Sovereign and Non-Sovereign Functions

In one line

The State used to escape liability by saying that what its officers were doing could only be done by a State, and the courts have spent sixty years cutting that defence down to almost nothing.

In the words a student can write in an exam: the distinction between sovereign and non-sovereign functions determines whether the State is liable in tort for the acts of its servants. Functions which by their nature can be performed only by a sovereign, such as defence, the maintenance of armed forces, the making of peace or war, foreign affairs and the acquisition and retention of territory, attract immunity; functions which a private individual could equally perform, such as running a transport service, a factory or a hospital, do not. The distinction originated in the liability of the East India Company for its trading as distinct from its sovereign acts, was applied at its widest to statutory powers of arrest and seizure, and has since been confined to the primary and inalienable functions of the State, the Supreme Court itself observing that watertight compartmentalisation into sovereign and non-sovereign is unsound.

Where the distinction came from

The East India Company both traded and governed. When it was sued, the courts had to ask which capacity the act belonged to, and the rule that emerged was that the Company was liable for acts done in its commercial or trading capacity and not for acts done in the exercise of its sovereign powers.

That rule was carried into the Government of India Act 1858 and, by the chain traced in [Tortious Liability of the State], into Article 300(1) of the Constitution. So a distinction devised for a trading company that also governed is the one by which the liability of a modern welfare State is still measured.

The old test is usually put in the form: could a private individual have done this act? If yes, the function is non-sovereign and the State is liable; if only a sovereign could have done it, immunity applies.

The three cases, in order

The whole topic is the story of three decisions, and the answer to almost any question on it is these three in sequence.

Stage 1: the ordinary law applies

Facts. State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933. On 11 February 1952 the husband of the first respondent and father of the second was knocked down by a Government jeep car driven rashly and negligently by an employee of the State of Rajasthan, while the vehicle was being taken from the repair shop to the Collector's residence, and he died in hospital. The trial court decreed the suit ex parte against the driver but dismissed it against the State, holding that because the car was maintained for the use of the Collector in the discharge of his official duties, that alone absolved the State of vicarious liability, even though it was not being used for any State purpose at the time. The High Court decreed against the State as well.