ABSTRACT

The overlap between the doctrines of the Rule of Law and Sovereign Immunity has more often than not led to multiple conflicts between the State and its citizens. The doctrine of Sovereign Immunity provides safeguards to the State from its tortious liabilities, a concept which owes its origins to the feudalistic concept of the phrase, the ‘King can do no wrong ‘and has evolved over time taking a myriad of shapes. The doctrine of sovereign immunity can be placed in the interplay of the theories of absolutism and restrictionism of the State. The corollary of this doctrine can be found in the doctrine of the Rule of Law. Post-Independence the law makers of the Indian Constitution sought to establish a federal, democratic and welfare State which enshrined the values of the Rule of Law and endeavored to limit the scope of the doctrine of Sovereign Immunity. The futility of the doctrine of in a modern welfare state has been raised by many jurists and judges alike including the Law Commission of India. The Courts, initially uncertain of this doctrine of Sovereign Immunity to the courts have faced multiple challenges to ascertain the Rule of Law and the rights of the people. The doctrine of Sovereign Immunity threatens the pillars of Rule of Law as it provides certain safeguards and free passes to the State to act in manner which may be violative of the rights of the people and in effect places the state above the supreme law of the Indian Constitution. There exists an ardent need to clearly demarcate the ambit of both the doctrines, because a doctrine which grants the State immunity from being tried in its own courts can be exploited, authoritarian and absolutist leading to serious violations of the rights of the people of the country.

THE LAW OF TORTS

The East India Company entered India in 1608 as a commercial enterprise undertaking spice trade. As the commercial ties deepened between the East India Company and India, in order to protect this trade from other imperialistic powers, the Company established its political enterprise in India after defeating the Nawab of Bengal, Siraj-ud-Daulah, and his French allies in the Battle of Plassey in 1757. However, in order to justify their growing control over its Indian possessions in the latter half of the 18th century, the East India Company had to “device a vision at once of India’s past and its future” to design an effective administrative and legal structure.[1] With the able administration of Warren Hastings, the Governor General of the East India Company in 1772, a systematic and dedicated judicial system was established in accordance with the English Common Law.

With the onset of the English Common Law in India, many concepts and notions which, though earlier unknown to the Indian sub-continent found their way to the Indian legal system. One such concept was the advent of the Tort Law. The Law of Torts owes its genesis to the judicial activism of the English judiciary which was developed on a case-to-case basis by way of judicial precedents. Etymologically, the term “tort” is related to the Latin term “tortum” that connotes conduct which is twisted, crooked or unlawful.

Tort Law was based on the maxim, “where there is a right, there is a remedy”. Therefore, the legal right of each citizen was protected and it could not be trespassed upon without providing a due remedy. However, there stood an exception to Tort Law of “sovereign immunity” which finds its roots in the old feudal concepts wherein the Crown was provided privileges and immunities from any liability, prosecution or charge for any action or inaction undertaken by it. This was based on the maxim that “the king can do no wrong” which denotes the paramount supremacy of the Crown since the King could do no wrong under the banner of the “divine right of the Kings”. Therefore, no proceedings, civil or criminal, were maintainable against the monarch in person, for it was said that the courts being the kings own, could have no jurisdiction over him.[2] In the event the Crown fell within the purview of the legal system, it shall in effect, be subjugated to the Courts of the State. Thus, developed the doctrine of ‘sovereign immunity’ which owed its origin to the feudal origins of the royal courts. It was also believed that, “[T]he king could not be sued in his central courts of law, because, like any other [feudal] lord, he could not be sued in his own courts.”[3]

THE RULE OF LAW

The other end of the spectrum to the doctrine of ‘sovereign immunity’ lies the doctrine of the ‘Rule of Law’. The Rule of Law emerges variously, as a “thin” notion entailing procedural restraints on forms of sovereign power and governmental conduct, which may also authorize Holocaustian practices of politics[4] and as a “thick” conception involving the theories about the “good”, “right”, and “just”.[5] The roots of the origin of the doctrine of “Rule of Law” can be traced back to the works of Plato (circa 360 BC) and Aristotle (circa 350 BC), who propagated the idea that the government should be subservient to law in order to prevent any arbitrary rule or abuse of power. Significantly even in England, in 1215, King John signed the Magna Carta wherein the King was bound by the law.

