WHAT IS SOVEREIGN IMMUNITY?
Sovereign immunity, or state immunity, is a principle of customary international law, by virtue of which one sovereign state cannot be sued before the courts of another sovereign state without its consent. Put in another way, a sovereign state is exempt from the jurisdiction of foreign national courts. Thus, the question of immunity is at the same time a question of jurisdiction: only when the court already has jurisdiction will it become meaningful to speak of immunity or exemption from it. For this reason, sovereign immunity is also referred to as “jurisdictional immunity” or “immunity from jurisdiction.” Because different types of legal proceedings may be brought against foreign states, sometimes courts find it necessary to refer to jurisdictional immunities of states. In history, the words “ex-territoriality” and “extra-territoriality” were also used in this sense. The current law of state immunity has developed predominantly as a result of cases decided by national courts in legal proceedings against foreign states. Doctrinal debates among the scholars are of much later occurrence and consist mainly of comments on decided cases. The fact that the law of state immunity is primarily judge-made law gives judicial decisions a prominent position among the possible sources of international law as contemplated by Article 38 (1) of the Statute of the International Court of Justice; instead of being a “subsidiary means for the determination of rules of law,” they are now a main source of legal rules. This feature of the law also shapes and determines the contours of a research guide on sovereign immunity.
Sovereign immunity always had two dimensions – a national and an international one. So far, the international community has witnessed several attempts to codify the law on sovereign immunity, but until now only the European Convention on State Immunity (ECSI) has entered into force.1 However, even this Convention has received only eight ratifications since 1972, with Germany having been the last state to ratify it in 1990.2 The United Nations have, of course, also worked on the matter – for several decades. Still, since its adoption in December 2004, the UN Convention on Jurisdictional Immunities of States (UNCJIS) has not been ratified by enough states in order to become effective.3
Parallel to these efforts on the international level, some states enacted national legislation on sovereign immunity, most importantly the US Foreign Sovereign Immunity Act (FSIA).4 Other states include the UK, Australia, Canada, and South Africa.5 States, for whatever reason has forgone the opportunity to pass national legislation rely on international custom to determine the scope of immunity which foreign states might claim. In doing so, most states – or, to be more precise, their courts — assume that sovereign immunity serves as the basic rule until the existence of an exception has been proven.6
To conclude, in constitutional monarchies the sovereign is the historical origin of the authority which creates the courts. Thus the courts had no power to compel the sovereign to be bound by them as they were created by the sovereign for the protection of his or her subjects.
DOCTRINE OF SOVEREIGN IMMUNITY IN INDIA
The doctrine of sovereign immunity evolved from common law jurisprudence existed in United Kingdom based on commonly followed notion that ‘King can do no wrong’, the legal maxim for which is ‘rex non potest peccare’. The British rule in India had brought the ideologies, laws and culture of such nature within the country.
There are typically two forms of sovereign immunity- Immunity to Jurisdiction, which implies that one state government’s authority or an official if commits wrong in any other state, the state cannot be tried for that matter, hence, state courts do not have jurisdiction over another state. Another form is Immunity from Execution, wherein it would be improper for one state to seize any property of another state. However, both the immunities can be waived by the State themselves. The judicial trend for doctrine of sovereign immunity could be divided into Pre and Post Constitution era in India.
The doctrine was established for the first time in case of P&O Steam Navigation Company v. Secretary of State (5 Bom HCR App 1), Peacock C.J. classified ‘sovereign’ and ‘non-sovereign’ power and two-fold character of East India Company as sovereign power and trading company and interpreted Government of India Act, 1858. Whereas, in Secretary of State v. Hari Bhanji ( (1882) ILR 5 Mad. 273) the court took contrasting view and denied any distinction of sovereign and non-sovereign functions along with extending non-liability of Government for acts related to public safety. These cases were considered as Precedents, but still there was an ongoing judicial battle on distinction between sovereign and non-sovereign.
INTERSECTION OF CONSTITUTION AND JUDICIAL DECISIONS
Post enactment of constitution, there was resentment and filing of review petitions in courts by aggrieved petitioners for genuine damages, leading with a liberal and constitutional requisite, the Indian courts sway away from the ancient doctrine and narrowed the scope providing rightful justice and damages to the victims.
