Immunity in civil suits of the Government officials comes from the doctrine of sovereign immunity which essentially means that even when all the elements of an actionable claim are presented liability can be avoided through the doctrine of sovereign immunity. It comes from a Common Law principle which states that the King commits no wrong and he cannot be guilty of personal negligence or misconduct, and as such cannot be responsible for the negligence or misconduct of is servants.
This doctrine has been considered as a wrong defense in case of acts of the states since the independence. But recently, the Courts have been instrumental in interpreting the doctrine narrowly and thereby allowing genuine claims for damages to not be defeated merely by the ancient doctrine.
In the Indian context, under article 300 of the Constitution, the extent of liability of the Government and its officials in case of civil wrongs (also known as Torts) is defined. The Article provides that the Government of India or of a State thereof, may sue or be sued in relation to its respective affairs in cases as the dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if the Constitution had not been enacted. The liability of the Centre or a State is thus coterminous with that of the dominion of India or a province before the Constitution. This provision is identical to the provision under the Government of India Act, 1935.
Sovereign and Non-Sovereign functions
However, the sovereignty and Acts of State are two different concepts. The old concept of sovereignty does not survive as sovereignty vests with the people. In the modern sense, the distinction between sovereign and non-sovereign functions does not exist. The old concept came into existence from the decision in O. Navigation Company v. Secretary of State, where C.J. Peacock determined the vicarious liability of the East India Company by classifying its functions into ‘sovereign’ and ‘non-sovereign’. However, there were no clear distinctions between the two. After the independence, the Courts started to hold the Government responsible for the tortuous act of its employees. However, in Kasturi Lal v. State of Uttar Pradeshthe Apex Court, by holding police power as a Sovereign Act and distinguishing it from a non-sovereign act, took a different view and the entire situation was embroiled in confusion.
In the later years, by liberal interpretation the Courts limited the immunity to civil suits of State by holding more and more functions of the State as non-Sovereign, to ensure the liberties of individuals. There has been clear disagreement as to the approach adopted in Kasturi Lal case, as it does not hold relevance in the current times because of the welfare functions of the Government. But the requirement of overruling the principle laid down by Kasturi Lal case still remains.
The sovereign functions that have been recognized by the Courts till now are: Performance of statutory duty, maintenance of public path, maintenance of military road, commandeering goods during war, training for defence,arrest and detention, performance of military duty, maintaining law and order, collection of revenue, etc.
Moreover, there are two distinct types of Sovereign Immunity to civil suits that the State benefits from. Firstly, immunity to jurisdiction, the meaning it would be inappropriate for one State’s courts to call another State under its jurisdiction. Therefore, State entities are immune from the jurisdiction of the courts of another State. Secondly, Immunity in civil suits from execution, meaning it would be improper for the courts of one State to seize the property of another State. Both these immunities can be waived off by the governments concerned.
The present-day position with regard to the tortious liability of the state has undergone a sea change, as the courts take a very restrictive view of the so-called ‘sovereign functions’, expanding the area governmental tortuous liability. While the basis of the law still remains traditional, the law as such has assumed a modern complexion and is in tune with the contemporary social needs.
In the case of State of Mysore v. Ramchandra, the High Court held the state government responsible for the damage caused to the adjoining land of the plaintiff. The state government has even been held liable to make good the loss incurred by an individual, due to embezzlement by treasury officials. The state has been held for malicious prosecution by its official. Tortious acts of functionaries of the state like Railways and in certain cases even the Municipal bodiesand other statutory bodies or incorporation s like, electricity boardhave been attributed to the government.
This approach is predominantly visible in the cases involving personal liberty, in line with the approach adopted by the Supreme Court in Maneka Gandhi case. Especially in cases relating to arrests and detention.State governments have been held responsible for the act of negligence committed by hospital employees in state-run hospitals, including health camps, sterilization operations, and surgeries. In fact, even torts against property have been attributed to the State, where no sufficient cause is shown for the plaintiff being deprived of his right in the property.
 ‘Sovereign Immunity- No Defence in Private Law’, AmardeepGarje, available at http://ssrn.com/abstract=1347948
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