Sovereign Immunity is a defense used to cover up misconduct by the State or its agents that appears to be based on considerations of policymaking. By providing this rationalization, responsibility can be avoided even when all the ingredients of an actionable claim are supplied.
The common law notion that the King does no wrong and cannot be held personally liable for his employees’ incompetence or misconduct—a theory that was inherited from British legal thought—is the foundation of the doctrine of sovereign immunity. This argument also stated that a State’s inability to be sued in its own courts without its permission was a feature of sovereignty.
From the middle of the nineteenth century until recently, this doctrine was dominant in Indian courts. Discontent and petitions for review are inevitable when a legitimate claim for damages is made to the courts and is rejected by an old doctrine that seems to have no relevance. The Indian courts kept restricting the scope of sovereign powers so that the sufferers would claim damages in order to prevent legitimate cases from being defeated.
The Law Commission of India also advocated for the repeal of this outmoded concept in its very first report. However, the draught bill to repeal this concept was never passed for a number of reasons, consequently, it was left to the courts to figure out if this theory was still coherent with the law.
When discussing the scope of sovereign immunity as it has evolved through time, it is important to look at Article 300 of the Indian Constitution, which outlines the Union or State’s culpability for acts of the Government.
Article 300
In India, the distinction between sovereign Immunity and non-sovereign functions was initially upheld with respect to the government’s general immunity from the cruel actions of its employees. There is no law in India that controls the State’s obligation.
The accountability of the Union or the State with regard to an ordinance is addressed in Article 300 of the Constitution of India, 1950. Section 176 of the 1935 Government of India Act established the basis for Article 300 of the Constitution.
The liability was coextensive with that of the Secretary of State for India under the Government of India Act, 1915, which in turn made it inextricably intertwined with that of the East India Company before the Government of India Act, 1858, according to Section 176 of the Government of India Act, 1935. According to Section 65 of the Government of India Act of 1858, everyone has the right to file the same legal actions against the Secretary of State for India as they would have pursued against the East India Company.
Thus, it will be clear that the Government of India and the Government of each State are in line to supersede the East India Company according to the chain of law starting with the Act of 1858. In other words, the Government’s liability is equivalent to the responsibility of the East India Company prior to 1858.
Types Of Sovereignty
Realistic and symbolic forms of sovereignty
During the ancient era, numerous states were ruled like kingdoms by their separate monarchs. Despite having total control, their senators had some degree of helplessness. So it led to the actual exercise of sovereignty.
Constitutional Backing
The state’s government is the only one with the authority to make final orders or instructions. All states ruled by kings must have the authority to enforce and issue laws, which is known as legal independence. Certain laws must also be wed and obeyed by the populace. The law is the expression of the sovereign’s will since the legal sovereign must have unbounded power. As a result, the legal sovereign is always decisive and deciding.
Public Authority
Simply put, it refers to the power of the overall population or masses in contrast to the power of specific attribute rulers. Each member has one vote, which governs the legislature by serving as a representative of the public. This denotes voting and humanity. In popular sovereignty, the public is viewed as supreme and first.
Political Dominance
According to Dicey, “There is another sovereign to which the legal sovereign needs to submit behind the sovereign which the lawyer recognizes.” The term “political sovereign” refers to that sovereign. The political sovereign must receive the required attention from the legal sovereign in all states that are ruled by law and order. One of the ambiguous and undefined terms is this one.
A class of persons known as political sovereigns has affected a large number of people. According to some distinguished individuals, political sovereignty displays itself through the voting process, the press, speeches, and a variety of other difficult-to-define ways. Legal sovereignty results from the political sovereign’s organization.
Legal Maxim
The legal maxim of Sovereign immunity acknowledges the dictum “rex non-potest peccare,” which literally translates to “the monarch cannot commit a misdemeanor.” It is founded on the common law principle of British law, which states that a king cannot be held responsible for the incompetence or misbehavior of his subordinates. The third characteristic of sovereignty is that a state cannot be held accountable in its court for any lawful wrong without that state’s permission.
Since the middle of the 19th century till the present, it has not been used after the Indian courts rejected it. The Indian court has traditionally prioritized legitimate claims by keeping the range of sovereign powers more constrained. in order to compensate those who have legitimate claims.
The repeal of this out-of-date theory has been suggested by the law commission of India in its most recent report. However, a number of factors prevented the bill calling for the repeal of this concept from being approved. According to the Indian Constitution, it was up to the courts to judge whether or not the aforementioned doctrine may be compared.
The court’s rulings are where the common law theory of sovereign immunity finds its roots. This theory was known as the king can do no wrong throughout that time period in history. In the society of today, there are no longer any of the basic justifications.
The party was not entitled to compensation for any torts committed by them due to the injustice resulting from their standing as the perpetrator. According to the tort law, culpability follows carelessness, thus the employer or government authority is liable for any illegal acts committed by its workers and servants while they were working for them. However, sovereign immunity undermines the effectiveness of this tort law. Therefore, the state’s sovereign immunity from tort liability is no longer valid and lacks a warranty.
Get daily updates and trendy news to enhance your knowledge with every topic covered. Including fashion, technology, current affairs, travel news, health-related news, sports news, Business, Political News, and many more.
For more information visit Live News Dekho
Definitely. We have 100x the transparency. You have executives that face accountability. You know who/where to sue and executives aren’t courting foreign sovereign immunity to avoid jail time. Or a simple way to frame it: /1
— Ari Paul ⛓️ (@AriDavidPaul) December 20, 2022