The theories of John Locke and Montesquieu propagated ideas of liberalism, social contract and the separation of powers. However, it was the British constitutionalist Albert V. Dicey who introduced the phrase “Rule of Law”. In accordance with his book, “Introduction to study of the laws of the Constitution” (1885), Dicey established the rule of law and its trident approach. Firstly, as per the Rule of Law no person could be subjected to punishment except for a breach of pre-established law and such punishment must be determined after following the due course of legal procedure. The second principle of Rule of Law was that everyone is equal before the eyes of the law and thirdly, Rule of Law flows from the judicial and legal recognition of individual rights.

In India, the Upanishads were the first books to recognize the Rule of Law. Therefore, the Indian customs already recognized the doctrine of the Rule of Law which was reaffirmed when the Indian Constitution established a federal government enshrining the principles of justice, liberty and equality. To ensure the supremacy of law, a system of checks and balances was promulgated in the Indian Constitution over the government in drafting and administrating law in an equitable and just manner. The framers of the Indian Constitution were aware of the doctrine of the Rule of Law as enunciated by Dicey and as adopted by the American constitution, and thus, incorporated the same in the Indian Constitution. The Indian Constitution is the supreme law of the land and all other laws are in subjugation to the Constitution. Any law not in consonance or found to be violating any provision of the Indian Constitution is said to be void. The guiding principles of the Indian Constitution are found in the Articles reflecting the fundamental rights which are equally available to all citizens of the country.

Article 14, 19 and 21 represent the very basic of human right to life, liberty and equality, often collectively referred to as the golden triangle of the Indian Constitution. Article 14 of the Indian Constitution represents the principles of equality before the law and equal protection by law as propagated by Dicey. Article 19 of the Indian Constitution postulates the protection and freedom of speech and expression to the citizens of India. The quintessential right of life and personal liberty has been represented in Article 21 of the Indian Constitution. Article 32 and 226 of the Indian Constitution further provides an impartial and an independent judiciary to adjudicate disputes and grievances stemming from violation of the fundamental rights. The Supreme Court held that, “The independence of the judiciary is a fighting faith of our Constitution. It is the cardinal principle of the Constitution that an independent judiciary is the most essential characteristic of a free society like ours and the judiciary which is to act as a bastion of the rights and freedom of the people is given certain constitutional guarantees to safeguard the independence of judiciary. An independent and efficient judicial system has been recognised as a part of the basic structure of our Constitution.”[6]

It must be remembered that our entire constitutional system is founded on the Rule of Law, and in any system so designed it is impossible to conceive of any legitimate power which is arbitrary in character and travels beyond the bounds of reason.[7] In the case Shankari Prasad V. Union of India[8], the Apex Court opined on the doctrine of the Rule of Law and its consequential representation in the Indian Constitution upholding that the Parliament has the power to amend Part III of the Constitution under Article 368 as under Article 13, the term ‘law’ denotes any legislative action and not a constitutional amendment. The amendment of the Indian Constitution was upheld in the case Sajjan Singh v. State of Rajasthan[9], which approved the majority view of the Shankari Prasad case stating that the amendment of the Indian Constitution meant the amendment of all provisions of the Constitution. However, the view expressed in the Shankari Prasad case and the subsequent Sajjan Singh case was overruled by the Supreme Court in the case, Golaknath v, State of Punjab[10]  held that, the Parliament has no power to amend the Part III of the Indian Constitution so as to take away or abridge the fundamental rights and thus, at the end the Rule of Law was sub-served by the Judiciary from abridging away. However, the Rule of Law was once again threatened by the Twenty Fourth Amendment to the Indian Constitution in the year 1971 which inserted a new clause (4) in Article 13 stating that “nothing in this Article shall apply to any amendment of this constitution under Article 368”.[11]

This debate finally led to the law being settled in the landmark case, Kesavananda Bharti v. State of Kerala [12], in which the Apex Court declared Rule of Law to be the basic structure of the Indian Constitution. The Supreme Court also demarcated the powers of the parliament which allowed it to amend any Article in the Indian Constitution except such Article which would change or amend the basic structure of the Constitution. The Rule of Law sought to limit the powers of amendment as provided under Article 368 of the Indian Constitution. This view was further reiterated by the Supreme Court in the case of Indira Nehru Gandhi v. Raj Narayan[13].

