Written by Kuber Kumar,
Lex Lumen Research Journal Summer Intern,
June 2026
BACKGROUND:
The concept of Sovereign Immunity traces its origin back to the English Common Law and the rule of the Crown. It is derived from the Maxim “rex non potest peccare” which literally translates as “the King can do no wrong”. It reflects the Monarchial ideology which portrayed the King or Sovereign as an infallible and divine figure, incapable of acting unjustly and wrongfully. Therefore, it shielded the Ruler from facing any action or liability as a consequence of their actions, whether right or wrong. This immunity also extended to the superior state officials and heads, but it could not be availed by their servants or lower rank officers as they were held personally liable, instead of transferring liability to the State.
One of the foundational cases in English Common Law for this Principle is the case of Viscount Canterbury v. Attorney General[1]. Here, the plaintiff’s property was damaged in a fire at the British Parliament, caused due to workers’ negligence. Since the workers were employed by the Crown, it was contended that the Crown be held Vicariously Liable. But the same was rejected and the Principle of Sovereign Immunity was upheld. The Ratio Decidendi was that since the King or Crown could do no wrong, therefore no liability followed for the wrongful act committed by its servants. As the world moved from kingdoms to democracies, the idea of who exactly the “Sovereign” is naturally evolved too. The principle of Sovereign Immunity did not disappear, it simply adapted, being reinterpreted to fit the times. Even today, it quietly lives on in various legal systems, particularly across Commonwealth countries.
DEVELOPMENT AND POSITION IN INDIA:
Colonial Rule in India introduced the English legal system through Charters, Judicial Plans, and Law Commissions, establishing key legal precedents and principles still in use today. Sovereign Immunity, initially to protect the East India Company from liability for its servants’ acts, has faced judicial scrutiny post-independence to limit its scope.
The case of Peninsular and Oriental Steam Navigation Company v. Secretary of State for India[2] is one of the earliest cases where the question of Sovereign Immunity being applied in Indian context was considered. A horse rider was injured due to negligence of servants of the East India Company at a dockyard in Calcutta. When the defence of Sovereign Immunity was pleaded, a distinction was made between its applicability in English and Indian Context. While the immunity was generally “absolute” in England, a line of difference was drawn between different actions of the Government for the purpose of determining its liability in India. This was done in terms of classifying them as “Sovereign” and “Non-Sovereign” functions. The meaning and scope of this distinction has been a subject of Judicial Interpretation over time, but in the aforesaid case, acts which cannot be performed or delegated to private individuals and have to be exclusively performed by the State were held to constitute Sovereign Function, and no liability is incurred for any harm caused by the same. However, maintenance of dock was held to be a Non-Sovereign Function, and hence the Company was held liable.
While this distinction originally arose due to the dual nature of the East India Company, being both a trading concern and a territorial power, yet it was adopted as the basis for determining State Liability even after Independence. In Union of India v. Harbans Singh[3], a military truck accident was held to be a Sovereign Function, exempting the Government from liability. Similarly in State of Orissa v. Padmalochan[4], excess force by Military Police was treated as Sovereign Function. However, in Rup Ram v. State of Punjab[5], the Punjab High Court held the Government liable when a Public Works Department truck knocked down the plaintiff. Although courts have adopted varying reasoning, this distinction continues to exist.
The difference in conscience of the Indian Judiciary with respect to State’s Liability occurred in the landmark case of Kasturi Lal Ralia Ram Jain v. State of UP[6]. Jewellery and other valuables were confiscated from a person by the police on suspicion of stolen property. When he was released on bail some of the belongings were returned to him, but the gold kept in the police station was misappropriated by a constable, who fled with the same. The plaintiff brought an action against the government claiming compensation. Now the Peculiar position of this case is that while it formed a virtual shield protecting the government from liability for the wrongdoings of its agents for several years, yet the unacceptable position of Sovereign Immunity in case of apparent negligence and violation of citizen’s rights was also recognized. Though ultimately the Government was not held liable, the voice of Supreme Court summarized by Chief Justice Gajendragadkar[7] is as follows; while “The act of negligence of Police Officers dealing with the property was apparent”, yet “the Court was forced to refer to the case of Peninsular and Oriental Steam Navigation Company v. Secretary of State and excuse the state’s liability.” This was the recognition of apparent flaws in the Concept of Sovereign Immunity and paved the way for a different recourse in India.
