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DevelopmentofSovereignimmunityandstateliability

Name- Somashish

Class- I BA LLB A

Reg. no.- 1316057

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Sovereign immunity in Common Law

Crown- An exception to the general ruleregarding 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.

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The Crown Proceedings Act, 1947

Section 2(1) makes the Crown liable for alltorts committed by servants.

Section 2(2) provides that where the

Crown is bound by a statutory duty theCrown subject liabilities for breaching thesame.

However section 40 makes it clear that theact does not allow tort proceedingsagainst the sovereign in private capacity

Armed forces were exempt by section 10.

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An amendment in 1987

Crown Proceedings Act (Armed Forces)Act 1987.

Repeal of section 10.

No immunity to the armed forces from tortproceedings

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Government of India Act, 1858

Section 65: All persons and bodies politic shalland may take the same suits.against the Secretaryof State for India as they could have done against theCompany.

Thus, no formal extension of sovereignimmunity.

Later, section 300 of the IndianConstitution stated: The Government of India

may sue or be sued by the name of the Union of Indiaand the Government of State may sue or be sued bythe name of the stateas the Dominion of India andthe corresponding provinces or the correspondingIndian states might have sued or been sued, if this

constitution had not been enacted.

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Peninsular and Oriental Steam NavigationCo v. Secretary of State for India in Council

One of the horses of the carriage of the servant ofthe plaintiff company hurt by an accident causeddue to negligence of workers at a Governmentdockyard.

Calcutta HC Judgement draws a distinctionbetween sovereign powers and acts done in theconduct 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 sovereignacts and other acts by the servants of the state.

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State of Rajasthan v. Vidyawati

The Supreme Court allowed the claim fordamages by dependents of a person whodied in an accident caused by the

negligence of the driver of a jeepmaintained by the GoI.

Sinha, C.J., said: the state was in no betterposition 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.

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Kasturilal v. State of UP

Supreme Court refused to allow a claim fordamages with respect to a suit for failure inmaintenance and safekeeping of goods belongingto 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 sovereignfunctions.

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 ofa statutory or contractual bailee, and not sovereign

powers

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Kasturilal case ignored as precedent

Subsequent decisions of the SupremeCourt 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 statewas liable in cases of wrongs against

detainees.

Thus the Kasturilal judgement has lostvalue as precedent.

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New trends in USA

A change in approach to sovereigns indealing with claims relating to terrorism.

1983 Beirut Marine barracks bombing: Newprovisions to make Iran pay to the victims.

The Foreign Sovereign Immunities Act (FSIA)exception to immunity from jurisdiction wasenacted for claims for money damages forterrorist acts by states designated as state

sponsors of terrorism. A D.C. district court awarded claimants

against Libya of some $6.7 billion for theseven Americans dead in the Lockerbie

bombings.

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Thank you.