Date: 23rd Sept, 2020
by Riya Wasade
'rex non potest peccare – the King can do no wrong’
MEANING OF SOVEREIGN IMMUNITY
The concept of sovereign immunity which originated from a Common Law doctrine finds its roots in the legal maxim ‘rex non potest peccare’. In its current application, sovereign or state immunity prevents a government, its subdivisions, agencies et al, from being sued without its consent.
TYPES OF SOVEREIGN IMMUNITY
Sovereign immunity as it is accepted around the world is of two types, i.e.,
i. Restricted or qualified immunity,
- like India and the United States of America, wherein immunity extends only to sovereign functions of the state and not commercial,
ii. Absolute immunity
- like China and Hong Kong, wherein any proceedings against foreign governments is inadmissible unless immunity is waived.
Under the premise of the restricted immunity, there is further bifurcation in its form – (a) from suit (or jurisdiction/adjudication), and, (b) from enforcement.
Immunity from suit prevents any party from asserting any claim against the immune. Subsequently, immunity from enforcement or execution prevents a party, despite being a successful litigant, from collecting on or enforcing the judgement against the immune. As has been reiterated in international law, neither of these forms are absolute in nature, permitting some exceptions to these immunities.
Therefore, in matters where a plea of state immunity has been successful, it would result in either the courts refusing to hear the dispute or being incapable of giving any effect to any award or judgement they make against the immune state.
SOVEREIGN IMMUNITY IN INDIA
Taking a look at the Indian adoption of this concept, it is restricted or qualified in nature.
Section 86 of The Code of Civil Procedure 1908, governs the application of this immunity, pursuant to which foreign governments, states and their organs can be sued with the consent of the Indian government, in cases involving commercial and trading activities and contractual obligations undertaken by them in India.
Reiterating this in a landmark judgement, the Supreme Court of India in Mirza Ali Akbar v. United Arab Republic & Anr. (1966) 1 SCR 319: AIR 1966 SC 230 held that Section 86 of the CPC, 1908, “...it would be legitimate to hold that the effect of Section 86(1) is to modify to a certain extent the doctrine of immunity recognised by international law...foreign states can be sued within the municipal courts of India with the consent of the Central
Government...it would not be open to a foreign State to rely on the doctrine of immunity under international law...”