• THE RULE OF LAW AND SOVEREIGN IMMUNITY

Article 300 of the Indian Constitution embodies within it, the principles of Rule of Law as it provides the right of the government of India to sue and be sued. In accordance with Article 300, the State may be sued in relation to its affairs, under the name of Union of India, or sue under the name of the State, subject to any law which may be made by Act of Parliament.[14] This propagates and reinforces the supremacy of the Rule of Law over any protection that may be granted to the State. The Courts have severely limited the scope of sovereign immunity as the power in India vests with the people who form the government, and are under the law of the State. It, therefore, provides a framework by way of which the authority of the government comes under the purview of the Rule of Law.

Significantly, there has been a conflict between the rights of the government as accorded by the doctrine of Sovereign Immunity and the doctrine of Rule of Law due to the overlapping nature of these doctrines. Sovereign immunity was provided to all such acts of the Government which fell under the head of a sovereign function. However, the line demarcating what constitutes a “sovereign” and “non-sovereign” function, has substantially deteriorated. Therefore, the Supreme Court in the case, N. Nagendra Rao Vs. State of AP[15], “barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity.”

India, being a welfare state has undertaken multiple trading and commercial activities such as operating the railways[16], welfare relief activities[17], maintenance of government vehicles[18] and running hospitals[19] which are outside the purview of the doctrine of sovereign immunity. The primary postulate of Rule of Law upon which the whole constitutional edifice is dependent is the absence of arbitrary power.[20]The Indian judiciary has sought to limit the scope of the doctrine of sovereign immunity as set out in the cases the Corporation of the city of Nagpur vs its Employees[21] and State of Bombay vs Hospital Mazdoor Sabha[22]. The Madhya Pradesh High Court while relying on these cases held that, “These cases show that traditional sovereign functions are the making of laws, the administration of Justice, the maintenance of order, the repression of crime, carrying on of war, the making of treaties of peace aid other consequential functions”[23]. It is pertinent to note that the Courts even in such cases where the State was accorded the protection of the doctrine of Sovereign Immunity from vicarious liability, the public servant responsible for the commission of the tort was provided the same protection[24].

Even though all the merits are unhurt in the concept of the Rule of Law, the only negative aspects of the concept is that respect for law degenerates into rigidity of legalism which is injurious to the nation.[25]In A.K. Kraipak v. Union of India[26], the Supreme Court held that under our constitution, the rule of law pervades over the entire field of administration and organs of the state. However, a straight-jacket approach to the doctrine of Rule of law prevailing over the State’s Sovereign Immunity can also be problematic. It may tip the scales in favour of the judiciary making the executive answerable to it and unhinge the checks and balance system enshrined in the Indian Constitution.

CONCLUSION

With the democratization and independence of the Indian government, there has been a drastic change in the concept of sovereignty, as a result of which scope of the doctrine of Sovereign Immunity has been severely limited. However, despite the significant decentralization of power and the adoption of a federal form of government, the Courts in India have often faced uncertainties when it comes to determining the true ambit and scope of it. The doctrine of Sovereign Immunity may at times be autocrat and high handed as it restricts and at times even denies the relief to citizens injured by a wrongful act of the State, by claiming immunity while exercising of sovereign functions.

The genesis of the Article 300 of the Indian Constitution can be traced back to the English common law, to the 19^th century wherein the East India Company was provided certain immunities since it was discharging sovereign function on behalf of the English Crown. The Government of India has adopted a feudalistic, archaic provision introduced in the Indian legal system by the imperialistic and repressive rulers of England. Thereby, the Article 300 of the Indian Constitution suffers from a weak foundation of a legal system adopted from the alien rulers of India.

