Sovereign Immunity After Common Cause v UOI: India's Vestigial Crown

The doctrine of sovereign immunity in India is held together by judicial reluctance to apply it and judicial reluctance to formally bury it. The Supreme Court has been trying to kill Kasturilal v State of Uttar Pradesh for sixty years. It has not succeeded, because no Indian legislature has done what Parliament in the United Kingdom did in 1947 and what Congress in the United States did in 1946: pass a statute that abolishes Crown immunity in tort and replaces it with a written rule. We have instead a doctrine whose only textual foundation is Article 300(2), which preserves the law as it stood at the moment of Independence. The law at that moment was Peninsular and Oriental Steam Navigation Co v Secretary of State for India, decided in 1868.¹ That is the law today. We have spent six decades pretending otherwise.

What Article 300 actually does

Article 300(1) of the Constitution provides that the Government of India and the Governments of the States may sue and be sued — subject to such provision as Parliament or a State Legislature may make. Article 300(2) preserves continuity: legal proceedings against the Dominion are continued against the Union, and the cases in which the Union may sue or be sued are 'the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.'

This is a holding pattern. The drafters of the Constitution did not write a substantive rule of state liability. They wrote a placeholder that pinned the law to its pre-1950 form until Parliament intervened. Parliament has not intervened. The 1956 First Report of the Law Commission, chaired by MC Setalvad, recommended legislation along the lines of the Hari Bhanji decisions.⁸ The Government (Liability in Tort) Bill 1967 was reported back to the Lok Sabha by the Joint Committee in 1969 and then went nowhere.⁹ Every subsequent decade has produced fresh judicial appeals for the legislature to act. Every decade the legislature has refused.

The result is that India is the only major common-law jurisdiction whose state-liability law still depends on what Peacock CJ said in a Bombay High Court bench in 1868 about whether a dockyard repair was a sovereign function. The United Kingdom passed the Crown Proceedings Act 1947 within two years of the Indian Constitution being adopted. The United States, despite the older and stronger common-law tradition of respondeat superior for the federal government, passed the Federal Tort Claims Act 1946 over a decade before Vidhyawati was decided. Indian commentators, including Neelanjan Maitra in the Oxford Handbook of the Indian Constitution, have noted this as a 'sly continuance of the ideology and practice of the empire.' That phrase is too kind. It implies design. What we have is drift.

Why the courts cannot fix this by ratio

The Supreme Court's career with sovereign immunity since 1962 reads like a record of a court trying to legislate by doctrinal interpretation, and failing each time it gets close. State of Rajasthan v Vidhyawati (1962) — a negligent-driving case involving a government jeep — held the State liable, but did so on the narrow ground that the jeep was not engaged in a sovereign function.¹⁰ Three years later, Kasturilal denied recovery for police negligence in the storage of seized gold, on the ground that the seizure was a sovereign power conferred by statute.² Gajendragadkar CJ wrote, in the same opinion, that the result was 'not a very satisfactory position in law' and that the legislature should pass a Crown Proceedings Act of its own. The Court was prepared to acknowledge that the doctrine it was applying was wrong. It was not prepared to overrule itself.

What followed was three decades of doctrinal manoeuvre. State of Gujarat v Memon Mahomed Haji Hasam (1967) reached a Kasturilal-like result on the opposite side by drawing a procedural distinction. Basavva Kom Dyamangouda Patil v State of Mysore (1977) reached the same result by simply not mentioning Kasturilal. The fundamental rights jurisprudence, beginning with Rudul Sah v State of Bihar (1983), bypassed Kasturilal altogether by reframing wrongful-detention claims under Article 32 as direct enforcement of Article 21 — a route in which sovereign immunity does not run.

Then came N Nagendra Rao & Co v State of Andhra Pradesh (1994), which did something the Court had refused to do for thirty years: it acknowledged the Hari Bhanji line of pre-Constitution act-of-State decisions and held that Kasturilal had been decided without the benefit of that line of authority. The opinion is a piece of belated scholarship. It tries to confine Kasturilal to the State's 'inalienable functions' — the maintenance of law and order, the administration of justice.⁵ As a division bench, Nagendra Rao could not overrule Kasturilal. It could only narrow it.

