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Doctrine of sovereign immunity

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Doctrine of sovereign immunity

  1. 1. Doctrine of Sovereign Immunity • Vicarious Liability of the State. • King can do no wrong. • Position in England 1. Sovereign functions 2. Non Sovereign functions • Position in India • Constitutional Torts • Sovereign Immunity is subject to fundamental rights. • Present position in India is still uncertain.
  2. 2. POSITION IN ENGLAND 1. At Common law , the crown could not be sued in tort either (a) for wrong actually authorised by it or (b) wrong committed by its servant in the course of their employment. 2. This became incompatible with demand of justice. 3. The Crown Proceeding Act 1947 passed. 4. Now the crown is liable for a tort committed by its servants just like a private individual.
  3. 3. Position in India • Art 300 of the constitution of India provides that the UOI and the States are Juristic person. • They can sue or be sued. • P and O Steam Navigation Co. V. Secretary of state for India(1861) State was held liable as it was non sovereign function • Vidyawati v. Lokumal AIR 1957 Raj 305 State was held liable. • State of Rajasthan v. Vidyawati AIR 1962 SC 933In appeal by the state, the SC confirmed the decision of the HC. • Kasturilal v. State of U.P AIR 1965 SC 1039 State of U.P held not liable
  4. 4. • Smt. Basava v. State of Mysore AIR 1977 SC 1749 State was held liable • State of U.P V. Tulsiram AIR 1971 All. 162 Kasturilal case bypassed and the state was held liable and Rs 500 paid as compensation. • Rooplal v. Union of India AIR 1972 J&K 22 UOI was held liable for the act of Army jawans. • State of M.P v. Chironjilal AIR 1981 MP 65 State was held not liable for sovereign function. • Conclusion1. The govt. is not liable for the torts committed by its servant in exercise of sovereign power but liable in exercise of non sovereign functions 2. Sovereign power means powers which can be lawfully exercised only by a sovereign or by the person to whom such power have been delegated.
  5. 5. 3. No well defined test which is sovereign and non sovereign function. Constitutional Torts It is the liability of the state to 1. Protect fundamental rights 2. Maintain the law and Order 3. Prevent the crime. 4. Prosecution of the accused in case crime is committed. 5. Provide free and full medical aids. Sovereign Immunity is subject to fundamental rights * People union for Democratic rights v. State of Bihar AIR 1987 SC 355.-Rs. 20000/- as compensation to all 21 cases of death and Rs. 5000/- to each injured person.
  6. 6. • Bhim Singh v. State of J&K AIR 1986 SC 494. Rs 50000/- compensation. • Rudal Sah v. State of Bihar AIR 1983 SC 1086 Rs. 30000/- awarded as compensation for 14years illegal detention. • SAHELI v. Commr. Of Police, Delhi AIR 1990 SC 513. Compensation granted to the mother of a 9 yrs. boy died in police atrocities. Present Position in India is still uncertain • Recommendation of law commission of 1956 and suggestion of the SC, The Government (Liability in Tort) Bill 1967 has not yet been passed.

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