Article 300 of the Indian Constitution can be considered the torchbearer for eliminating the doctrine of sovereign immunity as it clearly laid down that Government of India as well as State may sue or can be sued along with pertinent description and applicability. In State of Rajasthan v. Vidyawati (AIR 1962 SC 933), the apex court first time dealt with the sovereign immunity post-constitution and laid down that in modern times, the State have social and welfare responsibilities and hence, required to function on constitutional norms and not invoke the defense of old feudal laws. Additionally, in Kasturi Lal Ralia v. State of UP (AIR 1965 SC 1039), SC took a view protecting the State from liability of torts committed by the servants within their statutory power, herein, in our view the court applied sovereign immunity partially to not let State suffer with undue litigations and damages.
INTERPLAY BETWEEN HUMAN RIGHTS AND SOVEREIGN IMMUNITY
In the 1996 case, D.K. Basu v. State of West Bengal, the Supreme Court held, “for the violation of the fundamental right to life or the basic human rights… this Court has taken the view that the defense of sovereign immunity is not available to the State… for the established violation of the rights guaranteed by Article 21 of the Constitution of India.” Compensation awards and determinations that a lawsuit contains a breach of a constitutional right, rendering sovereign immunity inapplicable, are always rulings taken at the discretion of individual judges. “Courts often reject compensation lawsuits in fundamental rights cases,” according to SAHRDC. Apart from the lack of mandatory payments, de facto and de jure protection remains an external hurdle, limiting survivor reparation and allowing human rights violations to occur across India.
Internationally, the concept of sovereign protection has become a significant contributor to the most appalling condition of human rights enforcement. The ICJ ruled that Italy infringed on international law by granting Germany sovereign immunity from domestic sovereignty in the case of Jurisdictional Immunities of the State (Germany v. Italy). Germany has been accused of violating international humanitarian law and fundamental human rights. According to this principle, when a state violates secured human rights norms that are called peremptory international law norms, such as jus cogens, the state’s jurisdictional protection is not protected. The fundamental principles of international humanitarian law, the prohibition of torture and genocide, the right of self-determination, and the prohibition of violence are all examples of jus cogens. The principle argues that international law grants immunity to a state in cases of human rights abuses. According to this theory, sovereign immunity is not a jus cogens norm, and therefore ranks lower in the order than all other jus cogens principles. The International Law Commission (ILC) gave an example of a list on which the prohibition of crimes against humanity was considered a jus cogens. In order to correct human rights abuses, normative hierarchy theory states that the maintenance of jus cogens norms takes precedence over all concepts of international law. In his book Enhancing Global Human Rights, R. Falk mentions that the principle of non-intervention does not apply in situations of violation of human rights norms is well-established rule of law. For example, in Nada v. SSEAs, the Swiss Federal Court recognized fundamental human rights as jus cogens norms. Similarly, All states are required by Article 6 of the International Covenant on Civil and Political Rights (ICCPR) and Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) to accept the non-derogable right of everybody to the highest level of health and to take all reasonable precautions to contain and avoid epidemics, endemics, and pandemics. Sovereign immunity is not a protection that prevents the international community from taking civil action against human rights violations. The Soviet Union dropped its claim to exclusive jurisdiction at the Conference on Security and Cooperation in Europe and instead engaged in a meaningful discussion about the issues at hand in Belgrade.
However in Indian context in many a cases it is seen quite in contrast, In an otherwise excellent order by the Allahabad High Court on 1 September 2020, awarded no compensation was given to Dr Kafeel Khan for his unjustified detention. The court granted him bail and declared his detention under the National Security Act as illegal. He was arrested by the Uttar Pradesh government, which said he gave a hate speech inciting people to hate each other and inciting students on the basis of religion. Dr. Khan had instead issued a call for national integrity and reconciliation, as well as a condemnation of terror, according to the ruling. After months in prison for an offence he did not commit, he received no remuneration.
