The state or the sovereign, according to this legal idea, can commit no legal wrong and is exempt from civil and criminal prosecution. It comes from the British common law principle of “rex non potest peccare,” which means “the monarch cannot injure.” There are two reasons why this doctrine should be believed:

  1. The state could not be sued in its own courts without its agreement as a feature of sovereignty;
  2. The award of compensation would have an impact on the Crown’s purse.

This belief is similarly based on the idea that the King (in this case, of England) rules by divine right and hence cannot do anything wrong. This idea was given to India by the Britishers who reigned over the Indian people, and Indian law adopted it after the country gained independence from colonial domination.

Since King is the Supreme Authority formed by law, no law may be executed against the one who framed the law, according to Jurist Holmes.

I. Doctrine of Sovereign Immunity in England

The English have abandoned this idea in favour of creating a system with a law that meets the needs of modern society. The Crown Proceedings Act of 1947 is the law in question. This Act establishes a number of scenarios in which the Crown may be held accountable. The Crown shall be subject to all those liabilities in tort to which, if it were a person of full age and capacity, it would be subject: In respect of torts committed by its servants or agents. In respect of any breach of those duties which a person owes to his servants or agents at Common Law by reason of being their employer.

Provided, however, that no proceeding against the Crown shall lie by virtue of this sub-section in respect of any act or omission of a Crown servant or agent unless the act or omission would have given rise to a cause of action in tort against that servant or agent or his estate apart from the provisions of this Act.

In the United Kingdom, the move from absolute sovereignty to constrained sovereignty was slow. It all came to a head in 1978, when the State Immunity Act was passed. In the United Kingdom, a number of rulings have rejected the absolute approach to state immunity in favour of a more limiting approach. The State Immunity Act provided legislative approval and backing for these actions.

  • Federal Tort Claims Act, 1946: (American Law)

The Federal Tort Claims Act (FTCA) is a complicated statute that authorises specific sorts of claims against federal government entities and federal personnel who have caused harm while acting in the course of their employment, but only under specified conditions. The federal government’s immunity from Tort was revoked. The state is responsible for the employer’s mistakes. Damages will be compensated.

II. Doctrine of Sovereign Immunity in India

The Indian Courts continued to confine the scope of sovereign functions in order to ensure that genuine victims received just compensation. The doctrine was proposed to be abolished in the Law Commission’s initial report. However, the bill to abolish the doctrine failed to pass the Indian Parliament, leaving the destiny of the theory to be decided by the courts based on its compliance with the Indian Constitution.

  • Suing and getting sued by the government: The Constitution of India:

Article 300 of the Constitution addresses the State’s power and liability in relation to litigation brought by and against it. When the Government of India and/or the Government of any State are juristic persons for the purposes of a suit or proceeding, Article 300 specifies. Although the Union of India and state governments have the power to sue or be sued, this is subject to any provision of an Act of the Parliament or Legislature of that State enacted under the Constitution’s powers.

If the Government of India is being sued or sued, it will be done in the name of the Union of India, and if it is a State Government, it will be done in the name of the State. Such suits can only be brought in regard to the government’s relevant matters and similar lawsuits that could have been brought against or by the Dominion of India and its provinces prior to the establishment of the Indian Constitution. So long as Parliament does not pass legislation on the subject, the legal situation remains the same as it was before to the Constitution’s inception. As a result, the situation that existed prior to the Constitution’s adoption stays unchanged, despite the fact that Parliament and state legislatures have the capacity to change it through legislation.

  • ARTICLE 361:
  • This provision states that the President, Governors (of the State), and Raj Pramukhs are not accountable to any court for their duties.
  • It falls within the category of vicarious liability, which asserts that these positions are not liable in person when performing acts in the course of their obligations. Rather, the government will be held accountable.
  • Indian Patent Law and State Immunity:

The Indian patent law also includes measures that address the state’s culpability when it infringes on patent rights. “Any machine, apparatus, or other article in respect of which the patent is granted, or any article made by using a process in respect of which the patent is granted, may be imported or made by or on behalf of the Government for the purpose merely of its own use,” according to Section 47 of the Indian Patent Act, 1970. The meaning of the phrase “use of government” is left open-ended in this case, and there is no provision for reimbursement to the patentee in the event of such use.


The idea of sovereign liability has been justified in the past by the argument that diverting finances to compensate citizens under tort liability could bankrupt the state and stifle its expansion. Furthermore, if the State was not dragged into litigation and threatened with legal action for every job performed, it could do its tasks more efficiently and effectively. As a result, it was understood that a person could suffer, but society should not be harmed. The idea of sovereign immunity has been deemed obsolete and inapplicable in today’s society, which is based on trust and concern for the common good.

This would not only bring clarity to people’s minds, but it would also save the justice system from a slew of cases related to this issue. Liability insurance must be accommodated by the legislation, or such resorts in the form of funds where self-insurance is possible must be created.

The modern state is not one of policing. It is a state that focuses on social welfare. It should look for citizens from birth to death, especially since it was elected and voted into power on the basis of reciprocal concern and care.

The phrase “to err is human” also applies to those who labour in the administration of the state’s functions. As a result, it’s difficult to run on a doctrine that says the government can’t do anything bad. The only time this rule is broken is in circumstances of extreme emergency, such as war. The State is immune in these matters because of the principle of ‘privatum incommodum probono publico pensatur,’ which states that the individual’s interests must yield to the public’s comfort.

In today’s world, sovereign immunity is irrelevant. The vicarious liability should be treated as the decisive ground, according to a recommendation from the Law Commission’s initial report.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

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We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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