hammer, books, law

LAWS LIFTING SOVEREIGN IMMUNITY

INTRODUCTION:-

Although all evidence is present against the State or one of its members in an especially disadvantageous situation, the Sovereign Immunity will save them all. Few nations give their government sovereign immunity, although others treat it differently. Per nation has a different sovereign immunity scheme.

Let’s first understand the word sovereign immunity to understand better and where it came from. Two terms are used to characterize the phrase “sovereign immunity.” Sovereign means king or dictator, and immunity means opposition. This word also means that the monarch is not subject to indictment.

The concept of sovereign immunity comes in from this philosophy. The state and the other departments are safe from prosecutions due to this conviction. Sovereign immunity thus largely avoids legal conflicts between the government and its diverse bodies. There is a sovereign policy for any state or nation. Some governments provide all the governing bodies with sovereign immunity, while others provide the municipality with no sovereign immunity.

Apparently, based on foreign policy, sovereign immunity is the justification for the State or its members’ mistakes. Thus, there is a reason for minimizing liabilities even though all the components of an actionable allegation are provided.

MEANING:-

The doctrine of sovereign immunity is based on the idea of common law deriving from British Jurisprudence that the King makes no error and cannot be liable or accountable for neglect or wrongdoing on the part of his servants. Another point was that the state could not be prosecuted in its courts without its consent, which is an sovereignty attribute.

From the middle of the 19th century until recently, the doctrine was founded by Indian courts. If a legitimate damages lawsuit is presented to the courts, and an ancient doctrine tends to be debunked to be obsolete, resentments and evaluations must be demanded. In order not to refute legitimate allegations, Indian courts have tended to limit the reach of sovereign functions to the plaintiffs.

BACKGROUND AND EVOLUTION:-

Via common law, the protection of sovereign immunity was imported into India. As prevailed in the United Kingdom, the theory of common law was that the King could do no wrong, and thus no recourse can be maintained against the King or his members for any wrong done. The legitimacy of this theory was established in India by P & O Steam Navigation Company v. Secretary of State, in which it was held that if the specified act was carried out in the exercise of sovereign powers, the East India Company could not be held accountable.

In the case of Secretary of State v. Hari Bhanji, this doctrine gained attention. The fact was that the rate of duty on salt was raised during the passage of salt from Bombay to the ports of Madras, and the merchant was called upon to pay the difference at the port of destination. Under protest, he paid and instituted the suit for its recovery. The Court further narrowed the State’s immunity and held that the distinction between the State’s sovereign and non-Sovereign functions was ill-founded, stating that the immunity applied only to so-called ‘acts of state.’ The Court ruled that only the latter acts would be liable for immunity, creating a distinction between acts that would come under the purview of municipal law and those beyond it.

And as to what acts would be against municipal law, the Court noted that this definition would fall under the acts carried out by the Government in the exercise of the sovereign forces of peace and war and the termination of treaties. In addition, the Court included a separate class of cases in which the Municipality is behaving in a manner that is not explained by any canon of municipal law because of the supreme imperative of ensuring public protection. In light of numerous High Court decisions that chose to perpetuate the P & O Steamship case doctrine, the new doctrine could not survive for long.

It is essential to look at Article 300 of India’s Constitution, which lays out the responsibility of the Union or State in government activities, before addressing the extent of sovereign immunity as established over the course of years.

Article 300:-

In India, the distinction was initially preserved among sovereign and non-sovereign roles as regards the concept of government immunity to its servants’ tortuous actions. No law in India controls the state’s duty. The duties of the Union or the State for an act of the Government are laid out in Article 300 of India’s Constitution, 1950.

Section 176 of the Government of India Act of 1935 gave rise to Article 300 of the Constitution. In accordance with Section 176 of the Indian Government Act of 1935, the Indian Secretary of State’s liability under a 1915 government act, coextending with the East India Company before the Indian Government Act of 1858, was exercised. Article 65 of the Government of India Act, 1858 specifies that all people take and should take the remedies and the procedures they must have taken against the East India Company against the Secretary of State for India.

