This article is written by Charul Mishra, from Symbiosis Law School, Hyderabad. In this article, the author has dealt with sovereign and non-sovereign functions of the State and its interpretation of immunity of state through various cases.

Introduction

Sovereign immunity is the reasoning given for wrongs committed by the government or its representatives. Apparently, these are based on public policy grounds. Consequently, even if all the elements of an actionable claim are present, it is possible to prevent liability by giving this rationale. The doctrine of sovereign immunity is centred on the principle of Common Law derived from British Jurisprudence whereby the King does no wrong and that he cannot be accused of personal negligence or misconduct, and as such cannot be held liable for his servants’ negligence or misconduct. Another part of this theory is that a State cannot be prosecuted in its own courts and this is considered as an element of sovereignty.

This theory changed in Indian courts from the middle of the nineteenth century until recently. When a legitimate claim for damages is brought before the courts and is rejected by an outdated law, that obviously has no validity, indignation and requests for clarification are bound to occur. The Indian courts kept shortening the scope of sovereign functions in order to not let legitimate claims be defeated so that the victims could obtain damages. India’s Law Commission, too, suggested abolition of this outdated doctrine in its first report. However the draft bill for the abolition of this doctrine was never passed for numerous reasons, and therefore it was left on the judge to determine on the integration of this doctrine in accordance with the Indian constitution.

Sovereign and non-sovereign functions of the state

Sovereign functions of the state can be defined as those functions where the state is not answerable before the court of law for their performance. These functions are mainly concerned about the defence of the country, maintenance of the armed forces of the country, and maintenance of peace in the territory. These functions can only be performed by the state for external sovereignty and that is why they are not amenable to the jurisdiction of ordinary Civil Courts and are primarily inalienable functions. But apart from this, there are various sovereign functions of the state which are not primarily inalienable which include taxation, police functions comprising maintenance of law and order, legislative functions, administration of law and policies, and grant of pardon.

While non-sovereign functions are those functions that are amenable to the jurisdiction of an ordinary civil court and if the state does any tortious act or breach of contract, it will be liable for the wrong done. But today, it has become very difficult to differentiate between the Sovereign and non-sovereign functions of the state. According to the case of Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India, the court for the first time dealt with the difference between Sovereign and non-sovereign functions. It stated that the Secretary of the State will not be liable for its sovereign functions and would be liable for only the commercial functions. This judgment helped the court to understand and interpret the functions of the state when the question of liability arose. But there was no established protocol or norm to decide which function is sovereign and which is non-sovereign.

Important judgements differentiating between sovereign and non-sovereign functions of the state

Following are the judgments which are given by the courts to understand the functions carried out by the state and how these can be used to differentiate between the sovereign and non-sovereign functions of the state:

Performance of statutory duty

There is a particular measurement based on which the court can decide whether any function comes under the sovereign function or not. In the case of Shivbhajan Durga Prasad v. Secretary of State, in which a chief constable was arrested and prosecuted. Later he was acquitted. But the petitioner sued the secretary of the state stating that he was liable for the wrong done by a constable. The court held that the secretary was not liable for the acts of the constable.

Maintenance of public path

The State maintains public routes for public welfare and it does not involve any commercial object. For the laying of public paths and their maintenance is a part of the sovereign functions. The Calcutta High Court, in the case of McInerny v. Secretary of State, held that in maintaining a public street, the State did not carry out any commercial operations and thus, was not liable for any damage suffered by the plaintiff by making contact with a public road post built by the Government.

Maintenance of the military road

This is also one of the important sovereign functions of the government. The Maintenance of the military road is carried out by the government for the purpose of defence. In the case of Secretary of State v. Cockcraft, the plaintiff was injured due to the negligent act of the servant. The servant left a heap of gravel on a military road on which no one was walking. The Court held that the government will not be liable for such acts as maintenance of the Military road is a sovereign function.

Commandeering goods during the war

In the famous case of Kessoram Poddar & Co. v. Secretary, Commandeering the goods during the war was said to be a sovereign function. According to the facts of the case, a company sued the secretary of the state to recover damages since due to defendant’s failure to take delivery and pay for certain goods bought by the defendant, the company suffered a huge loss. The Court held that since this order of goods and delivery comes under the Commandeering of goods which is a sovereign function, such claim is dismissed.

Training for defence

The government provides training for the safety of the general public and that’s why it is also a sovereign function. In the case of Secretary of State v. Nagerao Limbaji, where the plaintiff sued the secretary of the state for damages for the loss of his finger due to explosion near the area which was used to practice for defence, the court held that the facilities are given for the bombing practice and other training for defence, these come under the sovereign functions of the state as such functions are not exercised by the government for their personal benefit instead they are exercised for the welfare and safety of the country and its citizens.

