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Rex Non-Potest Peccare: Doctrine Of Sovereign Immunity

Sovereign immunity is a concept that was developed in the common law jurisprudence. In earlier times we did not adhere to the concept of a government with elected individuals. Literature of the past has clearly shown us that kings were responsible for well-being of their subjects and they were the ones who ruled the state on aid and advice of their ministers. Though the decision-making power and the ability to form rules were all given to the kings to decide.

Due to assuming such power, they also were required to be protected against any punishment (punitive or deterring) because they had to run the state effectively and efficiently. Hence the doctrine of sovereign immunity evolved where it was stated that a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution.

The legal maxim that recognizes this principle is Rex non potest peccare which translates to the king can do no wrong. The principle also extends to say that a king cannot be held liable for acts of misconduct or personal negligence and neither can he be held liable for acts of his servants.[1]

Rex non-potest peccare is a Latin legal maxim which means that 'the king can do no wrong'. It is also called as doctrine of Sovereign Immunity or Crown Immunity.[2]

Sovereign immunity originated in England in 1788[3] in the case of Russell v. Inhabitants of Devon[4]. In that case, a British plaintiff sued his own town to recover damages done to his wagon by a bridge that was in need of repairs. The court held that the town was not liable, in part because it was better that an individual should sustain an injury than that the public should suffer an inconvenience. This rationale supporting municipal immunity was first adopted in the United States in Massachusetts in 1812[5] and first appeared in Vermont in 1849[6].

This maxim having two meanings can be explained as follows:
  1. The sovereign i.e. the ruler is independent of any jurisdiction.
  2. Prerogative of the Crown extends not to do any injury, being created for the benefit of the people, it cannot be exerted to their prejudice.

As Sir William Blackstone, an English Jurist, in his Commentaries on the Laws of England (1765)[7] wrote that:
The King, moreover, is not only incapable of doing wrong, but even of thinking wrong: he can never mean to do an improper thing: in him is no folly or weakness.[8] This explains us the essence of the doctrine.

Due to some act of the state, A had to suffer few losses, however he was not able to sue the state for it as the state was protected by the principle laid by the maxim 'Rex Non Potest Peccare'.[9]

Kinds of Sovereign Immunity:
Immunity to jurisdiction- This simply means that if one government official or state authority commits a wrong in another state, the state where the authority is from cannot be called to this state and tried for a matter. Therefore, states are free from jurisdiction of courts of another state.

For example, A, an Indian, committed a crime in Pakistan. India is protected under this immunity from being tried by courts of Pakistan because it enjoys the doctrine of sovereign immunity. Though this immunity can be waived off by the state entity.

Immunity from execution- Even if a case arises where a person or entity of one state is tried by another state and a judgment is passed against the entity, immunity is given to a state against enforcement of this ruling because it would be against the principles of justice for one court, to rule for seizing away property of another state.

Position in India:
The Law Commission of India in its very first report recommended the abolition of this outdated doctrine. But for various reasons, the draft bill for the abolition of this doctrine was never passed, and thus it was left to the courts to decide on the compatibility of this doctrine in accordance with the Constitution of India.

In India through different cases and government decisions we can conclude that sovereign immunity as a concept has restricted use. There are certain pieces of legislations which encompass the principle of sovereign immunity which are:[10]

Section 86 of the Civil Procedure Code (1908): This section lays down that no suit must be instituted against foreign states. But the suit itself points towards an exception where a suit may be instituted with the prior permission of the government of the particular state which is aggrieved by the act of another state.

The Diplomatic Relations (Vienna Convention) Act, 1972 gives certain diplomatic immunities to states and people who are on missions or are ambassadors in other countries. Certain sections of this convention are followed by India where the sovereign immunity/power is extended to family, servants and staff members of these ambassadors/ diplomatic officials.

Provision in Constitution of India:
Article 300 of the Indian Constitution states the following:
  1. The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.
  2. If at the commencement of this Constitution:
    1. any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings, and
    2. any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings.


States do not enjoy immunity under tenancy disputes which has been reiterated in the case of Syrian Arab Republic v. AK Jagodia[11]. Also, a point to observe is that states are also not protected when the wrong is committed under commercial or contractual transactions.

In fact, in the case State of Maharashtra v. Czechoslovak airlines[12], sovereign immunity could not be availed by the state because even though the airline was a department of the foreign state, the relief sought was based on a commercial transaction which is not covered under the said immunity. The same has been the position of the courts in various other cases such as the Jute mills case (1993) and the Ethiopian airlines case (2011).

