
I,p.1.
5 McInerny v. Secretary of State, 13 Ind Cas 370.
6 Secretary of State v. Cockcraft, (1916) ILR 39 Mad 351.
7 Kessoram Poddar & Co. v. Secretary of State, AIR 1928 Cal 74.
8 Secretary of State v. Nagerao Limbaji, AIR 1943 Nag. 287.

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 Origin of Doctrine of Sovereign Immunity

Although inspired by Roman antiquity through the concepts of Princeps Legibus

Solutus Est and Principi Placuit Legis Habet, the doctrine of Sovereign Immunity
owes much of its existence to early English jurisprudence. Although different
variations exist, it is widely believed that the doctrine rose to prominence during the
reign of King Edward I. The essence of the doctrine lay in the principle that the king,
or the sovereign, could not be sued in and by his own court. The practical and
systemic dynamics of the feudal system depended on a superior being who enjoyed
absolute power without the threat of any scrutiny on their exercise of the power.
Bodin, one of the first theorists to develop a theory on sovereignty, believed in this
idea of sovereign absolutism and the concentration of power in the monarch.9

With the rise of the holy roman empire and biblical notions of the sovereign, the king
began to be viewed as one who was anointed by God in order to carry on his work in
the human realm. Therein lay the doctrine of “Rex Non Potest Peccare”. As
Blackstone, in his commentary, asserted, “Besides the attribute of sovereignty, the law
also ascribes to the king in his political capacity absolute perfection. The king can do
no wrong: ... "The king, moreover, is not only incapable of doing wrong but even of
thinking wrong: he can never mean to do an improper thing: in him is no folly or
weakness.”10. Thus, by extension, the king was also incapable of ordering for a wrong
to be committed, implying that royal servants and employees also enjoyed the
immunity granted to the king. This Austinian11 sovereign with unlimited and
indivisible powers worked well to neutralise any threats to the crown, which may
have not only destabilised the monarchy and its servants but would also negatively
impact the constantly depleting treasury of the crown. During the rise of the notion of
a nation state, the personal immunity enjoyed by the king transformed into sovereign
immunity of the crown, encompassing a larger group of actions and actors.

9 Edward Andrew, Jean Bodin on Sovereignty, 2 Republics of Letters: A Journal for the Study of
Knowledge, Politics, and the Arts 2, (2011).
10 George W Pugh, Historical Approach to the Doctrine of Sovereign Immunity 3 Louisiana Law Review

(1953).
11 John Dewey, Austin's Theory of Sovereignty 9(1) Political Science Quarterly 31-52

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TORT LAW
In the pre-independence era, the doctrine found its inception in the case of O Navigation
Company v. Secretary of State,12 where C.J. Peacock, while interpreting section 65 of the
Government of India act, defined the concepts of ‘sovereign’ and ‘non-sovereign’ acts in order
to determine the extent to which the East India Company was vicariously liable for various
torts committed by its employees.

In the Post-independence era, after the establishment of the constitution, the first case to set a
precedent was State of Rajasthan v. Vidyawati,13 wherein the court refused to admit a plea of
immunity by the state and subsequently held that the state would be entirely liable for the torts
committed by employees who are not performing state functions. The apex court also
maintained that independent India has welfare and socialistic goals in whose domain a defence
which is based on feudal notions of justice cannot be enforced.

The acceptance of this doctrine was established in the United Nations Convention on
Jurisdictional Immunities of States and Their Property. In general, the doctrine has been
ratified by countries such as the United Kingdom, the United States, Australia and New
Zealand. In the case of the Governor of Pitcairn and Associated Islands v. Sutton14 in
New Zealand, it was held that such immunities do not protect a state’s commercial
activities.
The Constitution and Doctrine of Sovereign Immunity
Article 19(1)(g)
This article of the Constitution bestows upon the citizens of India the necessary right to practise
any profession or to carry on any occupation, trade or business. 15 In the case of P.
Gangadharan Pillai v. State of Kerala16, the state was denied the defence of sovereign
immunity. In this case, the police failed to protect the petitioner’s hotel from getting ransacked
by a mob, even though they had sufficient warning of the likelihood of attack by the rioters.
The State was held liable under Article 19 (1)(g) of the Constitution, as by failing to discharge
their duty to provide protection to the property of the petitioner, they infringed upon his right
to carry on business and trade, as embodied in the aforementioned Article.

12 Peninsular and Oriental steam Navigation Company v. Secretary of state (1861) 5 Bom. H.C.R.
App.I,p.1.
13 State of State of Rajasthan v. Vidyawati 1962 AIR 933.
14 Governor of Pitcairn and Associated Islands v. Sutton, (1994) 104 ILR 508 (New Zealand Court of

Appeal).
15 INDIA CONST, 1950 art. 19.
16 P. Gangadharan Pillai v. State of Kerala, AIR 1996 Ker 71.