That should have settled the matter. It did not. Common Cause v Union of India (1999) blurred the distinction Nagendra Rao had drawn, treating the act-of-State doctrine and the sovereign-functions doctrine as if they were interchangeable concepts.⁶ A year later Chairman, Railway Board v Chandrima Das (2000) did worse: confronted with an argument the State had not raised, the Court invoked the sovereign-functions doctrine and ruled that 'the theory of Sovereign power which was propounded in Kasturilal's case has yielded to new theories and is no longer available in a welfare State.'⁷ The Court was right that Kasturilal had yielded. It was wrong about what it had yielded to. It is no answer to bad doctrine to declare its successor exists when no successor has been articulated.

The American example: a statute, not a doctrine

The Federal Tort Claims Act of 1946 took the United States from a regime in which the federal government enjoyed an English-style sovereign immunity to one in which 28 U.S.C. ss 1346(b) and 2674 declare that the United States 'shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances.'³ The FTCA preserved immunity for the discretionary-function exception, for combatant activities, for certain intentional torts. Those exceptions are written down. They are not the product of a five-judge bench guessing at what a 'sovereign function' might be.

The American statute did three things at once. It restored access to ordinary tort remedies. It created an enumerated list of carve-outs to which the new liability rule did not extend. And it routed federal tort claims through the federal district courts, removing them from the ad hoc petitionary jurisdiction that the U.S. Court of Claims had handled. None of these structural moves is available to an Indian court applying Article 300. Only the Indian Parliament can replace a judicially preserved 1868 rule with a statutory architecture.

The FTCA's design choices repay close attention because they map onto problems Indian courts have spent decades stumbling over. The discretionary-function exception, codified at 28 U.S.C. s 2680(a), preserves immunity for acts 'based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty.' Berkovitz v United States (1991) sharpened this further: the exception applies only where the act involves an element of judgment or choice and where that judgment is of the kind the exception was designed to shield. Indian courts have been struggling to draw an analogous line between 'inalienable sovereign function' and ordinary administrative action since Nagendra Rao. The American statute supplied the framework; the courts then refined it. In India the courts have been doing both jobs at once, with predictable results.

Equally important is what the FTCA does not do. It does not waive immunity for intentional torts by federal employees other than law-enforcement officers; it preserves the combatant-activities exception for the armed forces during wartime; it preserves immunity for claims arising in foreign countries. Each carve-out is the result of a deliberate legislative compromise. The Indian Supreme Court, in trying to manufacture analogous carve-outs through judicial doctrine, has produced rules like the 'maintenance of law and order is a sovereign function' line that runs from State of M.P. v Chironji Lal through to State of Madhya Pradesh v Shantibai. Those rules exist because no statute does the work of saying which torts the State remains immune from. Each new case produces a new line; no line is binding on the next.

The British example: a statute that did not survive on judicial reluctance

The British position is even more pointed. Until the Crown Proceedings Act 1947, the rule at common law was that the Crown could not be sued in tort, either for its own authorised wrongs or for the wrongs of its servants in the course of their employment. Canterbury (Viscount) v Att. Gen. (1842) said as much. Bainbridge v Postmaster General (1906) extended the rule to deny actions against heads of department for the wrongs of subordinates. The doctrine became unworkable as the Crown grew into the largest employer in Britain — the workaround was the Treasury Solicitor's practice of nominating defendants whom the Crown would then indemnify, with judgments satisfied 'as a matter of grace.' This was sovereign immunity dressed in the costume of nominal liability.

