Rex Non-Potest Peccare: Doctrine of Sovereign Immunity

Rex Non-Potest Peccare: Doctrine of Sovereign Immunity

Author– Smruthi.A.Y, a Student of Ramaiah college of Law


Sovereign immunity is essentially “A government’s immunity from being sued in its own courts without its consent.” Sovereign immunity has been enshrined under the British Common Law principle of rex non potest peccare i.e. the king can do no wrong. In the England the growth of doctrine of sovereign immunity has been influenced by the immunity of local sovereign. Sovereign immunity was a concept which got embedded in Indian legal system with the arrival of the British. When the British colonized India, they brought along themselves new ideas, ideologies, culture and laws. One of new introductions to our nation was the Doctrine of Sovereign Immunity.  


The “king can do no wrong” is a legal maxim that denotes that the King is above the law. This principle is an indication of the sovereign’s absolute power by which he cannot be compelled to do any act that he does not please. Although this principle is not applied in modern judiciaries, it is relevant to constitutional monarchies. 

Sovereign immunity was originated in England in the year 1788 in the case of Russell v/s inhabitants of Devon in this case a British plaintiff sued his own town to recover some damages done to his wagon by a bridge that was in the need of repairs in this case the court held that the town was not liable in part because it was better that an individual should suffer any injury than that of the public should suffer an  inconvenience. 

The maxim has two meanings that can be explained as follows: 

  1. The ruler is independent of the jurisdiction. 
  2. Right of the crown extends not to do any injury for the benefit of the people. 

Provision in Constitution of India: 

Indian courts upheld the idea of Sovereign immunity from 19th century until recently. Claims for the damages were brought before the courts and was rejected by the concept that did not seem to have any application and there were calls for revision. The Indian courts limited the scope of sovereign power so the true victims could obtain compensation. 

Article 300 of Indian Constitution states: 

1. The government of India can be sued in the name of Union of India and the Government of the state can be sued by the name of state.  

2. If at the commencement of the constitution if any legal proceedings to which the dominion of India is party then the union of India shall be deemed and for any legal proceedings to which Indian state is a party then the state shall be deemed for the proceedings. 

Application of sovereign immunity in modern society: 

The primary application of sovereign immunity is to shield the government from legal actions that could impede their ability to govern effectively. This protection is given to both federal and state government. This immunity enables government to act boldly in the pursuit of public interest such as crafting policies, enforcing laws and engaging in diplomatic relations and legal disputes. 

Under foreign relations it serves as cornerstone of diplomatic interactions. It ensures that a country’s leaders and representatives engage in negotiations and international affairs without the constant threat of legal repercussions. The immunity is reciprocal, fostering a sense of trust among nations and prompting open communication without the fear of being subjected to legal actions in foreign jurisdiction. 

Sovereign immunity has found application in protecting the financial stability of government by shielding public resources from legal claims. This aspect is crucial during times of economic uncertainty when government needs the flexibility to allocate resources efficiently without the burden of extensive legal battles. 

In realm public administration it is instrumental in maintaining the functioning of government agencies without the protection of legal consequences which might hinder decision making within these organizations. 

It is essential to recognize that sovereign immunity is not absolute many jurisdictions have carved out exceptions allowing legal actions against the government under specific circumstances. In cases of constitutional violation certain civil rights abuses or contractual disputes government can be held accountable. 

Implications of sovereign immunity: 

Sovereign immunity is rooted in the idea that the state as an embodiment of the public interest should be protected from legal actions that may hinder its ability to govern effectively. This principle has historical and practical underpinnings: The medieval England when the king could not be sued without his consent and in the Modern Times sovereign immunity extends to government at different levels that is federal, state and foreign sovereign.

The implication of sovereign immunity is the limited recourse available to individuals seeking legal remedies against the government. Some jurisdictions have established mechanisms for citizens to sue the government under specific circumstances this limitation is particularly evident in cases involving government officials alleged misconduct or negligence.

Despite its protective nature, sovereign immunity is not absolute. Many jurisdictions have recognized exceptions to this principle, allowing legal actions against the government under specific circumstances. For example, waiver of immunity can occur when a government consents to being sued or when it engages in commercial activities unrelated to its sovereign functions.

The implications of sovereign immunity also extend to the evolving landscape of human rights and accountability. As awareness of global issues grows, there is an ongoing debate about whether sovereign immunity should be relaxed or limited in cases involving serious human rights violations. Striking a balance between respecting a state’s autonomy and holding it accountable for egregious actions is a complex challenge facing the international community.

