Sovereign Immunity

What is Sovereign Immunity?

**Sovereign immunity** is a legal doctrine under which the government (the "sovereign") cannot be sued in its own courts without its consent. The principle is based on the old English common law maxim **"the King can do no wrong"** — the idea that the Crown, as the fountain of justice, could not itself be guilty of a legal wrong.

In simple terms, sovereign immunity means that if a government employee causes harm to a citizen while performing an act that is considered a "sovereign function" (such as maintaining law and order or defending the nation), the government may claim that it is immune from liability and cannot be compelled to pay compensation.

Legal Framework in India

Article 300 of the Constitution

**Article 300(1)** of the Indian Constitution provides that the Government of India may sue or be sued by the name of the Union of India, and the Government of a State may sue or be sued by the name of the State. It further states that these proceedings may be taken in respect of matters that the Dominion of India or the corresponding provinces could have sued or been sued before the Constitution came into force.

This means that the extent of the government's liability is linked to the position of the **East India Company** and later the **Crown** under pre-constitutional law, specifically the **Government of India Act, 1858** and the **Government of India Act, 1915**.

The Sovereign-Non-Sovereign Distinction

Indian law distinguishes between two categories of government functions:

- **Sovereign functions** — Functions that only a government can perform, such as defence, maintenance of armed forces, administration of justice, law and order, and legislative activities. For tortious acts committed during the exercise of sovereign functions, the government traditionally claimed immunity.

- **Non-sovereign functions** — Functions that are not exclusively governmental and can be performed by private entities as well, such as running railways, operating bus services, managing hospitals, and conducting commercial activities. For tortious acts during non-sovereign functions, the government can be held liable like any private person.

Landmark Judgments

Peninsular & Oriental Steam Navigation Co. v. Secretary of State (1861)

This is the foundational case on state liability in India. The court held that the East India Company (and by extension, the government) was liable for the negligent act of its servant who was employed in a non-sovereign capacity. The case established the distinction between sovereign and non-sovereign functions.

State of Rajasthan v. Vidyawati (1962) AIR SC 933

A government jeep driven negligently by a government employee hit and killed a person. The Supreme Court held that the state was vicariously liable for the negligent act of its employee. The court observed that in a welfare state, the distinction between sovereign and non-sovereign functions is becoming increasingly thin, and the state should not claim immunity when its employees cause harm through negligence.

Kasturilal v. State of U.P. (1965) AIR SC 1039

Gold seized by the police from a suspect was misappropriated by a police constable. The Supreme Court held that the state was **not liable** because the police were performing a sovereign function (law enforcement). This decision has been widely criticised and is considered by many scholars as ripe for reconsideration.

N. Nagendra Rao v. State of A.P. (1994) 6 SCC 205

The Supreme Court significantly narrowed the scope of sovereign immunity. The court held that the doctrine should be confined to acts of the state that are "strictly sovereign" in nature — primarily acts related to defence, diplomacy, and the raising of armed forces. For all other functions, even those involving the police and revenue authorities, the state should be held liable for the tortious acts of its employees.

Common Cause v. Union of India (2018)

The Supreme Court reiterated that in a modern welfare state, the doctrine of sovereign immunity has limited application and that the state must be held accountable for the actions of its officials.

Practical Examples

**Example 1:** A government-operated bus driven negligently by a state transport employee injures pedestrians. The government cannot claim sovereign immunity because operating public transport is a non-sovereign, commercial function. The injured persons can claim compensation from the state.

**Example 2:** During a counter-insurgency operation, armed forces personnel destroy civilian property. The government may argue sovereign immunity because military operations for national defence are considered sovereign functions. However, if the destruction is disproportionate or amounts to gross negligence, courts may still award compensation under Article 21.

**Example 3:** A patient dies due to negligence at a government hospital. The state cannot claim sovereign immunity for running hospitals, as healthcare delivery is a non-sovereign welfare function. The patient's family can sue the state for damages.

When Does This Term Matter?

- **Motor vehicle accidents involving government vehicles** — Claims against the state for accidents caused by government-owned vehicles driven by government employees.

- **Medical negligence in government hospitals** — Patients seeking compensation for substandard treatment at government healthcare facilities.

- **Police excesses** — Victims of police brutality, illegal detention, or custodial violence seeking compensation from the state.

- **Government construction and infrastructure** — Injuries or damages caused by poorly maintained government roads, bridges, or buildings.

- **Armed forces operations** — Claims arising from military or paramilitary operations that affect civilians.

- **Public welfare schemes** — Negligence in the implementation of government welfare programmes that causes harm to beneficiaries.

The Narrowing of Sovereign Immunity

Indian courts have progressively narrowed the doctrine of sovereign immunity over the decades. The trend is clearly towards greater state accountability:

- The **constitutional mandate** of a welfare state (Article 38, Directive Principles) sits uneasily with the idea that the state can escape liability for the wrongs of its servants.

- **Article 21** has been expansively interpreted to include the right to compensation for violation of fundamental rights, even against the state.

- Courts have awarded **compensation in writ proceedings** under Articles 32 and 226 for violations of fundamental rights by state actors, bypassing the sovereign immunity defence entirely. This is known as **constitutional tort** jurisdiction.

- The **National Human Rights Commission** and **State Human Rights Commissions** regularly recommend compensation for state excesses, further eroding the practical application of sovereign immunity.

Frequently Asked Questions

Can the government be sued for police misconduct?

Yes, in most circumstances. While the Kasturilal (1965) decision held that police functions are sovereign, subsequent decisions — particularly N. Nagendra Rao (1994) — have significantly limited this reasoning. Courts routinely award compensation for police misconduct such as custodial violence, fake encounters, illegal detention, and destruction of property. Under Articles 32 and 226, the Supreme Court and High Courts award compensation for violation of fundamental rights by the police without being constrained by the sovereign immunity defence.

Is sovereign immunity recognised in other countries?

Yes, but most modern democracies have either abolished or severely restricted it. In the United Kingdom, the Crown Proceedings Act, 1947 made the Crown liable in tort like a private person. In the United States, the Federal Tort Claims Act, 1946 waived sovereign immunity for most tortious acts of federal employees. India has not enacted a comprehensive statute on state liability, and the law remains primarily judge-made.

Can the government waive sovereign immunity?

In a sense, the government has partially waived sovereign immunity through various statutes that create liability. For example, the Motor Vehicles Act, 1988 makes the owner of a vehicle (including the government) liable for accidents. The Consumer Protection Act, 2019 applies to government services. Additionally, courts have held that Article 300 of the Constitution itself provides for the suability of the government, and the legislature can further define or expand the scope of state liability through legislation.

Is there any movement towards abolishing sovereign immunity in India?

There have been repeated calls from the judiciary, the Law Commission of India, and legal scholars to abolish or severely restrict sovereign immunity. The Law Commission in its First Report (1956) recommended that the government should be made liable for tortious acts committed in the exercise of both sovereign and non-sovereign functions. While no comprehensive legislation has been enacted, judicial decisions have progressively narrowed the doctrine to the point where it applies, if at all, only to the most narrowly defined sovereign acts such as defence and foreign affairs.