The Crown Proceedings Act 1947 ended that. Section 2(1) of the Act made the Crown liable for torts committed by its servants 'as if it were a person of full age and capacity.'⁴ Section 2(3) addressed the very issue that Kasturilal would settle the other way in 1965: where a tort is committed in the discharge of statutory functions, the liability of the Crown is the same as it would be if the function had been imposed by the Crown's own instructions. In other words: statutory authority is not a defence. In India, twenty years after Kasturilal, the same fact pattern still produces the same defence. We have built a forty-year jurisprudential ladder around a problem the British Parliament solved in a single sub-clause.

The British Act is also instructive in what it preserved. Acts of state in the international sense — declarations of war, treaties, dealings with foreign sovereigns — remain outside the scope of Crown liability. So do certain prerogative powers and certain matters relating to the armed forces. The list is exhaustive on the face of the statute. A British litigant in 2026 wishing to know whether the Crown can be sued for a particular kind of act consults the Crown Proceedings Act and reads. An Indian litigant in 2026 wishing to know the same thing consults Article 300, then Vidhyawati, then Kasturilal, then Nagendra Rao, then Common Cause, then Chandrima Das, and then, if she has reached the end of her tether, an article in the Oxford Handbook of the Indian Constitution warning her that no answer is fully reliable. That difference — between reading a statute and reconciling a half-century of doctrine — is the entire case for legislation.

The counter-argument, addressed honestly

The strongest defence of the present arrangement is that the Supreme Court has, in practice, neutered Kasturilal. The fundamental-rights jurisprudence built around Rudul Sah, Bhim Singh v State of J&K (1985), Nilabati Behera v State of Orissa (1993), Saheli v Commissioner of Police (1990), and D.K. Basu v State of West Bengal (1997) effectively allows any person wronged by State action to recover compensation through a writ petition under Article 32 or 226. The State does not get to plead sovereign immunity to a violation of Article 21. The High Court of Andhra Pradesh held this expressly in Challa Ramkonda Reddy v State of A.P. (1989) and the Supreme Court endorsed it in Nilabati Behera. For practical purposes, the defence has been read out of the field where it would do the most harm.

This is a real point. It has institutional force. A litigant whose son has been killed in police custody does not, in 2026, find herself stalled by Kasturilal in the way the appellant in Ram Ghulam v Govt of UP (1933) found herself stalled by P&O. She can file an Article 32 petition. She can get compensation as an interim measure. She can preserve her right to file a separate civil suit. The Supreme Court has built around the doctrine of sovereign immunity a parallel structure of constitutional remedy. The structure works.

But it works in a particular way and at a particular price. The first price is unpredictability. The reframing of tort claims as fundamental-rights claims depends on the Court's willingness to characterise an injury as a violation of Article 21 — which works for custodial death, custodial torture, and wrongful imprisonment, where the Article 21 reading is now mature, but works less reliably for damage to property, breach of contract, or negligence in routine public administration where no fundamental right is in play. The case-law admits, in Nilabati Behera itself, that the residual category of cases where sovereign immunity may still be a defence is cases grounded purely in tort, contract, or statutory right and not simultaneously in a fundamental-rights violation. Anyone whose complaint does not fit the constitutional template still falls back on Kasturilal — and finds that Kasturilal has been narrowed, refined, ignored, and resuscitated by turns, with no settled rule for which version of the doctrine applies to her case.

The second price is doctrinal. The reframing of tort as fundamental rights has produced a body of constitutional jurisprudence that is impressive on its face and chaotic underneath. Compensation orders under Article 32 are interim, equitable, supplementary; the formal cause of action remains the civil suit. The State pays compensation in the writ proceeding and reserves its sovereign-immunity defence for the parallel suit. The litigant pursues both and may get nothing in the suit. We have a constitutional remedy, and the underlying tort law remains unreformed. This is what Lavanya Rajamani, writing in a different chapter of the same Oxford Handbook, called 'judicial governance' — making law to fill a gap that the legislature should have closed.

