LLB Notes: First Year: Law Of Torts:Unit 3- Specific Torts II

DOCTRINE OF SOVEREIGN IMMUNITY

Introduction

Generally, a person is liable for his/her own wrongful acts, however, in some cases, vicarious liability may arise. This is when one person is held liable for another person’s act. Winfield explains vicarious liability as the liability which A may incur to C for damage caused to C by the negligence or other tort of B. It is not necessary that A shall have participated in any way in the commission of the tort nor that a duty owed in law by A to C shall have been broken. What is required is that A should stand in a particular relationship to B and that B’s tort should be referable in a certain manner to that relationship. Thus, vicarious liability can be held mainly in the following three cases:

1. Principal’s liability for agents’ acts,
2. Liability of partners for acts committed by each other, and
3. Master’s liability for servants’ acts.

When agents or partners or servants commit any wrong, they are definitely held liable for the same. However, besides them, their principal, fellow partners, and master, respectively, are also vicariously liable for the tort committed. This is because of the professional relationship that they share. They are, thus, considered as joint tortfeasors and their liability is joint and several. The doctrine is based on two maxims: Respondeat Superior (let the principal be liable) and Qui facit per aliumfacit per se (he who does an act through another does it himself).

However, the rule is not applicable in every act and there are some conditions. One of the most important conditions is that the act must be committed in the course of employment. If an agent commits a mistake outside the employment, then the principal cannot be held liable for the same. Similarly, the State is immunized from liabilities. This is because they are serving for the welfare of the country, and it is a general belief that the head of the State (King) cannot commit a wrong. This concept is termed as “sovereign immunity”.

Sovereign Immunity in England

We are introduced to the concept of sovereign immunity through the English Law. The principle is based upon the maxim, rex non potestpeccare, which means that the King can do no wrong/harm. Thus, if ‘A’ has suffered harm from any acts of the State, he has no legal remedy available for it in law. In Tobin v. R. (1863), it was observed that if the Crown were to be held liable for torts, then the maxim (king can do no harm) would have no relevance.

However, as time flew, this law had almost become incompatible with the country’s demands of justice. Several scholars criticised the rule, and Dicey claimed it to be an “absurd example”. It was opined that the real meaning of the phrase, “the King can do no wrong”, is that “the King has no power to do any wrong or harm”.

The country, then, abolished the absolute nature of this doctrine and laid down rules that have made the Crown liable for its act as well as, to some extent, the acts of its agents and/or servants. The Crown Proceedings Act, 1947 is the main statute that restricts the state’s immunity.

Applicability in India

In India, there is no specific legal provision highlighting the Government’s liability for its wrongful acts, unlike the UK. However, under Article 300 of our Indian Constitution, the Union Government, or the State Governments, can sue or be sued in relation to their acts. However, before understanding the present law, we also need to know about the case prior to it. We once had an absolute state immunity law which was unveiled by the England lawmakers, and later on, as mentioned above, the Constitution altered the rule. So, let’s understand the applicability of this doctrine in India.

Pre-Constitution Period

The English Law of suing the Government for tortious acts was partially referred to while framing the Indian Law as well. We can understand the concept of sovereign immunity prior to the commencement of the Constitution in a better way with the help of an important case law:

1. Oriental Steam Navigation Co. vs. Secretary of State (1861): In this case, the servants of the plaintiff’s company were riding on a horse-driven carriage, belonging to the company. When the carriage passed by the government dockyard, some government employees negligently dropped an iron piece on the road. This startled the horses and one of them even got injured. The plaintiff company filed a suit against the defendants and claimed Rs. 350 as damages. The defendants alleged that the suit was not maintainable and claimed Crown Immunity.

The Calcutta High Court, however, allowed the suit and directed the defendants to pay for the damages caused. It observed that the Government would be liable if the negligence of the government servant is such as would render an ordinary employer liable. The Court distinguished between the sovereign and non-sovereign functions of the Government and held that any wrongful act committed by the government servants while discharging non-sovereign functions would make the Secretary of the State liable. However, in cases of sovereign functions, the State has the immunity against the actions against it.

Although the Calcutta High Court restricted the application of sovereign immunity to only cases involving sovereign functions, the subsequent cases did not witness any steadiness in the rule. The Courts often failed to distinguish between the sovereign and non-sovereign functions. Sometimes, the Courts even relied on the concept of “acts of the State” while deciding on the liability. The sovereign/non-sovereign functions rule was more sympathetic to the Government than the principle of act of State.

