Act of State and Statutory Immunity

The examinable point is therefore the distinction: an act of State is about the relationship of sovereign to foreigner, whereas a sovereign function under Article 300 is about the nature of the function performed towards anybody, including a citizen. Students constantly merge them.

Statutory immunity

What it is

Many Acts contain a section, usually near the end, in one of these forms.

• "No suit, prosecution or other legal proceeding shall lie against the Government or any officer for anything which is in good faith done or intended to be done under this Act."
• "No court shall take cognizance of an offence under this Act except with the previous sanction of the Government."
• "No suit shall be instituted against the Government in respect of anything done under this Act after the expiry of six months."

The three are different in kind: the first is a bar on proceedings, the second a requirement of sanction, and the third a special limitation period. An answer should distinguish them.

Examples from this syllabus

The Acts studied in Module IV supply the illustrations, and citing one is worth doing.

• The Administrative Tribunals Act 1985, section 32, protects action taken in good faith.
• The Whistle Blowers Protection Act, section 24, provides that no suit, prosecution or other legal proceeding shall lie against the Competent Authority in respect of anything done in good faith, though the Act has never come into force: [Whistleblowers' Protection: the Act of 2014 and the PIDPI Resolution].
• The Prevention of Corruption Act 1988 requires previous approval before an investigation into an offence alleged to have been committed by a public servant in the discharge of official functions, inserted as section 17A by the amendment of 2018, and requires previous sanction for prosecution: [The Prevention of Corruption Act 1988].

How statutory immunity is construed

Four rules, and they are what an examiner is testing.

1. It is construed strictly. A provision taking away a citizen's remedy is read narrowly, and any ambiguity is resolved in favour of the remedy.

2. Good faith is the controlling condition. Where the section protects what is done "in good faith", it protects nothing done mala fide, for an improper purpose or without any application of mind. So an officer who acts arbitrarily cannot shelter behind it, and the grounds of review in [Grounds of Judicial Review: Abuse of Discretion] survive the immunity clause.

3. It protects acts "under the Act", not acts outside it. An officer who exceeds his powers is not acting under the Act at all, so the protection does not attach to acts that are ultra vires.

4. It cannot bar the constitutional remedies. A statutory provision cannot exclude the jurisdiction of the High Courts under Articles 226 and 227 or of the Supreme Court under Article 32. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, holds that jurisdiction to be part of the inviolable basic structure and that exclusion clauses in legislation under Articles 323A and 323B are unconstitutional to that extent. The same reasoning applies to any statutory bar.

Rule 4 is the most important, and it is what makes statutory immunity manageable: however widely drawn, it cannot shut the constitutional door.

Constitutional immunities and privileges

The syllabus lists these alongside act of State, so they belong here.

Article 361. The President and the Governors are not answerable to any court for the exercise and performance of the powers and duties of their office. No criminal proceedings may be instituted or continued against them while in office, no process for arrest or imprisonment may issue, and civil proceedings in respect of an act in a personal capacity require two months' prior notice. The immunity is personal and does not protect the action taken: the Government's order remains reviewable even though the Governor cannot be sued.

Articles 105 and 194. Members of Parliament and of the State legislatures have freedom of speech in the House and are not liable to any proceedings in any court in respect of anything said or any vote given in the House or a committee. This is the exception to Dicey's second meaning of equality before the law noted in [Rule of Law].

Article 300 is not an immunity at all, but the provision that makes the Government suable: [Tortious Liability of the State].

A worked example

Consider four claims against the State.

1. A foreign national's property in a territory newly acquired by India is taken over, and the Government refuses to recognise the title he held under the previous sovereign. A plea of act of State may be available, because he is not a subject, the act is an exercise of sovereign power over newly acquired territory, and the courts will not examine its legality until the rights are recognised.
2. An Indian citizen's property is taken over in the same territory. No act of State. The plea cannot be raised against a citizen, and the ordinary law and the constitutional guarantees apply.
3. A Tribunal member is sued for a decision he gave. Section 32 of the Administrative Tribunals Act 1985 protects action taken in good faith, and if the decision was given in good faith the suit is barred. If it is alleged that he acted mala fide or wholly outside his jurisdiction, the protection does not attach, because the act was neither in good faith nor under the Act.
4. A statute says no court shall question any order made under it, and an order is made without any hearing at all. The bar does not defeat a petition under Article 226. A statutory ouster cannot exclude the constitutional jurisdiction, which L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, holds to be part of the basic structure.