Arrest and detention

Maintenance of law and order comprises the duty of arrest and detention. It is the sovereign function of the State when any act is performed in good faith. He lodged a complaint about damages against the Secretary of State in M.A. Kador Zailany v. Secretary of State, where some police officers wrongfully detained and imprisoned the plaintiff. It was held that, unless the wrongdoing was performed either by Order or on its behalf and subsequently accepted or adopted by it, the Government was not responsible for the wrongs committed by its officers. Similarly, In the case of Gurucharan Kaur v. Madras Province, the D.S.P. instructed the Sub-inspector of Police to go to the station and prevent other Maharaja from leaving the station. Upon the train’s arrival, the Sub-Inspector, acting under bonafide intention, however through mistaken belief, decided that he was to detain the Maharani, not only stopped the Maharani from boarding the train but also closed the gate in the iron fence and placed two constables near it. Maharani and her daughter filed a complaint about wrongful confinement. It was held that the government should not be held accountable for police conduct carried out in good faith in the fulfilment of its statutory duty. Thus, if the government servant’s unjust interference is performed in good conscience, the State would not be responsible.

Performance of military duty

In the case of Union of India v. Harbans Singh, where, as a result of the reckless and careless act of a truck driver from India’s Military Department engaged in military service, the father of the plaintiff was knocked down and run over while providing meals to military personnel on service. The State has not been held accountable as the driver’s act has been performed when exercising sovereign function.

The state shall not be liable for its servant’s acts where such acts are performed without the authority of law. The state cannot be held liable in these cases as there is no activity on the part of the State which makes the State responsible. State officials possess a huge discretionary power that may affect human freedom. However, the state would be held responsible for misuse of discretion or excessive exercise. In this respect, the Indian Law Commission has proposed that the State shall be liable if the employees behave negligently or maliciously, in the execution of legislative duties placed on it or its employees, whether or not the discretion is involved in the exercise of these duties.

Maintenance of law and order

According to the facts given in the case of State of Orissa v. Padmalochan, the Orissa Military Police made a lathi charge on a mob gathered in front of the District Court to push their demands. It was claimed that the police personnel attacked members of the mob without any order from the Magistrate or other police officials, as a result of which the plaintiff sustained injuries. He filed a complaint against the State for injuries that he endured. The lower court ruled in favour of the plaintiff but, on appeal, the High Court acknowledged that police officers performed misconduct in the execution of their duties without authorization and that this did not exempt the unlawful act from the competence of delegated sovereign function and further held that whatever injuries are caused to the plaintiff were due to the exercise of the sovereign functions.

In M.P. State v. Lal Chironji, likewise, while regulating the procession, the police made a lathi-charge and caused damage to the respondent’s property, the State Government will not be held liable for the damage. The State functions, as given under Section 30 of the Police Act, 1861 delegate governing processions to police and the role of upholding law and order, including the quashing of riots which is delegated to the concerned authority as provided for in section 14 of the Criminal Procedure Code, 1973. Private individuals can’t execute such roles. They are powers exercisable as “Sovereign functions” of the State by the State or its delegates.

Collection of revenue

In the case of Kuppanna Chetty & Co. v. Collector of Anantapur, the Tahsildar wrongly attached the movable goods under the Madras Revenue Recovery Act and because of this, the plaintiff suffered a huge loss. The Court held that since the collection of income was a sovereign or purely State activity, in violation of its statutory duties, the State was not liable for any tort committed by a government employee during such activity. Similarly was upheld in the case of the State of Andhra Pradesh v. Ankanna. According to the fact of the case, a bullock-cart which belonged to the plaintiff was unlawfully and maliciously detained by the income officers for the realization of land revenue under the Revenue Recovery Act. The Court stated that the collection of land income was a sovereign activity and that the State was not responsible for the malicious act of its servants when that act was carried out under a statute

Through the above case laws, it can be interpreted that the State cannot be held accountable for any wrong done by a public official in the alleged exercise of its legislative duties in the field of sovereign functions such as income collection etc.

Administration of justice

Administration of justice, which is one of the State’s functions in the exercise of sovereign functions, is to recognize and order the trial of such persons in accordance with the law. If the people were found guilty while discharging the administration of justice, the framework of judicial duties cannot be properly executed. This is applicable to the person whose actions as a Judicial Officer might be considered to have been in his judicial capacity. An agent of government shall have both judicial and executive powers. Only if he discharges judicial actions in the course of administration of justice would he be spared from liability. Even if he has committed the crime of false imprisonment when functioning in his executive capacity, he cannot assert sovereign immunity.

In the case of Mata Prasad v. Secretary of State, the appellant was convicted and imprisoned for dacoity for four and a half years. He also had to pay Rs.500/- fee. However, he was released after 2 1⁄2 years for his good conduct. The plaintiff sought damages against the Secretary of State for his officials having been wrongfully convicted. The Court held that a person convicted by a competent court and punished for that crime is therefore not entitled to sue India’s Secretary of State in Council for damages in consequence of the State’s actions in the exercise of its sovereign functions.

Similarly, In the case of Secretary of State v. Sukhdeo, the magistrate in his official capacity ordered that certain property belonging to the plaintiff be confiscated in compliance with the fine imposed on his family. In the case brought by the plaintiff for the recovery of the land, the Court ruled that the State Secretary was not responsible for the Court’s seizure of the land. In Maha Nirbani v. Secretary of State, the criminal court’s presiding officer ordered certain ornaments that were given to a police officer by the plaintiff to be returned to the original owner and not to the plaintiff.

