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Author - Associate Tarannum Siddiqui

Despite every evidence being present in a particularly disfavoring scenario against the state or any of its representatives, the Sovereign Immunity can save all of them. Some countries proffer the sovereign immunity to its government, whereas some deal with it otherwise. There is a different policy on sovereign immunity in every country.

To comprehend it better, let’s first understand the term sovereign immunity, and from where did it come. The term “sovereign immunity” is made up of two words. Sovereign means ruler or monarch and immunity means resistance. Thus, this term implies immunity to the ruler from being sued. This ideology came from the notion of British who embrace a thought that the monarch can do no wrong. 

This ideology gave origin to the doctrine of Sovereign immunity. According to such belief, the government and its other departments are safe from prosecutions. Therefore, sovereign immunity primarily protects the government and its diverse bodies from being legally contested. Each state or country has a sovereign policy. Some of the countries provide sovereign immunity to all its government bodies whereas some do not provide sovereign immunity to the municipality.

Although sovereign immunity can be waived in various situations such as if submitted a prior written application in the court or if submitted a request to the authority while presenting as a defendant or participating in a case.

In India, the sovereign immunity came in existence before Independence when East India Company asked for liability for their servants who commits wrong. It was the first time when a proposal like this had come in the supreme court of Calcutta. Although there was some provision made perhaps never a clear vision is given as to which acts will be considered under sovereign immunity and which will not be.

Although, after independence, many cases against the state came in existence and when the court founded the state guilty, they rejected the request of state for sovereign immunity and took the proper actions against it. Perhaps, seeing many cases, the court had eventually decided to restrict the immunity given to the state by considering some of its function as non-sovereign. There is never a law passed that abolished sovereign immunity. Article 361 of the Constitution of India says that the court can not take any legal action against the president and governors of India till they are holding the position. However, they may be charged for their actions.

Let’s take a look at some cases when sovereign immunity has not been used, such as in the case of Challa Ramakrishna Reddy v/s. The state of Andhra Pradesh, which demonstrates that whether sovereign or non-sovereign, it makes no difference anymore. It reflects that if anyone has committed wrong, s/he is subject to punishment. The court, in the case of Rudal Shah v/s the state of Bihar, first time granted for the losses. More such cases came in courts, and the court realized that if the charges are right, then the accused has to be punished. Thus, sovereign immunity is not in use anymore.

Therefore, we can conclude that Sovereign immunity came into existence, but it did not come in use for a long time. The court acknowledged the value of right and wrong and nullify this doctrine in many cases, however, not through a proper law.