REFORMS IN ENGLAND:
The country that gave birth to the concept of Sovereign Immunity was ironically also the first to recognize its flaws. This doctrine was widely criticized for unfairly protecting the Crown or the Sovereign. The system had a peculiar feature where suing the state required the King or Queen’s own permission. And even worse was that when a wrongdoer was unidentifiable, the Treasury would randomly select a Crown servant as defendant. This was held unacceptable by the House of Lords in the case of Royster v. Cavey,[8] ruling that the named defendant must be the actual wrongdoer.
The Crown Proceedings Act,1947 became the primary legislation fixing the liability of the Sovereign in England. Section 2 for the aforesaid purposes held the Sovereign like a person of full age and capacity for the purpose of deciding liability and they were to be held liable for all the wrongdoings of their servants as well as for any breach of common law committed by them.
CONTEMPORARY POSITION IN INDIA:
As early as 1956, the Law Commission recognized the need to abandon Colonial distinctions and hold the State liable as a normal employer. Yet, decades later, India still lacks a dedicated legislation on State Liability. The closest recognition remains Article 300 of the Constitution, which provides little clarity on its actual scope and ambit[9].
Therefore, the Indian Judiciary has been proactive in this domain holding the government liable for wrongful acts committed by itself or through its servants. For fulfilling this purpose, the Supreme Court has bypassed its own Kasturi Lal verdict. This stance was reiterated in the case of N.Nagendra Rao & Co v. State of Andhra Pradesh[10]. When Fertilizer stock and other essential commodities seized by the vigilance cell deteriorated due to gross negligence, the Court did not excuse the liability of the Government. Instead, it was held that the Doctrine of Sovereign Immunity had no relevance in the present day, considering the recommendations of the Law Commission as well as the updated position in England.
Similar position has been reiterated by Courts at different instances. In another case of State of Gujarat v Memon Mahomed,[11] the Court held that the position of Government seizing goods is just like a Bailee, consequently holding them liable for failure to take reasonable care.
The present day position of Sovereign Immunity in India can be summarized by the following cases :
1.) Protection of goods in Custody- GRM Jewellers v. State of Andhra Pradesh[12]: GST Authorities seized silver from the Appellant. However, when ordered to produce it before the magistrate, it was found to have been stolen from the police custody. The High Court held Government liable to pay Compensation for the same.
2.) Violation of Right to Life- Onkar Vishwakarma v. State of Jharkhand[13]: This is a classic case of Sovereign Immunity vis-a-vis the Fundamental Rights of Citizens. The Subsidized Kerosene supplied by Government was found to be highly inflammable, resulting in several fire incidents and tragedies. Consequently, the Government was ordered to provide free treatment and compensation to the Victims.
CONCLUSION:
The Doctrine of Sovereign Immunity was born in an era where it was thought that the State is infallible and can do no wrong. Transplanted into India through colonial rule, it shielded the State even in cases of apparent injustice, as cases like Kasturi Lal painfully demonstrated. While England course-corrected through the Crown Proceedings Act, 1947, India’s reform has been largely court-driven, chipping away at the doctrine through development of Precedents. The judiciary has done its part, as reflected in the contemporary cases and issues after the changed stance of the Supreme Court in N. Nagendra Rao case. The King may no longer sit on the throne, but the question remains, has the State truly stopped acting like one?
REFERENCES:
[1] Viscount Canterbury v. Attorney General, (1842) 1 Ph 306 (Ch)
[2] Peninsular & Oriental Steam Navigation Co. v. Secretary of State for India, (1861) 5 Bom. HCR App. 1
[3] Union of India v. Harbans Singh, AIR 1959 Punjab 39
[4] State of Orissa v. Padmalochan, AIR 1975 Ori 41
[5] Rup Ram v. State of Punjab, AIR 1961 Punjab 336
[6] Kasturi Lal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039
[7] R.K. Bangia, Law of Torts (13th ed., Allahabad Law Agency 1997)
[8] Royster v. Cavey, (1947) KB 204
[9] R.K. Bangia, Law of Torts (13th ed., Allahabad Law Agency 1997)
[10] N. Nagendra Rao & Co. v. State of Andhra Pradesh, (1994) 6 SCC 205
[11] State of Gujarat v. Memon Mahomed, AIR 1967 SC 1885
[12] GRM Jewellers v. State of Andhra Pradesh, (2025) SCC OnLine AP 1234
[13] Onkar Vishwakarma v. State of Jharkhand, (2026) SCC OnLine Jhar 1456