The third price is institutional. Every time the Supreme Court manoeuvres around Kasturilal — by ignoring it, by distinguishing it, by reading it down — the Court accepts a small piece of legislative work. The cumulative effect is a Court that legislates the law of state liability in piecemeal fashion, a Parliament that watches it do so and refuses to intervene, and a doctrine that no longer answers to any text. The institutional defence of judicial restraint that Gajendragadkar CJ offered in Kasturilal — only the legislature can fix this — has been honoured in the breach for sixty years. Each time the Court declares the doctrine substantially overcome, it implies that legislation is unnecessary. Each time the doctrine returns, as in Chandrima Das, the legislative gap reopens.

What a statute would do that ratio cannot

A modern Indian State Liability Act — call it an Indian equivalent of the FTCA or the Crown Proceedings Act — would do three things that no Supreme Court opinion can do.

First, it would settle the rule. Section 2(1) of the British Act runs to a paragraph. It says: the Crown is liable in tort as a private person of full age and capacity. A single sentence of statute will, on Indian facts, govern more cases more predictably than the entire judicial career of Kasturilal and its critics. The reason is that judicial doctrine, by its nature, is built on the facts of decided cases; a statute can settle the cases that have not yet been litigated.

Second, it would enumerate the exceptions. The FTCA's discretionary-function exception, the British Act's reservation of acts of state and certain prerogative powers — these are precise textual carve-outs. They are not the open-ended judicial categories of 'inalienable function' or 'traditional sovereign function' that the Indian Supreme Court has been wrestling with since Nagendra Rao. A litigant in 2027 should not have to wait for a constitutional bench to decide whether the act she complains of falls inside or outside an unwritten category. The category should be in the statute book.

Third, it would relieve the Supreme Court of legislative work it should not be doing. The fundamental-rights jurisprudence around state liability is doctrinally innovative because the Court was forced to be innovative — the alternative was leaving the field to Kasturilal. With a statute in place, the Article 32 jurisdiction returns to its proper role as a constitutional remedy for the protection of fundamental rights, and tort claims against the State return to the civil courts where they belong. The two streams are then visible to each other and do not contaminate each other.

The harder question is why, after seven decades of judicial pleading, no Parliament has passed a State Liability Act. The 1967 Bill was reported back to the Lok Sabha by the Joint Committee in 1969 and then lapsed. Successive administrations have not revived it. The Law Commission's 1956 Report — comprehensive, drafted by Setalvad, endorsed by the Court — has not been acted upon. This is not, in the ordinary sense, legislative apathy. It is something more specific: a structural reluctance to abolish a defence that the executive branch finds intermittently useful and rarely costly.

The pattern in the case-law is striking: government counsel in India have often omitted to plead sovereign immunity even when, on Kasturilal, the plea would have succeeded. Rudul Sah, Memon Mahomed, and Basavva Kom all involved facts where Kasturilal-style sovereign-functions immunity was at least arguable. The State did not raise it. The pattern across decades suggests that the executive does not want the political cost of relying on the doctrine in individual cases — but neither does it want the cost of formally giving the doctrine up. The current arrangement is, from the executive's point of view, ideal: a defence that can be picked up when needed and ignored when it would be embarrassing, with the Supreme Court doing the politically costly work of erosion case by case.

This is the legislative failure that ratio cannot fix. The Supreme Court can read Kasturilal down; it cannot remove the State's right to pick the doctrine up tomorrow if it chooses to. Only repeal does that.

There is a structural reason for the asymmetry. Repealing sovereign immunity would expose the Union and the States to a quantum of tort liability that no government has incurred since 1858 — every police firing, every custodial death, every negligent road construction, every collapse of a public-sector hospital wing. Even with the discretionary-function carve-outs that any sensible State Liability Act would include, the fiscal exposure is real. The current arrangement allows that exposure to be discharged through ad hoc compensation orders in Article 32 jurisdiction, where amounts are set by the Court on a case-by-case equitable basis and rarely exceed a few lakhs of rupees. A formal liability statute, with the prospect of plaintiff-friendly damages assessed by trial courts in ordinary civil suits, looks fiscally larger to the State even if doctrinally cleaner. The Court's parallel constitutional remedy is, from the executive's perspective, a discount on full tort liability. The executive has every reason to keep it.

