Sovereign immunity is a conception that was developed in common law justice. In earlier times we didn't cleave to the conception of a government with tagged individualities. Literature of history has easily shown us that lords were responsible for the 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 capability to form rules were each given to the lords to decide. Due to assuming similar power, they also were needed to be defended against any discipline (corrective or inhibiting) 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 can not commit a legal wrong and is vulnerable to civil suit or felonious execution. The legal sententia 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 can not be held liable for acts of misconduct or particular negligence and neither can he be held liable for acts of his retainers. When we nearly dissect this conception there are two kinds of sovereign immunity the crown/ governments enjoy.
Immunity to governance-this simply means that if one government functionary 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. Thus, countries are free from the governance of courts of another state. For illustration, A, an Indian, committed a crime in Pakistan. India is defended under this immunity from being tried by the courts of Pakistan because it enjoys the doctrine of sovereign immunity. Though this immunity can be waived off by the state reality.
Immunity from prosecution- indeed if a case arises where a person or reality of one state is tried by another state and a judgement is passed against the reality, 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 down property of another state.
To further dwell into this subject, we must observe ways taken by India to apply the principle in law and observe whether the principle is applied unconditionally in our country or are their reasonable restrictions assessed. In India, through different cases and government opinions, we can conclude that sovereign immunity as a conception has confined use. There are certain pieces of legislation that 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 introduced against foreign countries. But the suit itself points towards an exception where a suit may be introduced with the previous authorization of the government of the particular state which is displeased by the act of another state.
The Politic Relations (Vienna Convention) Act, 1972 gives certain political immunity to countries and people who are on operations or are ministers in other countries. Certain sections of this convention are followed by India where the sovereign immunity/ power is extended to family, retainers and staff members of these ministers/political officers.
Still, one thing to observe is that in every situation the concurrence of the government isn't demanded. When a nation-state sues another state under some special law the concurrence of the government isn't needed. Similar special laws may include Consumer Protection Act or the Carriage by Air Act etc. India has also been a party to subscribe to the UN Convention on Jurisdictional Immunity but this convention has not been announced yet around the world. Also, India as a country has only inked the convention and hasn’t ratified it, hence it isn't fully bound by the vittles’ which are mentioned under the act.
In fact, under the corner judgement of Mirza Ali Akbar Kasaniv. the United Arab Republic and others, it was held that when a suit is introduced with the concurrence of the government also the other state cannot claim sovereign immunity in such a case. Therefore, we must look into deals that don't fall under the dimension of similar immunity.
Cases Revolving Around Sovereign Immunity
In the case of Peninsular and Oriental brume navigation company v Secretary of State, the court tried to define the principle more categorically by separating acts committed by East India company into sovereign and non-sovereign acts. Therefore, the court examined the vicarious liability of a foreign power in the environment of their deals in India. The follow-up case was Hari Bhan Ji v Secretary of State, where the courts held that the only acts committed by East India companies that are defended are acts of state. But in both these cases, a distinction between sovereign and non-sovereign functions couldn't be linked.
In the case of, the State of Rajasthan v. Vidyawati, the court laid down that the state was accountable for the acts commissioned by the driver by course of his employment like any other proprietor would be. Therefore, the principle evolved to say that the state or proprietor was liable for acts of his retainers that weren’t followed before. But the court's capability regarding this principle was questioned in Kasturi Lal v. the State of UP, where the court held that arrest, seizure and abuse of police power is a sovereign function and hence is secured by the immunity. But coming opinions of courts have truly made us understand that this principle of immunity is a developing conception and the Indian courts haven't been particularly successful in drawing an exact difference between sovereign and non-sovereign functions. But in one of the final judgements of AP v. Challa Ramakrishna Reddy, the courts have laid down that there's no point in differencing between functions in the current times and that sovereign immunity as a conception is no longer valid.
Therefore, we can conclude by saying that India as a country has continuously evolved the principle of sovereign immunity with powers being inversely distributed between the state and the bar. One enhancement that may help evolve the principle more is that sovereign and non-sovereign functions must be easily linked and included under the civil procedure law. There are numerous opinions in which the courts have had to apply the principle only because there are no specific grounds laid down for the connection of immunity. Hence, it's necessary for this discrimination to be there so that courts can fluently arbitrate upon issues concerning immunity.
Written by Parul Sharma