Sovereign functions and state liability
⚖️ Sovereign Functions and State Liability
🏛️ 1. What Are Sovereign Functions?
Sovereign functions are those functions that a state performs in its sovereign capacity—i.e., as a government exercising law and order, defence, taxation, foreign relations, judicial power, etc.
✅ Examples of Sovereign Functions:
Police and law enforcement
Military and defence
Administration of justice
Foreign diplomacy
Taxation
These functions are non-commercial and non-delegable — they can only be performed by the state, not private parties.
⚠️ 2. What Is State Liability?
State Liability refers to the responsibility of the government for wrongs (torts or breaches) committed by its servants during the course of employment.
🔍 Two Types of Functions:
Sovereign Functions – No liability for acts done in these areas (traditionally).
Non-Sovereign Functions – State is liable for torts of employees (like running railways, hospitals, transport, etc.)
⚖️ Legal Basis:
Article 300 of the Constitution: The Union and the States can sue or be sued in the same manner as the Dominion of India or the Provinces could before the Constitution came into force.
Based on Crown Proceedings under the Government of India Act, 1935.
🔍 Why the Distinction Matters:
If an action is sovereign, the state is immune from civil liability. If it is non-sovereign, the state can be sued for damages.
📚 Detailed Case Law Explanation
1. P & O Steam Navigation Co. v. Secretary of State for India (1861)
Bombay High Court
Facts:
Employees of the government damaged property belonging to a British company while carrying cargo. The company sued the colonial government.
Held:
The Court distinguished between sovereign and non-sovereign functions. Since the act (carrying cargo) was a commercial activity, the government was held liable.
Principle:
If the act is done in a non-sovereign capacity, the state can be held liable for torts of its employees.
Significance:
This is the first and foundational case establishing the doctrine of limited liability of the State in India.
2. Kasturilal Ralia Ram Jain v. State of U.P. (1965) AIR 1039
Supreme Court
Facts:
Police officers seized gold from a person during arrest but misappropriated it. The person sued the State for recovery of value.
Held:
The act was held to be a sovereign function (seizure by police), and hence the State was not liable for the tort committed by its employees.
Principle:
When the act is committed in the exercise of sovereign power, the State enjoys immunity from tortious liability.
Significance:
This decision affirmed the sovereign immunity doctrine but has been criticized for denying justice to victims of state action.
3. State of Rajasthan v. Vidyawati (1962) AIR 933
Supreme Court
Facts:
A government jeep, driven by a negligent driver employed by the state, hit and killed a pedestrian. The victim's family sued the State.
Held:
The Court ruled that maintaining and using a vehicle by the government is a non-sovereign function, so the State was liable for negligence.
Principle:
State is not immune when its employee commits a tort in a non-sovereign function.
Significance:
This case marked a departure from the colonial immunity doctrine and leaned towards state accountability.
4. Nilabati Behera v. State of Orissa (1993) 2 SCC 746
Supreme Court
Facts:
The petitioner’s son died in police custody. The State claimed immunity under sovereign function.
Held:
The Court held the State liable for violation of fundamental rights (Article 21 – right to life). It awarded compensation.
Principle:
When there is violation of fundamental rights, sovereign immunity cannot be a defence. The Court recognized constitutional tort liability.
Significance:
This case signified a shift from common law torts to constitutional accountability, especially in custodial deaths and police brutality.
5. Common Cause v. Union of India (1999) 6 SCC 667
Supreme Court
Facts:
Government failed to prevent illegal petrol pump allotments by its officials. PIL was filed alleging state’s failure and demand for accountability.
Held:
The Court stressed that the government cannot act arbitrarily even in sovereign matters and is liable for its officers' corrupt actions.
Principle:
No immunity for the State where misuse of power is proven. The public trust doctrine applies.
Significance:
Established that accountability and transparency are overriding principles, limiting sovereign immunity.
📊 Summary Table: Case Laws on State Liability and Sovereign Functions
| Case | Act Involved | Sovereign Function? | Liability? | Key Principle |
|---|---|---|---|---|
| P & O Steam Navigation (1861) | Cargo transport | ❌ No | ✅ Yes | Non-sovereign → liable |
| Kasturilal v. State of U.P. (1965) | Police seizure | ✅ Yes | ❌ No | Sovereign → immune |
| Vidyawati (1962) | Road accident by govt jeep | ❌ No | ✅ Yes | Non-sovereign → liable |
| Nilabati Behera (1993) | Custodial death | ✅ But FR violated | ✅ Yes | FR violation → liability |
| Common Cause (1999) | Illegal allotments | ✅ But arbitrary | ✅ Yes | Sovereign power ≠ immunity if abused |
✅ Conclusion:
The distinction between sovereign and non-sovereign functions determines state liability in tort.
Courts are increasingly recognizing constitutional torts—i.e., state liability for violation of fundamental rights, irrespective of sovereign immunity.
Modern trend: Accountability and citizen-centric governance override blanket immunity.
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