Limitations of Sovereign Immunity:
The first test to analyze whether a particular action falls under the principle is done by the government where the government needs to consider the facts and circumstances of the case entirely and must provide the authorities with a reasonable opportunity to explain why the suit must be initiated. After this the government can make a decision while providing reasons for accepting or refusing the application. The decision of the government can be put up for judicial review. This is considered to be the second stage of testing the case where if the courts believe that the government has not passed a right decision, they can give the matter back to the government to reconsider and pass a fresh order.[13]

Discussion of Relevant Cases:
In the case of Peninsular and Oriental steam navigation company v Secretary of State[14], the court tried to define the principle more categorically by separating acts committed by East India Company into sovereign and non-sovereign acts. Thus, the court examined the vicarious liability of a foreign power in the context of their transactions in India.

The follow up case was Secretary of State v. Hari Bhanji [15], where the courts held that the only acts committed by East India Company which are protected are acts of state. But in both these cases, a distinction between sovereign and non-sovereign functions could not be identified.

In State of Rajasthan v. Vidhyawati[16], the husband of the respondent was fatally injured while walking along a public road by a jeep car driven by a driver employed by the appellant State. The car and its driver were being maintained for the official use of the District Collector and at the time of the accident, the car was being driven back from a workshop after some repairs to the Collector's residence. On a suit for damages by the widow and minor daughter of the deceased, while the lower court absolved the State from any liability, the High Court found the state liable.[17] It held that the state was responsible for the acts committed by the driver in course of his employment like any other owner would be. Thus, the principle evolved to say that the state or owner was liable for acts of his servants which wasn't followed earlier.

But the court's competence regarding this principle was questioned in Kasturi Lal v. State of UP[18], where the court held that arrest, seizure and abuse of police power is a sovereign function and hence is protected by immunity.

Recent decisions of courts have truly made us understand that this principle of immunity is an evolving concept and the Indian courts have not been particularly successful in drawing an exact difference between sovereign and non-sovereign functions. But in one of the latest judgments of State of AP v. Challa Ramakrishna Reddy[19], the the court held that there is no point of differentiating between functions in the present times and that sovereign immunity as a concept itself is no longer valid.

Problem with the Principle:
India as a country has continuously evolved the principle of sovereign immunity with powers being equally distributed between the state and the judiciary. One improvement which may help evolve the principle more is that sovereign and non-sovereign functions must be clearly identified and included under the civil procedure code. There are many decisions in which the courts have had to apply the principle only because there are no specific grounds laid down for the applicability of immunity. Hence it is necessary for this demarcation to be there so that courts can easily adjudicate (decide) upon matters/issues concerning immunity.[20]

The Doctrine of Sovereign Immunity or Crown Immunity, as it is said in Latin: Rex non potest peccare- This principle might be suitable during ancient times where there used to Rulers, Kings, Queen and Royal Family ruling a particular country but not of much relevance during the modern times especially in a democratic country such as India.

The world is constantly evolving, developing and progressing ever since so must the laws and legal principles so that their purpose could be served even during the present in accordance with the changes that might have occurred as a result of advancement and modernization. Gone are those days when King/Ruler used to be considered as the Supreme Power and one who possess divinity.

A human being by its nature will commit mistakes. The point being that giving such immunity to the ruler/ government is inherently unfair, and in case of negligence or mistake on the part of the State, it should be held liable to compensate for the loss, damage or injury happened to the aggrieved party who might have suffered due to a wrong act done by any of the state body or government authority.

With respect to the scope and interpretation of the Doctrine in Indian Legal Context, as also mentioned above, there needs to be certain consideration and clarification in the regard of Functions performed by the Government so that their liability can be ascertained in case of any wrong committed or injury caused to any citizen by the state.

Books Referred:
  • Constitution of India by VN Shukla, 13th Edition.
  • Commentaries on Laws of England by Sir William Blackstone (1765)
Websites Referred:
  3. Vermont League of Cities & Towns (VLCT) Mac Info Sheet: Sovereign Immunity
    Also read:
  4. 100 Engl. Rep. 359 at 362 (1788, K.B.).
  5. Mower v. Leicester, 9 Mass. 247 (1812)
  6. Baxter v. Winooski Turnpike Co., 22 Vt. 114 (1849)
  7. Book I: Of the Rights of Persons: Chapter VII: Of the King's Prerogative
  11. 116 (2005) DLT 444
  12. (1978) 80 BOMLR 495
  14. (1861) 5 Bom HCR 1 (App).
  15. ILR (1882) 5 Madras 273.
  16. AIR 1962 SC 933: 1962 Supl. (2) SCR 989.
  17. VN Shukla, Constitution of India, Eastern Book Company, 13th edn, Reprinted 2021 with Supplement 2020, Pg no. 906.
  18. Kasturi Lal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039, 1046: (1965) 1 SCR 375.
  19. Civil Appeal No. 3969 of 1989; (2000) 5 SCC 712: AIR 2000 SC 2083.

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