The doctrine is a torch bearer of an ancient principle, the requirement of which has been diminished in the modern contemporary world. The harmonious contrition of international and state laws along with judicial precedents on sovereign immunity have taken into account the essence of social protection by protecting human rights and eliminated the draconian aspect of complete immunity to sovereign states.
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SC Collegium Recommends elevation of Justice Prasanna B. Varale as Karnataka HC Chief Justice; Recommends New CJs For Orissa, J&K
The Supreme Court Collegium has recommended elevation of Justice Prasanna B. Varale, Bombay High Court Judge as the Chief Justice of Karnataka High Court.
Justice Prasanna B. Varale was born on 23rd June, 1962 and enrolled as an Advocate on 12th August, 1985. He also served as a lecturer in Law at Ambedkar Law College, Aurangabad from 1990 to 1992 and as the Assistant Government Pleader and Additional Public Prosecutor, High Court Bench at Aurangabad and also as an Additional Standing Counsel for Union of India.
On July, 18., he was elevated to the bench at Bombay High Court.
The Supreme Court Collegium also recommended to elevate of Orissa High Court Judge, Justice Jaswant Singh, as its Chief Justice.
Justice Singh was February 23, 1961 and was enrolled as an Advocate in 1986 in Haryana. In April 1988, he moved to Chandigarh and held the posts of Assistant Advocate General, Deputy Advocate General, Senior Deputy Advocate General and Additional Advocate General, in the office of Advocate General, Haryana, since March 1991.
On December 5, 2007., he was elevated as a Judge of Punjab and Haryana High Court and on 8th October, 2021., he was transferred to the Orissa High Court.
The Collegium also J&K High Court’s Judge, Justice Ali Mohammad Magrey to take charge as the Chief Justice.
Justice Magrey was born on 8th December, 1960 and enrolled as Advocate in the year 1984. However, he remained as standing counsel from 1986 onwards for various State instrumentalities and was appointed as Additional Advocate General in February, 2003. In September 2009, he was appointed as Senior Additional Advocate General.
On 8th March, 2013., he was appointed as Permanent Judge of the Jammu and Kashmir High Court.
Supreme Court Collegium Recommends Transfer Of 3 Judges To Bombay, Jharkhand & Tripura High Courts
The Supreme Court Collegium has recommended transfer of three Judges in its meeting held on 28th September, 2022 in the following manner:
The transfer of Justice Sanjaya Kumar Mishra from Uttarakhand High Court to Jharkhand High Court
Justice Mishra was born on December 29, 1961 and has obtained his LL.B. degree in 1987 and in February 1999 joined as Additional District & Sessions Judge. However, he worked as District & Sessions Judge, Sundergarh, Dhenkanal, Special Judge (CBI), Bhubaneswar and has joined as Registrar General of Orissa High Court.
On October 7, 2009., he was elevated as Judge of the Orissa High Court and was transferred to the Uttarakhand High Court on October 11, 2021. Between December 24, 2021 and June 28, 2022, he served as the Acting Chief Justice of Uttarakhand High Court.
The transfer of Justice K. Vinod Chandran from the Kerala High Court to Bombay High Court
Justice K. Vinod Chandran was born on April 25, 1963 and has started his law practice in 1991. Also, he served as a Special Government Pleader (Taxes) of the Government of Kerala from 2007 to 2011. In November 2011, he was sworn-in as Additional Judge of Kerala High Court and was appointed as a Permanent Judge with effect from June 24, 2013.
The transfer of Justice Aparesh Kumar Singh from Jharkhand High Court to Tripura High Court
Justice Singh was born on 7th July, 1965 and got enrolled as an advocate at Patna in 1990. On 24th January, 2012., he was elevated as an Additional Judge of Jharkhand High Court and was confirmed as permanent Judge on 16th January, 2014. Presently, he is holding an additional charge as Executive Chairman of Jharkhand State Legal Services Authority.
Kerala High Court Directs Union Health Ministry And Department of Pharmaceuticals To File Response: Patents On Life Saving Drugs
The Kerala High Court while taking serious note in the case XXX v. Union of India of the unaffordability of a life-saving patented medicine for breast cancer, the Court directed a competent officer of the union health ministry and the department of pharmaceuticals for filing their response on the issue within a month.