The Government of India and the Government of each State can then be seen in accordance with the continuation of the East India Company across the enactment chain starting with the Act of 1858. In other words, the government’s duty was the same as the East India Company in 1858.
The first part of the article concerns the manner in which the prosecutions may be conducted by or against the government in a summary of Article 300. It stipulates that the State must sue and sue for the Union of India’s name and that a State must sue for and sue for the State’s name.

In part 2, the Union of India or the State may, inter alia, sue, or sue if the Constitution in respect of its affairs has not been published on the same line as it has been in the case of Dominion of India or a corresponding Indian State as the case may be.

The Third part provides that the Parliament or the legislatures of State are competent to make appropriate provisions in regard to the topic covered by Article 300(1).

SECTION-86 of CPC:-

In India, the issue of foreign state immunity is regulated by Section 86 of the Civil Procedure Code, and the general rule under Section 86 states that no foreign state can be sued in any court without the prior permission of the central government. The government has the power to approve the consent, but the permission would depend on the particular details of the case and will only be enforced under the following situations if the foreign State is to grant the consent.

(a) has brought an action before the Court against the person wishing to sue it, or has brought an action before the Court against the person wishing to sue it.
(b) trade alone or elsewhere within the local boundaries of the jurisdiction of the Court, or within the local limits of the jurisdiction of the Court;
(c) is in possession of an immovable property located within such limits and is to be sued for the money charged or charged with regard to that property;
(d) has waived the right bestowed on it by this clause explicitly, indirectly, or impliedly.

In the absence of a separate statute, since it is a statutory clause which has little to do with the constitutional rights of the States to prosecute or be sued (however, there is a reasonable claim that it is not merely procedural but equally substantive), the only way to exercise those rights is to face the dilemma that courts frequently face. This provision does not reflect compliance with the existing developments in international law, which have already emerged from that role since the provision was first established. However, the courts have sought to view this provision as being of restricted applicability and argue that under some cases and situations, the issue can be resolved.

THE SOVEREIGN IMMUNITY TYPES:-

Two mechanisms of immunity usually favour the State-

  • Jurisdiction immunity- The immunity of a state of jurisdiction derives from the presumption that calling another state under its jurisdiction would be improper for one state’s courts. State bodies shall also be exempt from the authority of the courts of another State. This immunity, though, can generally be waived by a state agency. In specific legal frameworks, a reference to arbitration is necessary to show the waiver of the State’s rights to authority. However, some developing countries may be reluctant to submit to international arbitration, believing that arbitration is dominated by Western principles and would not give a fair hearing to a developing country. Submitting to arbitration under the UNCITRAL rules, which are often considered more culturally neutral than those of the ICC or other Western tribunals, may feel more secure in those same developing countries.
  • Immunity against execution- Since it will be unconstitutional for one State’s courts to take the property of another State, the State would still have immunity from execution. Immunity from execution can also be waived in general.

Waiving execution immunity can be challenging for a government to address. As a general proposal in most legal regimes, for the fulfillment of the implementation of an arbitral award, such properties belonging to the State may not be available; for example, international embassies of the government or consular possessions. Therefore, a method of capturing such state properties will have to be made available to the private party, probably through the detailed description of individual belongings available for seizure.

POSITION IN OTHER COUNTRIES:-

In the United Kingdom, because of the principle “the King can do no wrong,” the Crown claimed freedom from tortious guilt. Another part of this was that the monarchy could not be prosecuted in the courts without his permission. In fact, however, the government had a salutary practice of settling the case with the wounded party, which was not as a right but as a matter of grace.

With the implementation of the Crown Proceedings Act, 1947, the situation shifted dramatically, rendering the Crown responsible for the tort to the same degree as a private citizen of full age and ability, but subject to the exceptions of domain protection, armed forces maintenance, and postal services. The Crown thereby becomes vicariously responsible to a very significant degree for the torts perpetrated by its servants.

