Development of Sovereign immunity and state liability

Name- Somashish Class- I BA LLB A Reg. no.- 1316057

Sovereign immunity in Common Law

Crown- An exception to the general rule regarding capacity. In Common Law, the King can do no wrong. Actual wrongdoer did not enjoy immunity. But petitions of right wouldnt lie against the state. Ex-gratia payment in some cases.

The Crown Proceedings Act, 1947

Section 2(1) makes the Crown liable for all torts committed by servants. Section 2(2) provides that where the Crown is bound by a statutory duty the Crown subject liabilities for breaching the same. However section 40 makes it clear that the act does not allow tort proceedings against the sovereign in private capacity Armed forces were exempt by section 10.

An amendment in 1987

Crown Proceedings Act (Armed Forces) Act 1987. Repeal of section 10. No immunity to the armed forces from tort proceedings

Government of India Act, 1858

All persons and bodies politic shall and may take the same suits.against the Secretary of State for India as they could have done against the Company.

Section 65:

Thus, no formal extension of sovereign immunity. Later, section 300 of the Indian Constitution stated: The Government of India
may sue or be sued by the name of the Union of India and the Government of State may sue or be sued by the name of the stateas the Dominion of India and the corresponding provinces or the corresponding Indian states might have sued or been sued, if this constitution had not been enacted.

Peninsular and Oriental Steam Navigation Co v. Secretary of State for India in Council
One of the horses of the carriage of the servant of the plaintiff company hurt by an accident caused due to negligence of workers at a Government dockyard. Calcutta HC Judgement draws a distinction between sovereign powers and acts done in the conduct of other activities. Since act done by govt servant in the course of trading activity, the govt was held liable. But Madras and Bombay High Courts did not agree with the distinction laid down between sovereign acts and other acts by the servants of the state.

State of Rajasthan v. Vidyawati

The Supreme Court allowed the claim for damages by dependents of a person who died in an accident caused by the negligence of the driver of a jeep maintained by the GoI. Sinha, C.J., said: the state was in no better position in so far as it supplies cars and keeps drivers for its civil service. Further, the Common Law immunity to the sovereign never existed in India.

Kasturilal v. State of UP
Supreme Court refused to allow a claim for damages with respect to a suit for failure in maintenance and safekeeping of goods belonging to the plaintiff which had been seized by the police in the course of his arrest. The power to arrest and search a person, and seize his property were stated to be sovereign functions. Judgement criticised by HM Seervai. The court ignored that the duty to take care for the property seized from a person was in the nature of a statutory or contractual bailee, and not sovereign powers

Kasturilal case ignored as precedent

Subsequent decisions of the Supreme Court in Rudul Shah v. State of Bihar, Bhim Singh v. State of J. and K. and Sebastin M. Hongray v. Union of India. The apex court held in all these cases of wrongful arrest and custody that the state was liable in cases of wrongs against detainees. Thus the Kasturilal judgement has lost value as precedent.

New trends in USA

A change in approach to sovereigns in dealing with claims relating to terrorism. 1983 Beirut Marine barracks bombing: New provisions to make Iran pay to the victims. The Foreign Sovereign Immunities Act (FSIA) exception to immunity from jurisdiction was enacted for claims for money damages for terrorist acts by states designated as state sponsors of terrorism. A D.C. district court awarded claimants against Libya of some $6.7 billion for the seven Americans dead in the Lockerbie bombings.

Thank you.