Protection of stolen goods in the police warehouse

In the case of Kasturi Lal v. the State of U.P., three constables arrested the appellant and confiscated his belongings such as gold and silver on the suspicion that he stole some of these goods. The silver was returned when he was released on bail, and the gold was held in the custody of a head constable at the police warehouse. But it was misappropriated by the constable in charge of the house, and he fled to Pakistan. Therefore, the trader filed a lawsuit against the Uttar Pradesh government claiming the return of the gold or, in the alternative, the gold’s full price. It was shown that the authorities were negligent in keeping the gold in safe custody.

The Court observed that if a tortious crime is performed by a public servant and it necessarily leads to a claim for damages, the issue to be raised is whether it was the tortious act committed by the public servant in discharge of constitutional duties applicable to that public servant and essentially focused on delegating the sovereign functions of the State to him. Police officers committed the act of negligence when dealing with the assets they had confiscated from Kasturi Lal in the exercise of their legislative powers. Under the constitution, state officials’ constitutional powers are reserved to apprehend and detain a perpetrator, and to seize his suspected belongings. The State was also left free from liability.

Although later, various individuals were against this judgement and found the decision to be illogical since it wrongly followed the pre-constitutional rule and defined statutory power as a sovereign power. An official’s immunity that corresponded to the legislative authority was only valid for the bonafide exercise of power, but not for the violation or misuse of it. The case of Kasturi Lal is widely criticised by lawyers as it is a clear example of an inadmissible test being misused.

Malicious prosecution

In the case of Maharaja Bose v. Governor-General in Council, the petitioner sued for false arrest and malicious prosecution for damages brought against the Governor-General in Council. According to the facts of the case, the complainant had been travelling from Howrah to Patna on the defendant’s Railway. He boarded an intraclass compartment in the train. At around 1 in the night, three Indian soldiers forcefully occupied the plaintiff’s seat when the said train arrived at Asansol Railway Station. The complainant objected to this, and he told two Railway workers about it. However, they did not act. 

The servants of the defendant to whom the plaintiff had previously complained reached and made several inquiries, and told the soldiers to vacate it. When such discussion was going on at the duty assistant station, the station master rushed to the compartment and accused the plaintiff of pulling the chain and insulted him by using dirty language and he was seriously assaulted. Without ever hearing again, the plaintiff was pulled out of the compartment and placed on false charges in the custody of railway police and detained there. It was claimed that the plaintiff was a prominent performer and was on the way to participating in the Red Cross dance program at Patna. But the complainant refused to reveal his name and identity, so he was arrested by the Railway officer.

The Court held that there was no credible reason for the claimant to cut the chain of communication. The servant of the defendant was justified in treating the claimant for failure to reveal his name and address to the police. The Court also found the servants of the defendant genuinely and fairly suspected the plaintiff’s guilt and that rejected the malice. The suit was dismissed, and no liability for the employee’s act was held by the Government.

Vicarious liability and tortious liability of the State

Vicarious liability is a type of stringent, secondary liability which arises under the agency’s common law principles i.e. respondeat superior which means the superior’s responsibility for the actions of his subordinate, or, in a wider sense, the responsibility of any 3rd person who has the “right, capacity or duty to control” the activities of a violator. The responsibility is placed not on the tortfeasor but on someone who should be in control of the tortfeasor. Officers’ moral responsibility for their wrongs has become more vogue with proof indicating equality between the ruler and the subject in question.

Only when the king found it necessary to assume the responsibility of a public officer was it then used to pay the fee by the state treasury. Dharma was seen as the civil law binding on both the king and the subjects. The rulers themselves administered justice as far as possible in both Hindu law and Muslim law, and the rest was done by the exceptionally learned, honest judges. The most notable recent phenomenon has been the court’s declaration that it has jurisdiction to award compensation.

State liability in India is simply understood by Article 300(1) of the Constitution which originally came through Section 176 of the Government of India Act, 1935. This could be traced all the way back to Section 32 of the Indian Government Act, 1915, the origin of which can be observed in Section 65 of the Indian Government Act, 1858. Therefore it will be seen that by the chain of legislation starting with the Act of 1858, each State’s Government of India and Constitution are in accordance with the East India Company’s succession. In other words, the Government’s responsibility is the same as before1858, the East India Company.

Conclusion

After considering all the above heads, it is very important to understand that whether an act of state is immune from prosecution or not, it depends on the facts of the case and the judiciary plays a very important role in the same. The court is the authority which would analyse the case and determine the liability of the right party. Sovereign immunity as a defence was never available where the State was involved in a commercial or private undertaking nor it is available where its officers are guilty of interfering with life and liberty of a citizen not warranted by law. In both such infringements, the State is vicariously liable and bound, constitutionally, legally and morally, to compensate and indemnify the wronged person. The doctrine of sovereign immunity has no relevance in the present-day context when the concept of sovereignty itself has undergone a drastic change.

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