A democratic state which has been set up by the people, for the people and to protect its people and to promote their welfare, should as an accepted rule, be held legally responsible for its wrongful acts, rather than being provided immunity from such liability. It is understandable that there may be extraordinary circumstances wherein such Sovereign Immunity may be accorded on the State, however, such exceptions should not be the norm and instead be confined to indisputably exceptional circumstances. Therefore, the Courts have sought to demarcate and analyze this doctrine to be in line with the Rule of Law, so as to clearly limit the use of this doctrine to only such unique cases where it is truly needed. It is the responsibility of the public administration for effective implementation of Rule of Law on constitutional commands which effectuate fairly the objective standards laid down by law.[27]

There is an inherent conflict in the judicial precedents set by the Indian judiciary. It is disheartening to see that despite the attempt to limit the scope of the doctrine of Sovereign Immunity, the judiciary itself has pronounced such judgements which have been antithetical to limiting this doctrine. As a result of which more often than not the government authorities have sought to take immunity from their wrongdoings by shielding behind the doctrine of sovereign immunity. Every government servant holding public power is as a trustee of the society and accountable for due effect national goals.[28] India has to balance its obligations as a welfare state, commercial enterprise and the largest employer of people with its adherence to the doctrine of Rule of Law.

The Law of Torts and the Sovereign Immunity provided by it is one such area of the law where the need for a clear statement of the law in a statutory form is urgent and undeniable.  It is imperative to strike a balance and provide stability to this doctrine by re-visiting, acknowledging and implementing the well-reasoned and researched suggestions provided by the Law Commission and jurists to limit the liberal interpretation of this doctrine by the Judiciary. The legal maxim, Ubi jus incertum, ibi jus nullum (where the law is uncertain, there is no law) holds true in the current Indian scenario where due to uncertainty, the legal right and remedies of the citizens of India are getting neglected and oppressed. It is imperative that the general exception of Sovereign Immunity be granted only in an exceptional particular instance. Concrete propositions and clear legislation should be encouraged as opposed to abstract doctrines having far reaching consequences. The law needs to be unambiguous, concise and precise, ideally in the form of a legislation that is easily accessible and conveniently comprehensible to the citizens of India.

[1] THOMAS R. METCALF, IDEOLOGIES OF THE RAJ 6 (Cambridge University Press, 1995).

[2] HARDINGE STANLEY GIFFARD EARL OF HALSBURY, HALSBURYS LAWS OF ENGLAND: CROWN AND ROYAL FAMILY (Butterworth 1998).

[3] POLLOCK & MAITLAND THE HISTORY OF ENGLISH LAW 518 (Cambridge University Press 1898).

[4] G. AGAMBEN, HOMO SACER: SOVEREIGN POWER AND BARE LIFE  (Stanford University Press, 1995).

[5] R.P. George, ‘Natural Law and the Separation of Law and Morals’, AMERICAN JOURNAL OF JURISPRUDENCE, 55, 2007.

[6] Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441

[7] Suman Gupta and Ors. Etc v. State of J & K and Ors, AIR 1983 SC 1235

[8] AIR 1951 SC 455

[9] AIR 1965 SC 845.

[10] Golaknath v. State of Punjab, 1967 AIR 1643.

[11] Constitution (Twenty-Fourth Amendment) Act, 1971.

[12] AIR 1973 SC 1461.

[13] AIR 1975 SCC (2) 159.

[14] Article 300, Constitution of India, 1950.

[15] AIR 1994 SC 2663.

^[16] Chairman Railway board v. Chandrima Das, 2000 2 SCC 465.

^[17] Shyam Sunder v. State of Rajasthan, 1974 AIR 890.

[18] State of Vidhyawati v. State of Rajasthan, 1962 AIR 933.

[19] Achutrao Haribhau Khodwa v. State of Maharashtra, 1996 SCC (2) 634.

[20] Som Raj v. State of Haryana, AIR 1990 SCR (1) 535.

[21] 1960 AIR 675.

[22] 1960 AIR 610.

[23] “Ad Hoc” Committee v. Radhabai, AIR 1976 MP 164.

[24] State of UP v. Tulsi Ram, AIR 1971 All 162.

[25] DR. J.J.R.UPADHAYA, ADMINISTRATIVE LAW (Central Law Agency 2020)

[26]  A.K. Kraipak v. Union of India, A.I.R. 1970 SC 150.

[27] State of Punjab v. G.S.Gill, (1997) 6 SCC 129.

[28] Superintendent Engineer, Public Health U.T. Chandigarh v. Kuldeep Singh, (1997)9 SCC 199.