Sovereign immunity is a common-law doctrine which originated in the court decisions while deciding whether the State can be held liable for any wrong which may have been committed by any individual working for it during his/her course of employment.
Initially, this doctrine was based on the maxim of “rex non potest peccare” which means that the “king can commit no wrong” and hence provided as way of escape to the State to not be held liable for the wrongs committed under its name.
Over the years, this rule of ‘king can do no wrong’ has been abolished, not just from where it developed but in its application everywhere, because of the realisation that there were many instances where people who were wronged or suffered in some way or the other, because of certain acts done by the individuals employed by the State to perform its own functions, were being deprived of their right to seek justice.
The concept of sovereign community has been devised from two aspects-
Both these aspects have been taken from the Crown Proceedings Act, 1947 which was very well prevalent in England. The provisions of this act, especially with regards to the sovereignty of the State in such matters have been applied differently in varied cases, thus highlighting the differentiation between sovereign and non-sovereign functions and how these functions have been interpreted by the Courts over the years.
SOVEREIGN AND NON-SOVEREIGN FUNCTIONS-
A sovereign function can be described as a function which is exclusively performed by the government under sovereign powers of the State or refers to functions authorised by a statute.
Non-sovereign functions on the other hand include those functions or acts which are performed by private entities as well.
After the implementation of the Constitution, post independence, the first major case that came before the Supreme Court, with respect to the application of sovereign immunity, was that of State of Rajasthan v. Vidhyawati.
In the given case, a driver was driving the Collector’s jeep from the repair workshop back to the Collector’s residence for his use, and on his way, hit a pedestrian thus causing severe injuries. As a result, claim for damages were filed in the court of law against the State of Rajasthan.
The court followed the decision laid down in P&O Steam navigation company, in order to determine the liability of the tortious act of the servant upon the state government, however, did not mention or comment anything about the application of sovereign immunity since it was not clearly determined as to whether or not driving the jeep would fall under the category of performing sovereign functions.
As a result, the court held that it is important to differentiate between the exercise of sovereign power and the delegation of sovereign power.