What it does NOT mean

It does not mean act of State can be pleaded against a citizen. It cannot, and this is the commonest error in the topic.

It does not mean a good faith clause protects everything an officer does. It protects what is done in good faith and under the Act; it protects neither mala fides nor excess of power.

It does not mean an ouster clause excludes the writ jurisdiction. It does not.

It does not mean Article 361 protects the government's decision. It protects the person of the President or Governor; the decision remains reviewable.

Quick revision

1. Act of State: an exercise of sovereign power against a person who is not a subject and owes no allegiance, done or adopted by the State, and not cognisable by municipal courts.
2. It cannot be pleaded against a citizen. Its historical field was the acquisition of territory and the non-recognition of pre-existing rights, and it ceases to apply once the rights are recognised.
3. Distinguish it from a sovereign function: act of State asks who the claimant is; sovereign function asks what function was performed.
4. Statutory immunity comes in three forms: a bar on suits and prosecutions for acts done in good faith; a requirement of previous sanction or approval; and a special limitation period.
5. It is construed strictly, is controlled by the requirement of good faith, protects only acts under the Act and not acts ultra vires, and cannot bar the constitutional remedies: L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
6. Constitutional immunities: Article 361 for the President and Governors, personal and not extending to the validity of the action; Articles 105 and 194 for members of the legislatures.

Test yourself

1. What is an act of State? Can it be pleaded against a citizen? An act of State is an exercise of sovereign power by a State against a person who is not its subject and owes it no allegiance, done by the State or afterwards ratified and adopted by it, which the municipal courts will not examine. Its historical field in India was the acquisition of territory, where the rights of the inhabitants under the former sovereign do not bind the new one until recognised, so that non-recognition is an act of State. It cannot be pleaded against a citizen. Once the persons concerned are subjects, or their rights have been recognised, the doctrine has no application and the ordinary law and the constitutional guarantees apply.

2. Distinguish an act of State from a sovereign function. An act of State concerns the relationship between the sovereign and a person who is not its subject, and the question is who the claimant is. A sovereign function concerns the nature of the function performed and may be pleaded against anybody, including a citizen; the question is whether the act belongs to the primary and inalienable functions of the State. An act of State derives from the law of nations received into Indian law and its modern scope is almost nothing; sovereign function derives from Article 300(1) and the pre-Constitution law and, though much narrowed, still operates. Merging the two is a common error.

3. What is statutory immunity, and how is it construed? It is a protection conferred by a particular Act, typically providing that no suit, prosecution or other legal proceeding shall lie against the Government or its officers for anything done or intended to be done in good faith under the Act, and sometimes taking the form of a requirement of previous sanction or of a shortened limitation period. It is construed strictly, because it takes away a citizen's remedy. It is controlled by the requirement of good faith, so it does not protect an act done mala fide, for an improper purpose or without application of mind. It protects only acts done under the Act, so it does not attach to acts that are ultra vires. And it cannot bar the constitutional remedies under Articles 32, 226 and 227.

4. Can a statute exclude the jurisdiction of the High Court over action taken under it? No. However widely an ouster or immunity clause is drawn, it cannot exclude the jurisdiction of the High Courts under Articles 226 and 227 or of the Supreme Court under Article 32. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, held that this jurisdiction is part of the inviolable basic structure of the Constitution, and that clause 2(d) of Article 323A, clause 3(d) of Article 323B and the exclusion of jurisdiction clauses in legislation made under those Articles are unconstitutional to the extent that they purport to exclude it. The same reasoning applies to a statutory bar on proceedings.

5. What immunities does the Constitution itself confer? Article 361 provides that the President and the Governors are not answerable to any court for the exercise and performance of the powers and duties of their office, that no criminal proceedings shall be instituted or continued against them while in office, that no process for their arrest or imprisonment shall issue, and that civil proceedings in respect of acts in a personal capacity require two months' prior notice. Articles 105 and 194 give members of Parliament and of the State legislatures freedom of speech in the House and immunity from proceedings in any court in respect of anything said or any vote given in the House or a committee. These are the express exceptions in India to Dicey's second meaning of the rule of law, and the immunity under Article 361 is personal: it protects the holder of the office, not the validity of the action taken, which remains open to review.