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Limits of sovereign immunity

April 21, 2021

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This article is authored by Revati Magaonkar, from Dayanand College of Law. This article elaborately deals with the doctrine of sovereign immunity and its limitations.

Introduction

The concept of sovereign immunity is developed in the common law jurisprudence. As we acknowledge and read the history books firstly we get to know how several countries along with ours witnessed the rule of great kings and emperors who ruled on their own decisions and the opinion of their minister’s on any social and societal aspects, thus there were no functions of a government running by the help of people elected from within the society. As the king had various powers while regulating his role he was protected from punishments because the king had to run the state efficiently and effectively. Therefore, the doctrine of sovereign immunity has come into force by stating its meaning as sovereign is immune from being sued for civil suits and criminal prosecution cases because it is considered that state cannot commit a legal wrong. Thus, the legal doctrine of sovereign immunity provides a ruling to the government body with an option of choosing immunity from civil lawsuits and criminal prosecutions. India has adopted a restricted sovereign immunity that is under the Code of Civil Procedure in India.

Meaning of the term

The term sovereign immunity was derived from a British common law doctrine which is based on the idea that the king can’t do any wrong. In the United States, sovereign immunity only applies to the federal and state government and not the municipalities, as the federal and state government can relinquish their sovereign immunity. After the passing of the Federal Tort Claims Act by the federal government that waived the various types of tort claims. Sovereign immunity deals with the fact that the state cannot be sued without its consent.

Concept of sovereignty

Sovereignty, in political theory, means the ultimate supervisor or authority which works in the decision-making process of the state and also in maintaining order. This concept is of those controversial ideas from political science and international law, it relates to the difficult concepts of the states, government, independence, and democracy. This term is derived from the Latin term “superanus” through the French “souveraineté“, which primarily means coordinative to supreme power. Though its application has changed from its traditional meaning.

Federal sovereign immunity

While discussing sovereign immunity at a federal level an individual can’t sue the federal government as an entity unless it says otherwise. Suits can be filed against federal employees under the Federal Tort Claims Act (FTCA) for violating rights while they are performing their roles, only in case of negligence of a factor. If such an act is done the individual should determine whether they can sue under the FTCA. If they cannot be sued under the Act their claim may get barred.

State sovereign immunity

Under this doctrine, a state cannot be sued in federal or state court without its consent to it. As the 11th amendment limits to only two particular situations in the federal court, the supreme court doesn’t hold the immunity derived by the said amendment. A state court can invoke its immunity even when it is issued under an otherwise valid federal law. The state has the full authority to explain the scope of its immunity from the suits based on its state law.

Types of sovereignty

Nominal and real sovereignty

In the ancient period, many states had the rule of a kingdom that was ruled by their respective kings. They wielded absolute power but their senators were a bit powerless. Therefore, it resulted in the exercise of real sovereignty.

Legal sovereignty

It is that authority of the state which has the power to give and issue final order or commands. In all states ruled by kings, certain laws should be wed and obeyed by its people and it is also necessary to have the enforcing and issuing authority for these laws, which knits own as legal sovereignty. The authority of the legal sovereign has to be absolute, hence, the law is the will of the sovereign. Hence, the legal sovereign is always definitive and determinant.

Popular sovereignty

It simply means the power of the larger part of society or masses contrasting with the power of individual rulers of the class. It implies voting and humanity, as each member has one vote that controls the legislature by its representation of the people. The public is regarded as supreme and prior in popular sovereignty.

Political sovereignty

Dicey says that “Behind the sovereign which the lawyer recognizes there is another sovereign to which the legal sovereign has to bow.” That sovereign is known as a political sovereign. In all states which are governed by rule and order, the legal sovereign has to pay proper attention to the political sovereign. This is one of the vague and indeterminate terms. Political sovereign is such a class of people who have influenced many people. Some eminent persons have explained it as, political sovereign manifests itself by the system of voting, by the press, by speeches, and many other ways which are not easy to describe and define. The organization of the political sovereign leads to legal sovereignty. Legal sovereign can be said as the law-making authority in terms of law and political sovereignty is always behind that sovereignty.

The sovereign immunity: legal maxim

The legal maxim of sovereign immunity recognizes the principle of “rex non potest peccare” which means the king can do no wrong. It is based on the common law principle of British Jurisprudence, which says that a king cannot be held liable for the act of negligence or misconduct and also cannot be held for the act of his servants. The other attribute of sovereignty is that a state cannot be held liable for any legal wrong in its court without its consent.