That is the heart of the problem, and it cannot be solved by anything the Court does. The Supreme Court can narrow Kasturilal further. It can declare, again, that sovereign immunity has 'yielded to new theories.' It can build Article 32 jurisprudence around the doctrine until the doctrine is functionally invisible in fundamental-rights cases. None of that disturbs the political calculus that keeps the State Liability Bill on the shelf. The Court cannot legislate; the executive does not want it to. The legislative failure becomes self-sustaining. Each year of judicial improvisation makes legislation look less urgent.

The vestigial Crown

Sovereign immunity in India in 2026 is a vestigial limb of the colonial state. It is supported by no constitutional text; it sits on Article 300(2)'s continuity clause and on a 1868 Bombay High Court decision. It is preserved by judicial reluctance to overrule it, hollowed out by judicial reluctance to apply it, and protected from legislative attention by an executive branch that finds the ambiguity useful. The Supreme Court has done what a court can do — it has narrowed the doctrine to its inalienable-function core and built a parallel constitutional remedy around it. What it cannot do is what comparative jurisdictions did with a single Act of Parliament: replace the doctrine with a written rule.

This is not theoretical. The Court's recent decisions in Common Cause v Union of India and Chairman, Railway Board v Chandrima Das show how unsettled the doctrine remains even after Nagendra Rao tried to draw a bright line. Common Cause conflated 'act of State' with 'traditional sovereign function' in a single paragraph, undoing the distinction the pre-Constitution Hari Bhanji line had established and the Nagendra Rao bench had revived. Chandrima Das, responding to an argument about course-of-employment, reached out and reanimated the very sovereign-functions doctrine the prior decision had tried to confine. The two decisions, only one year apart, give bench-and-bar a doctrine that points in two directions at once.

Consider how the doctrine plays out in practice for an ordinary litigant in 2026. A woman whose husband is killed by a State Transport Corporation bus driver can sue under motor-vehicles law; the State will not seriously plead immunity, because the Vidhyawati line forecloses it. A man whose property is destroyed by police lathi charge during a procession will be told, on the authority of State of M.P. v Chironji Lal, that maintaining law and order is a sovereign function and the State is immune. A trader whose seeds rot in police custody after being seized without a licence will be told, on the authority of State of Assam v Md. Nizamuddin Ahmed, that seizure is a sovereign power and the loss is uncompensated. None of these distinctions is in the Constitution. None is in any statute. All three rest on judicial guesses about which 1868 categories a 2026 fact pattern resembles. This is not how a legal system should ration access to remedy against the State. A litigant should be able to read a statute and know whether the Union or a State can be sued for the wrong she alleges. Indian litigants, in this one corner of public law, still cannot — sixty-one years after Gajendragadkar CJ first noted the problem.

The deeper irony is that the comparative jurisdictions India keeps citing as models — the United Kingdom and the United States — themselves abandoned the very doctrines Indian courts continue to mine. Peacock CJ's distinction in P&O between sovereign and non-sovereign functions of the East India Company was a piece of colonial casuistry designed for a dual-nature entity that did not exist anywhere else. The British Parliament discarded that distinction in 1947 because it had no continuing utility in a state that no longer governed a colony through a chartered company. India inherited the doctrine along with the institutions; it then preserved the doctrine while replacing the institutions. The result is a sovereign-immunity rule that was built for an arrangement India no longer has, applied to a state India did not have in 1868.

The Court has now been asking for that Act for sixty-one years. Gajendragadkar CJ asked for it in 1965. The Law Commission asked for it in 1956. The 1967 Bill came and went. Nagendra Rao asked again in 1994. The Court has done everything within its institutional reach. The doctrine of sovereign immunity in India today survives not because anyone defends it but because no one will formally bury it. That is a failure of legislative will, and it is the kind of failure that judicial creativity makes worse rather than better. Each ingenious workaround postpones the moment at which Parliament has to do its work. The honest course is to stop walking around the doctrine and abolish it.

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