Sovereign Immunity in Independent India

The rule of making the Government liable for tortious acts was introduced to us through Articles 299 and 300 of the Indian Constitution. The 1956 Law Commission Report also suggested various reformative measures in this regard. However, it was only in 1962 when the Court got the opportunity to examine the principle of sovereign immunity. Let us understand the development of this doctrine post-independence with the help of some landmark cases.

1) State of Rajasthan v. Vidhyawati (1962): Facts of the case- A jeep was owned and maintained by the State of Rajasthan for the official use of the District Collector. One day, while returning it from the workshop after repairs, the driver, due to his rash and negligent driving, knocked down a pedestrian. The pedestrian died as a consequence and his wife sued for damages. The Supreme Court held the State vicariously liable.

The importance of this case is that the Court did not go into the question of whether the said act comes under the sovereign or non-sovereign functions of the State. It rather clearly stated that the English doctrine of State immunity is not applicable to India. This was the first time where the scope of Article 300 of the Constitution was acknowledged to hold the Government liable for tortious acts.

2) Kasturi Lal v. State of Uttar Pradesh (1965): Facts of the case- A certain quantity of gold and silver was seized from the accused on suspicion, and was kept in the custody of the Head Constable. The Head Constable misappropriated the same and fled to Pakistan. Thereafter, the accused was prosecuted and later acquitted by the Court. The accused then sued the State for compensation for the misappropriation of his property. The Court held that the State was not liable because the acts of the police come within the sovereign functions of the state, and therefore, it has the immunity against action.

3) State of Gujarat v. Memon Mahomed Haji Hasan (1967): In this case, certain goods of the respondent were seized by the Customs Authorities on the ground that they were smuggled goods. An appeal was filed by the respondent. While the matter was pending, the Magistrate ordered the goods to be disposed of. The Supreme Court allowed the appeal and set aside the order of the Magistrate. The Court ordered the return of the goods to the plaintiff holding that the Government, in this regard, acts as a bailee of the goods and therefore, it has the duty to return the same.

4) BasavvaPatil v. State of Mysore (1977): The appellant’s ornaments were stolen, which was later recovered by the police. The ornaments were stolen from the police custody before the disposal of the case. The Supreme Court directed the State to pay cash equivalent to the ornaments to the appellant.

5) Nagendra Rao v. State of Andhra Pradesh (1994): In this case too, some goods of the Appellant were confiscated by an order. The confiscation order was later quashed. The Appellant filed a suit seeking the return of goods. The trial court directed the return of goods, but the High Court had set aside this order.

When the matter reached the Top Court, the High Court’s order was quashed and it was held that if a confiscation order is held illegal, then the person is entitled to receive back his goods. This case is also important as the Court held that the distinction between the sovereign and non-sovereign functions does not exist in India. It termed such division of functions as contrary to modern jurisprudential thinking.

Sovereign Immunity v. Fundamental Rights

The observations in the above cases reveal the fact that India lacks an effective law pertaining to the applicability of sovereign immunity in the country. Despite having passed more than seven decades since Independence, the lawmakers are ignorant about this principle. However, it must be noted that despite being irregular, the rule of sovereign immunity also has an impact on fundamental rights guaranteed under Part III of the Constitution.

An important case in this context is Nilabati Behra v. State of Orissa (1993) wherein a person was taken into the police custody for theft for investigation. However, he was found dead on the railway tracks, the next morning, with handcuffs in his hands. The petitioner, who was the father of the deceased, filed a suit, and the Court awarded compensation to the petitioner. An important development that was witnessed through this case was the Court's observation that the doctrine of sovereign immunity would not apply to public law remedies under Articles 32 and 226 of the Indian Constitution.

In State of Andhra Pradesh v. Challa Ramakrishna Reddy, the petitioner's father lost his life in jail while he suffered serious injury due to the negligence of the jail authorities. The Trial Court observed that the State cannot be sued since the arrest and detention of both was a sovereign function. The High Court, however, set aside the trial court's order and noted that the negligence of the jail authorities had led to the violation of the victims' rights under Article 21. It was held that the concept of sovereign immunity cannot override the claim for infringement of fundamental rights. The High Court's order was affirmed and upheld by the Supreme Court.

These two cases prove that the Indian judiciary has placed the rights of the citizens over the State's immunity. Thus, the Government's power is confined to the provisions of the Indian Constitution.

Conclusion

It is clear from the above analysis that there is still no authoritative rule to either support or reject the doctrine of sovereign immunity in India. Even Courts had varied opinions in this regard. If in one case, the doctrine is held valid, in another, the same Top Court rejects its applicability. As stated in Nagendra Rao v. State of Andhra Pradesh (1994),"the shadow of sovereign immunity still haunts the private law, primarily, because of absence of legislation." Thus, it is necessary to make a law concerning the applicability of the principle in our country.