Limitations of sovereign immunity: 

One significant limitation is the waiver of sovereign immunity. Governments may choose to waive their immunity voluntarily, allowing individuals or entities to bring legal actions against them. This waiver can be explicit or implied, arising from the government’s actions or participation in specific activities. For example, when a government engages in commercial transactions or contracts, it may consent to be sued for disputes related to those agreements, effectively waiving its immunity.

Another limitation involves actions based on statutory exceptions. Many jurisdictions have enacted laws that carve out exceptions to sovereign immunity for specific types of claims. These exceptions vary but often include cases involving contractual disputes, property damage, or personal injuries caused by the government’s negligence. These statutory waivers recognize that accountability is crucial in certain situations, balancing the need to protect the government with the interests of justice.

The concept of sovereign immunity is often subject to international law limitations. While states generally enjoy immunity in their domestic jurisdictions, this immunity may be waived or restricted in certain international contexts. Treaties and agreements may impose obligations on states to resolve disputes through alternative mechanisms, allowing individuals to seek recourse on an international level.

It is important to note that the limitations of sovereign immunity may vary across jurisdictions, as legal systems differ in their approach to this doctrine. Some countries may have more restrictive or expansive views on sovereign immunity, reflecting the unique legal traditions and principles within each jurisdiction.                                                                                                           

In conclusion, while sovereign immunity provides a crucial shield for governments, it is not absolute. The doctrine is subject to limitations through waivers, statutory exceptions, accountability for ultra vires actions, personal liability of officials, and international considerations. These limitations strike a balance between protecting the government’s interests and ensuring accountability and justice in specific circumstances.


In the case of P & O steam navigation company v/s secretary of State this case provided the first evidence of the doctrine’s applicability in India. In this case the plaintiff was traveling to Calcutta by road and was involved in an accident which was brought by the government employees’ carelessness the plaintiff sued the secretary of State for damages related to the accident the court determined that because the irresponsible act was not carried out in the performance of a sovereign rule the secretary of state was responsible for the losses.

In the case of secretary of State v/s Hari Bhanji the salt was being transported between Bombay and Madras and the rate of duty on salt increased and the merchant was required to pay the difference at the final port of destination he made the payment against his will and filed a lawsuit to get his money back. The fact that an act is carried out in the exercise of a sovereign function and is not one that could possibly carry out by a private individual does not disqualify it from being justified according to the court which denied the existence of any distinction between sovereign and non-sovereign function. 

In the case of Nobin Chunder Dey v/s secretary of State the plaintiff claimed damages after he wrongfully denied a license to sell certain liquors and drugs which led to the closure of his business. the Calcutta High court rejected this claim on the grounds that denying a license is a sovereign function that is exempt from the state’s tortious liability.

In the case of Kasturi Lal v/s state of UP a  partner of Amritsar based jewels Kasturika Ralia Ram Jain had come to Meerut to sell gold and silver but was detained by the police on the suspicion of having stolen property the following day he was released but the property was retrieved from his possession. The head constable in charge had stolen the gold and escaped to Pakistan while the silver was return to him the company filed a suit against the state of UP.                                                                                                                                                                           The apex court ruled that even if the employee’s negligence occurred while they were working for the state the claim against it could not stand since the employment was within a category that qualified for a special status of a sovereign power.                                                                                                                                                                    The supreme court in this judgement distinguished between sovereign and non-sovereign activities of the state and found that misuse of police power is a sovereign act and hence the state is not accountable.

In the case of Peoples union for democratic rights v/s state of Bihar around 600 to 700 peasants and landless persons had assembled for a peaceful meeting without any previous warning by the police the SP surrounded the gathering and open fired as a result of which around 21 persons including children died and many were injured the peoples union for democratic rights filed an application before the supreme court.                                                                                                                                                             It was held by the supreme court that the state should pay a compensation of rupees 20000 for every case of  death and rupees 5000 for every injured person. 


The concept of “The king can do no wrong” reflects a historical belief in absolute monarchies, where the ruler was considered infallible. This notion aimed to maintain stability and discourage dissent. However, as societies evolved, the idea faced challenges, giving way to constitutional principles and the rule of law. Today, the phrase serves as a reminder of the shift towards accountable governance, emphasizing that even the highest authority should be subject to legal scrutiny. The evolution of this concept reflects the broader journey from absolute rule to more democratic and just systems of governance.  

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