A direction has been issued by the Court after noting that the matter had to be taken up at the higher level.
The bench of Justice V.G. Arun observed and has warned that if the counter is not filed within the stipulated time, the court would be constrained to proceed with the case based on the “uncontroverted averments in the writ”.
During the hearing, the counsel appearing on behalf of the Department for Promotion of Industry and Internal Trade (DPIIT) and the Controller General of Patents, Patent Department, Standing Counsel T.C. Krishna submitted that the situation to invoke Sections 92 and 100 for compulsory license of the patented drug as sought for in the petition and was not prevalent as of present.
Further, it was asked by the counsel that how far the court could interfere in this case, since the plea had sought that the drug be made available at a reasonable price. Adding to it, he questioned that weather the Court could suggest what a ‘reasonable price’ would be to the government.
In response to the question, it was clarified by advocate Rahul Bajaj that cancer was not part of the list of the notifiable diseases list issued by the Central Government.
The Amicus Curiae, Advocate Maitreyi Sachidananda Hegde submitted that the authority to take decision under Section 92 or Section 100 of the Patent Act ought to be of the Joint Secretary level as the Assistant Patent Officer could not decide whether the issue falls within the government realm or not.
It was also argued by the Amicus that the legal question which has been raised could be decided by the Court.
Further, it was submitted by Amicus that the counter Affidavit that had been submitted by DPIIT and Patent Department suffered from certain drawbacks for not addressing whether reasonable discretion had indeed been exercised in the instant case or not.
The Counsel appearing for the respondent refused while stating that the government has to take the decision in this regard, before the Patent Department could go ahead with compulsory licensing or any other such measure.
Representing an intervenor, Advocate Bajaj pointed out that the right to health in Indian and International spectrum includes within its ambit the right to life-saving medicines, as well. Hence, it was submitted by the counsel that the issue could not merely be looked into from a policy lens alone, but that it is a rights-based issue in itself.
The Court on 16.09.2022., had taken a suo motto cognizance of the issue of unaffordability of patented life-saving medicines, in light of the death of the petitioner who had espoused this cause having not been able to afford the Ribociclib drug for the treatment of her breast cancer.
Accordingly, the court posted the case for the next hearing on 2nd November 2022.
Allahabad high court: Not mandatory to summon lower court record before deciding state’s plea for grant of leave u/s 378(3) crpc
The Allahabad High Court in the case State of U.P. v. Vakil S/O Babu Khan observed and has held that it is not mandatory for the High Court to summon the lower court record in every case before deciding the State Government’s application for grant of leave to appeal against an acquittal order as provided under Section 378(3) Cr.P.C.
It stated that section 378 Cr.P.C. provides for filing of appeal in case of acquittal by the State and sub-section 3 of Section 378 Cr.P.C. contemplates for grant of leave for the entertainment of such appeals filled.
The bench comprising of Justice Ashwani Kumar Mishra and Justice Shiv Shanker Prasad observed and has stated that it is for the High Court to decide on the basis of the facts and circumstances of each case that whether the application filled for grant of leave requires the perusal of the lower court records or not.
However, the court was of the view that though the right of the appellate court to summon the lower court record in an appropriate matter always subsists and it is not necessary for the High Court to call for the lower court records for consideration of an application under Section 378(3) Cr.P.C., in every case or as a matter of routine.
The Court also referred to the Apex Court’s ruling in the case of State of Maharastra Vs. Sujay Mangesh Poyarekar (2008) 9 SCC 475, wherein it was observed that the High Court while exercising the power to grant or refuse leave must apply its mind and considering where a prima facie case has been made out or arguable points have been raised and not whether the order of an acquittal would or would not be set aside.
It was observed that the court also took into account sub-section 2 of Section 384 Cr.P.C. which provides that before dismissing an appeal, summarily, the Court may call up for the record of the case. Thus, the court noted that non-summoning of the lower court records in an appeal against conviction is not fatal and that the use of the expression ‘may’ in sub-section (2) clearly suggests that the power to summon the record is only an enabling provision and as shall it is not to be read.