The Federal Tort Claims Act, 1946 governs the Federal Government’s tortious responsibility in the United States. The Federal Government is responsible in similar conditions to the same degree as a private citizen, but malicious crimes such as assault, battery, and false imprisonment are exempt. As long as the roles are done with proper caution, the State is not responsible for any crime perpetrated by its servants.

Uniform sovereign immunity jurisprudence also tends to be a long time away in the international arena since this topic is regulated by the governments’ national laws and methods. In the past, there have been efforts to somehow streamline the approach through the implementation of laws and, more generally, the creation of a multilateral treaty. As the UK and the US have, India also does not have independent overseas state sovereign immunity laws. However, the United Nations Convention on the Jurisdictional Immunities of States and their Lands has been ratified.

Although the Convention is not yet in place, it reflects India’s propensity to officially follow a trained approach to immunity. Over the years, the case laws established indicate that the courts have followed the same policy with no absolute immunity from jurisdiction.

LAWS LIFTING SOVEREIGN IMMUNITY:-

Although sovereign immunity can be waived in various situations, such as when a prior written application has been submitted to the court or when an application has been submitted to the authority while presenting a case as a defendant or participating in a case.

In India, before Independence, sovereign immunity came into existence when East India Company requested responsibility for their wrong-doing servants. It was the first time the supreme court of Calcutta had received a proposal like this. While specific arrangements have been made, a simple vision can never be granted as to which actions will be taken into account under sovereign immunity and which will not be.

While several lawsuits against the state came into being after independence and when the court found the state guilty, they denied the state’s appeal for sovereign immunity and took proper action against it. Maybe, in many ways, by recognizing some of its position as non-sovereign, the court finally agreed to limit the protection granted to the state. A bill abolishing sovereign immunity has never been passed. Article 361 of India’s Constitution states that once they occupy the position, the court cannot take any judicial action against the President and Governors of India. They could be fined with their acts, though.

Let’s look at some instances where there has been no use of sovereign immunity, such as in the case of Challa Ramakrishna Reddy v/s. Andhra Pradesh’s state reveals that it no longer makes any difference, whether sovereign or non-sovereign. It means that if anyone has done wrong, he/she is liable to punishment. In the case of Rudal Shah v/s the State of Bihar, the court granted losses for the first time. There were more such trials in the courts, and the court realized that the perpetrator would be convicted if the accusations are correct. Sovereign immunity is, however, no longer in use.

The Law Commission, too, proposed the removal of this obsolete doctrine in its very first paper. But the proposed bill for eliminating this doctrine for different reasons was never accepted, and it was thus left to the courts to determine, in compliance with the Constitution of India, on the compatibility of this doctrine.

CONCLUSION:-

Everywhere, it is increasingly understood that the principle of sovereign immunity is a constitutional country is an anachronistic and archaic rationale that guarantees life and liberty as well as the rule of law. There appears to be no reason why the State should not pay the victims of its acts under sovereign powers, since all people profit from such action, and it is grossly unjust to impose the blame on just a handful.

A classic example of cheating Peter to pay Paul appears to be this. A lesson should be learned from the Indian Army experience, which often has to requisition border-located farmland for mining and bunkering in hostile circumstances.

Instead of taking refuge in the defense of sovereign immunity, the Army duly compensates the landowners in such situations. Finally, there is an urgent need to reconsider Kasturi Lal’s case by a larger bench because it needs to be decided whether the defence of sovereign immunity will apply in case of violation of legal rights. The ghost of Kasturi Lal must eventually be put to rest in order to create a fully equalitarian state that abides by the rule of law.

CASE NAME: – Vibhor Anand & Ors. Vs Vice-
Chancellor, Guru Gobind Singh
Indraprastha University.

Author :

P.BHUVAN DEEPAK, [ B.B.A,L.L.B.], Gitam School Of Law.
E-mail id – bhuvandeepak99@gmail.com