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Article 21

The defence of sovereign immunity is rightly not available to the State in the
situations where it acts negligently and causes threat or deprivation to the life of a
person as provided under Article 21 of the Constitution. The High Court and Supreme
Court upheld this view in the case of the State of Andhra Pradesh v. Challa
Ramakrishna Reddy.17 In this case, the authorities were negligent in guarding the jail
where the petitioner and his father were stationed, consequently leading to the death of
the petitioner’s father. The case was dismissed in the trial court on the grounds that the
detention of the deceased in jail was within the power of exercise of the sovereign
functions of the State. The case was later overturned in the High Court, and the
decision of the High Court was upheld in the Supreme Court, barring the defence of
Sovereign Immunity to apply in this case.

Articles 226 and 32

Many cases dealing with unlawful detention and custodial death surfaced up in
the Supreme Court post the emergency period of 1975-1977. In the landmark
judgement of Nilabati Behra v. State of Orissa18, the court held that sovereign
immunity could not apply in this case to avoid providing compensation to the
petitioner for violation of human rights and fundamental freedom, as her son had died
in the police custody. In order to further protect the rights of individuals, in the case of
Rudal Sah v. State of Bihar19, the Supreme Court granted damages through the
process of writ petitions under the provisions of Articles 32 and 226 of the
Constitution. Moreover, in the case of Bhim Singh v. State of Rajasthan20, unlawful
detention was also incorporated within the principle.

17 State of Andhra Pradesh v. Challa Ramkrishna Reddy, (2000) 5 SCC 712.

18 Nilabati Behera v.State of Orissa, (1993) 2 SCC 746.
19 Rudal Sahv. State of Bihar, (1983) 4 SCC 141.
20 Bhim Singh v. State of Rajasthan, 1992 SCC OnLine Raj 326.

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 Types of Sovereign Immunity

Qualified immunity gives protection to a government authority or official who

is working in his scope of employment or area or work in the government
organisation, in good faith and without violating the statutory and constitutional rights
that a reasonable person is aware of. Qualified immunity is a doctrine created by the
judicial means that protects government officials from personal liability for violating
constitutional rights, such as the right to be free from the excessive police force as
long as the officials don’t violate it as it is established in law.

Absolute immunity

Its immunes government officials from criminal prosecution and civil suits to
avoid damages. This immunity completely bars a lawsuit with no exceptions. This
immunity generally applies to the prosecutors, judges, legislators, and executive
officials of all government authorities.

Immunity to jurisdiction

The immunity of the state to jurisdiction has come into results from its reliance
on the fact that it would be inappropriate to call one state’s court under the jurisdiction
of the other state. So, the entities of the states are immune from the jurisdiction of the
other state’s court. Therefore, this immunity can generally be relinquished by the state
entity. It simply means that when a state authority or a government official commits a
wrong in another state, that state where the wrong has been committed cannot call the
said state in its court, for that matter. So, it is said that states are free from the
jurisdiction of the courts of another state.

For instance: A (from India) has committed a crime in America, but as India is
protected under sovereign immunity from being tried in another state’s court, A is not
under an obligation to go to the court of America. However, this immunity can be
relinquished by the state entity.

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Immunity from execution

The states are also immune from execution, as it would be improper for one
state’s court to seize the property of another state. The immunity from execution is
also generally waived. It simply means that when a case arises where another state
tries-a person or entity of a state
The judgment is passed against that entity; in such matters, immunity is given to the
state against the enforcement of such ruling because it would be against the principle
of justice if one court rules for seizing away another state’s property. Hence,
immunity from execution is given in the matter of property to be seized by the
government and court of another state.

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CONCLUSION

Sovereign immunity as a defence was never available where the State was involved in
a commercial or private undertaking, nor is it available where its officers are guilty of
interfering with the life and liberty of a citizen not warranted by law. In both such
infringements, the State is vicariously liable and bound, constitutionally, legally and
morally, to compensate and indemnify the wronged person.

It is essential to understand that whether an act of state is immune from prosecution or

not, it depends on the facts of the case, and the judiciary plays a vital role in the same.
The court is the authority which would analyse the case and determine the liability of
the right party.

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BIBLIOGRAPHY

➢ Neeraj Arora, Doctrine of Sovereign Immunity,

http://www.neerajaarora.com/doctrine- of-sovereign-immunity/.
➢ Amardeep Garje, Sovereign Immunity - No
Defence in Private Law, http://ssrn.com/abstract=1347948.
➢ Law Commission of India, First Report, 40-42, ¶ V.
➢ Edward Andrew, Jean Bodin on Sovereignty, 2 Republics of Letters: A Journal
for the Study of Knowledge, Politics, and the Arts 2, (2011).
➢ George W Pugh, Historical Approach to the Doctrine of Sovereign
Immunity 3 Louisiana Law Review (1953).
➢ John Dewey, Austin's Theory of Sovereignty 9(1) Political Science
Quarterly 31-52 (1894).

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➢

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