Further, the court stressed that every appeal is not required to be admitted inasmuch as leave must not necessarily be granted in every matter and the exercise of power in that regard is dependent before the Court upon a prima facie assessment of the material placed so as to ascertain whether the appeal raises arguable points or not.
Subsequently, the Court came to the conclusion that it is not mandatory for the High Court to summon the lower court record in every case before deciding the application for grant of leave under Section 378(3) Cr.P.C.
It was added by the court that the right of the appellate court to summon the lower court record in an appropriate matter always subsists and It is for the High Court to decide on the basis of the facts and circumstances of each case that whether the application for grant of leave requires the perusal of the lower court records or not.
All women, married or unmarried, entitled to safe and legal abortion: SC
In a landmark judgement this week, the Supreme Court held that all women are entitled to a safe and legal abortion. A bench headed by Justice D.Y. Chandrachud said that the meaning of rape must include marital rape for the Medical Termination of Pregnancy Act.
The Supreme Court said that the distinction between married and unmarried women for the purposes of the MTP Act is “artificial and constitutionally unsustainable” and perpetuates the stereotype that only married women indulge in sexual activities.
The rights of reproductive autonomy give similar rights to unmarried women as those to married women, the bench held.
Insisting on a “forward-looking” approach, the Supreme Court on 7 August opined that any discrimination between married and unmarried women in respect of the medical termination of pregnancy law in India that does not allow a single woman to go for an abortion after 20 weeks violates her personal autonomy.
The top court had said that it would interpret the Medical Termination of Pregnancy (MTP) Act and the related rules to see if unmarried women could be allowed to abort up to a 24-week pregnancy on medical advice.
The upper limit for the termination of pregnancy is 24 weeks for married women, with special categories including survivors of rape and other vulnerable women such as the differently-abled and minors; the corresponding window for unmarried women in consensual relationships is 20 weeks.
SEBI v/s RIL : Review Petition Admitted
The present issue relates back to certain share transactions of RIL in 1994, whereby around 12 crore equity shares of RIL were “fraudulently” allotted to its promoters and group companies.
The Supreme Court in the case Securities and Exchange Board Of India vs. Reliance Industries Limited & Ors observed and has allowed for listing of the instant petition in open court.
The bench comprising of the Chief Justice Of India U.U. Lalit, Justice J.K. Maheshwari and the Justice HimaKohli observed while considering the facts and circumstances of the case and on the submissions made by the counsel in the review petition. The bench deemed it appropriate to allowe the application filled for the listing of the instant petition in open court.
Background of the Case:
The present issue relates back to certain share transactions of RIL in 1994, whereby around 12 crore equity shares of RIL were “fraudulently” allotted to its promoters and group companies. In 2020, a complaint was filled by S Gurmurthy, the regulatory initiated probe into the alleged irregularities. An opinion was sought by SEBI of former Supreme Court judge Justice BN Srikrishna twice and also the opinion of a Chartered Accountant named YH Malegam.
It was requested by the RBI for disclosure of these opinions and related internal documents. The RIL filed a writ petition before the Bombay High Court, when SEBI turned the request and the same was dismissed in February 2019.
A Criminal complaint was lodged by SEBI in 2020 before Special Judge, Mumbai against RIL alleging offences punishable under SEBI Act and Regulations. The same was rejected by the Court as time-barred. A revision petition was filled by the regulatory before the Bombay High Court challenging the dismissal of the complaint. However, in SEBI’s revision petition, RIL filed an interlocutory application seeking the disclosure of the documents. The High Court adjourned RIL’s application on March 28, 2022 by stating that it can be considered only along with the main revision petition. Therefore, this led to filling of the special leave petition before the Supreme Court.
On September 29, 2022., the matter was circulated in the Supreme Court. Accordingly, the court listed the review petition for next hearing on 12.10.2022.
Case Title: Securities and Exchange Board Of India vs. Reliance Industries Limited & Ors
Case No: W.P.(C) No. 250 of 2022 & W.P.(C) of 1167 of 2022.
Coram: Chief Justice Of India U.U. Lalit, Justice J.K. Maheshwari, Justice Hima Kohli
Date Of Order: 29th Day of September, 2022.
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