The distinction between sovereign and non-sovereign functions is crucial in defining the responsibilities of the state. Sovereign functions are those essential for governance and state survival, while non-sovereign functions encompass activities where the state acts as an economic or social agent. This differentiation is particularly important in matters of state immunity, liability, and the parameters of judicial review.

Sovereign Functions:

Sovereign functions are inherent to statehood and are performed to maintain law and order, security, and effective governance. These functions include defense, foreign affairs, and legislative actions. Examples include maintaining armed forces, engaging in diplomatic relations, and levying taxes. These functions are characteristically non-delegable and involve the state's use of coercive power.

The landmark case of Kasturi Lal v. State of Uttar Pradesh (1965) illustrates the concept of sovereign immunity. The Supreme Court ruled that actions taken by the state in exercising its sovereign powers are exempt from liability. In this instance, the plaintiff was unable to recover damages for gold confiscated by the police, as the court classified the police's actions as performing a sovereign function.

Non-Sovereign Functions:
Non-sovereign functions are activities the state undertakes in its capacity as a service provider or in pursuit of socio-economic objectives. These functions often overlap with those performed by private entities, such as operating schools, hospitals, or businesses. In these areas, the state takes on a role similar to that of a private individual or corporation.

In State of Rajasthan v. Vidyawati (1962), the Supreme Court established the state's liability for the negligence of its employees when performing non-sovereign functions. The case involved a government vehicle used for administrative purposes, for which the court determined that the state could not claim sovereign immunity.

Legal Tests for Differentiation:

Courts have developed criteria to distinguish between sovereign and non-sovereign functions. One test assesses whether an activity is necessary for the state to function as a sovereign entity. If the activity is deemed essential, it is likely classified as a sovereign function. Conversely, optional or welfare-oriented activities generally fall under the category of non-sovereign functions.

The case of Shyam Sunder v. State of Rajasthan (1974) clarified that operating a transport service by the government is a non-sovereign function, being a commercial, rather than an essential governmental activity.
In the case of Union of India v. Harbans Singh, a military truck, owned and driven by military personnel, was transporting meals from the Delhi cantonment for distribution to soldiers on duty. When this truck was involved in an accident that caused a fatality, the court ruled that the activity was an exercise of sovereign power, thus absolving the State from liability.

Conversely, in Union of India v. Savia Sharma, the Jammu and Kashmir High Court determined that transporting soldiers from a railway station to their Unit Headquarters via military truck was a non-sovereign function. Consequently, the court found that the State was liable to compensate a respondent injured by the truck during this activity.

Impact on State Liability:

The distinction between sovereign and non-sovereign functions directly influences state liability. The state typically enjoys immunity from liability for actions performed within its sovereign functions. However, the state can be held liable under the principle of vicarious liability for actions undertaken in its non-sovereign capacity.

Nagendra Rao & Co. v. State of Andhra Pradesh (1994) further illustrates this. The Supreme Court emphasized that immunity for sovereign functions should not extend to arbitrary or negligent acts outside the scope of governance, thereby limiting the scope of immunity.

Constitutional Perspective:
From a constitutional perspective, sovereign functions align with the Directive Principles of State Policy under Part IV of the Indian Constitution, which provide guidelines for governance. Non-sovereign functions reflect the state's responsibility to implement the welfare model as envisioned by the Constitution.

For example, the state's duty to provide free education under Article 21A and to ensure public health under Article 47 are non-sovereign functions. Conversely, the maintenance of law and order as outlined in Article 355 is a sovereign function.

Challenges to the Distinction:
The modern welfare state often obscures the line between sovereign and non-sovereign functions. Activities like managing public infrastructure, traditionally non-sovereign, are increasingly viewed as integral to governance. Courts have encountered challenges in maintaining clarity in this distinction, as evidenced in cases involving public sector undertakings or privatized services.

In Indian Oil Corporation v. NEPC India Ltd. (2006), the Supreme Court clarified that public sector undertakings, while engaged in commercial activities, are subject to the same liabilities as private entities.

Global Perspective:
Internationally, sovereign immunity is recognized, but its scope varies. Countries such as the USA employ a "restrictive immunity" approach, holding states accountable for non-sovereign (commercial) actions. Indian courts have taken a nuanced position, balancing state immunity with the demands of justice.

In United States v. Gaubert (1991), the U.S. Supreme Court applied the Federal Tort Claims Act, differentiating between discretionary functions (sovereign) and operational acts (non-sovereign) to determine liability.

Conclusion:
The distinction between sovereign and non-sovereign functions has practical implications for justice and governance, determining the extent of state accountability and influencing the balance between individual rights and state immunity. While robust legal frameworks have been developed, evolving state roles necessitate continuous re-evaluation of these principles.

In the future, a clearer legislative framework could help demarcate these functions more precisely, ensuring accountability without compromising state sovereignty. Integrating the public's expectations of governance with established legal principles is critical to strengthening the balance between immunity and liability in a democratic society.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: imranwahab216@gmail.com, Ph no: 9836576565