The Indian courts have declined it and it is not in use since the mid-nineteenth century till the present. The Indian court has always given first place to the genuine claims by keeping the scope of sovereign functions narrower. So that those genuine claims should get damages. The law commission of India in its most first report has recommended the abolition of this outdated doctrine. But due to various circumstances, the bill for this recommendation of the abolition of this doctrine was never passed. It was left on the courts to decide on the comparability of the said doctrine according to the Constitution of India.

Types of sovereign immunity

There are two types of immunity from which the state generally gets benefits, those two are as follows:

Qualified immunity

Qualified immunity gives protection to a government authority or official who is working in his scope of employment or area or work in the government organization, in good faith and without violating the statutory and constitutional rights that a reasonable person is aware of. Qualified immunity is a doctrine created by the judicial means that protects government officials from personal liability from violating constitutional rights such as the right to be free from the excessive police force as long as the officials don’t violate it as it is established in law.

Absolute immunity

It immunes government officials from criminal prosecution and civil suits for avoiding damages. This immunity completely bars a lawsuit with no exceptions. This immunity generally applies to the prosecutors, judges, legislators, and executive officials of all government authorities.

Immunity to jurisdiction

The immunity of the state to jurisdiction has come into results from its reliance on the fact that it would be inappropriate to call one state’s court under the jurisdiction of the other state. So the entities of the states are immune from the jurisdiction of the other state’s court. Therefore, this immunity can generally be relinquished by the state entity. It simply means that when a state authority or a government official commits a wrong in another state, that state where the wrong has been committed cannot call the said state in its court for that matter. So it is said that states are free from the jurisdiction of the courts of another state.

For instance: A (from India) has committed a crime in America, but as India is protected under sovereign immunity from being tried in another state’s court, A is not under an obligation to go to the court of America. Though this immunity can be relinquished by the state entity.

Immunity from execution

The states are also immune from execution, as it would be improper for one state’s court to seize the property of another state. The immunity from execution is also generally waived. It simply means that when a case arises where a person or entity of a state is tried by another state and the judgment is passed against that entity, in such matters immunity is given to the state against the enforcement of such ruling because it would be against the principle of justice if one court rules for seizing away another state’s property. Hence, immunity from execution is given in the matter of property to be seized by the government and court of another state.

Legislative provisions which encompass sovereign immunity

India has taken steps to apply the principle of law and it also promptly looks forward to whether these principles are being applied unconditionally in the country or not. Certain provisions in the legislation hold on the principle of sovereign immunity and those are as follows:

Section 86 of the Civil Procedure Code, 1908

Section 86 of CPC deals with the provision that no suits shall be instituted against foreign countries. This section itself points out the exception where a suit should be instituted with the prior permission of that state government that has been aggrieved by the act of the other state.

Diplomatic Relations (Vienna Convention) Act, 1972

This Act gives diplomatic immunity, to the state and persons who are on the state’s mission or are the ambassadors in other countries. Some of the sections of this Convention are followed by India where the sovereign immunity is extended to the family, staff members, and servants of those ambassadors.

Transactions not included in sovereign immunity

States’ tenancy disputes are not protected under sovereign immunity.
States are also not protected when legal wrong has been committed in contractual and commercial transactions.

It is to be observed that in all situations the consent of the government is not compulsory because when a state sues another state under some special laws, in such situations consent of the government is not required. Such special laws are the Consumer Protection Act, Carriage by Air Act, etc. Sovereign immunity is used for protecting the government from altering its policies whenever a person has any issues with them. Hence, the important concept about it has to be noted down that state governments are not immune from the lawsuits which have been brought against them by another state or by a federal government.

Conclusion

Therefore, the common law doctrine of sovereign immunity has originated from the decisions of the court. In the historical period, this doctrine was described as the king can do no wrong. All the justifications that existed initially no longer exist in today’s society. The injustice which was arising out of the status of the wrongdoer barred the recovery for tortious act or conduct of the party. The sovereign immunity denies the effectiveness of the tort law which states that liability follows negligence so the employer or government authority is liable for the illegal act done by its employees and servants during their employment period. So the state’s sovereign immunity for tortious liability is now outdated and it doesn’t have a warranty.

References

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