A comprehensive guide to civil sovereign immunity in India: from Austinian absolutism towards diminished applicability

Borthakur, Richa and Agarwal, Rishika (2020) A comprehensive guide to civil sovereign immunity in India: from Austinian absolutism towards diminished applicability. Pen Acclaims Journal, 12. pp. 1-16. ISSN 2581-5504

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The notion of the ‘King can do no wrong’ has existed since feudal times, taking a myriad of shapes and forms through the ages. The doctrine of sovereign immunity is based on dynamic conceptions of sovereignty which encompasses both absolutist and restrictionist theories. Through the process of colonialism, the doctrine has trickled down from England to its various colonies. Pre-Independence Indian Jurisprudence does not tell any different a story. On becoming independent, the Union of India adopted the doctrine but the courts have gradually albeit not consistently, worked on limiting the scope of the doctrine, to stay true to the democratic nature of the country. The journey of this doctrine within the Indian subcontinent has been interesting, to say the least. From the Law Commission of India first suggesting the futility of the doctrine, especially in context of a legal system within a modern welfare state, to the courts initially ignoring the doctrine to circumvent the ambiguous precedent set by them and then later dwindling between different approaches to restrict the potentially wide scope of this doctrine. The journey and evolution of this doctrine has been far from stagnant, and despite many re-definitions of this doctrine, there is still a need for change. There is a need to clearly demarcate the ambit of this doctrine, because a doctrine which grants the sovereign of a state immunity from being tried in its own courts can be exploited, and could lead to serious violations of the rights of the people of the country.

Item Type: Article
Keywords: Sovereign Immunity | Constitution of India | Law | India
Subjects: Social Sciences and humanities > Social Sciences > Social Sciences (General)
Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Gena Veineithem
Date Deposited: 26 Mar 2022 16:41
Last Modified: 26 Mar 2022 16:41
Official URL: http://www.penacclaims.com/wp-content/uploads/2020...
URI: https://pure.jgu.edu.in/id/eprint/1849


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