INTRODUCTION
Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit and criminal prosecution. It is the exemption or immunity enjoyed by the state from being sued in another courts. It is developed as an “undisputed principle of customary international law” and the law of nations based upon core aspects of sovereignty applicable in common law. It is based on the latin maxim Par in parem non habet imperium which means equal have no power over an equal. The state are immune only from the sovereign functions not from the non sovereign functions.

State immunity was first recognized by the United states in its supreme landmark case Schooner Exchange vs Mc fadden1 a state has absolute and exclusive jurisdiction within its territory but that it could also be implied or express consent waived jurisdiction.

ABSTRACT
This article examines the evolution of the doctrine of sovereign immunity in India, tracing its transition from the British common law principle that “the King can do no wrong” to its current status under the framework of Article 300 of the Constitution of India. In the absence of comprehensive legislation
governing state liability, the study analyzes how the Indian judiciary has consistently narrowed the scope of “sovereign functions” to ensure citizens have access to legal remedies for the tortious acts of government servants. By evaluating judicial precedents alongside the historical recommendations of the
Law Commission, this research highlights the tension between preserving administrative efficacy and upholding constitutional accountability. Ultimately, the article argues for a formalized legislative framework that replaces outdated immunity doctrines with modern standards of state liability, thereby aligning
administrative practices with contemporary principles of justice and public accountability.

1 Schooner Exchange vs Mc fadden(1812)

HISTORICAL BACKGROUND
It is historically rooted in English common law under the philosophy” The king can do no wrong” and that he cannot be guilty of personal negligence or misconduct, and as such cannot be responsible for the negligence or misconduct of his servants. Another aspect of this doctrine was that it was an attribute of
sovereignty that a State cannot be sued in its own courts without its consent. This doctrine held sway in Indian courts from the mid-nineteenth century until
recently. When a genuine claim for damages is brought in the courts, and it is refuted by an ancient doctrine seemingly having no relevance, there is bound to
be resentment and demands for review. In order not to let genuine claims be defeated, Indian courts have kept narrowing the scope of sovereign functions so
that victims would receive damages.

ARTICLE 300 OF INDIAN CONSTITUTION
(1)The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the
State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue to be used in relation to their respective affairs in 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.

(2)If at the commencement of this Constitution—

(a)any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those
proceedings; and

(b)any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding Slate shall be deemed to be substituted for the Province
or the Indian State in those proceedings.

CASE LAW
N. Nagendra Rao & Co. Vs State of A.P2 ., Non-sovereign functions are defined as the “discharge of public duties under a statute, which are incidental or 2 AIR1994SC2663 ancillary and not primary or inalienable functions of the State.” This decision holds that the State is immune only in cases where its officers perform primary or inalienable functions, such as the defense of the country, the administration of justice, and the maintenance of law and order.

The court provided an example where a search or seizure effected under a statute could be considered an exercise of power within the domain of inalienable functions. Whether the authority to whom this power is delegated is liable for negligence in the discharge of duties while performing such functions is a different matter. However, when similar powers are conferred under another statute as an incidental or ancillary power to carry out the purpose and objective
of the Act, then it is an exercise of a State function that is not primary or inalienable. In such cases, an officer acting negligently is liable personally, and the State is vicariously liable.

In fact, all governmental functions cannot be construed as primary or inalienable sovereign functions. Hence, even if some of the functionaries under
an Act could be said to be performing sovereign functions of the Government, that by itself would not make the dominant object of the Act to be sovereign in nature.

Various decisions rendered by the Supreme Court, both prior to and after Banglore Water Supply Vs A. Rajappa, were discussed in State of U.P. Vs
Jai Bir Singh3 In that case, the Court wished to enter a caveat on confining sovereign functions to the traditional description of “inalienable functions,” which are comparable to those performed by a monarch, a ruler, or a non- democratic government. The concept of sovereignty in a constitutional democracy is different from the traditional concept of sovereignty, which is confined to “law and order” “defense,” “law-making,”and “justice dispensation”.

In a democracy governed by the Constitution, sovereignty vests in the people, and the State is obliged to discharge its constitutional obligations contained in
the Directive Principles of State Policy in Part IV of the Constitution of India. From that point of view, whenever the government undertakes public welfare
activities in the discharge of its constitutional obligations, such activities should be treated as activities in the discharge of sovereign functions. Therefore, such
welfare governmental activities cannot be brought within the fold of industrial law by giving an undue, expansive, and wide meaning to the words used in the
definition of “industry” regarding immunity to sovereign powers.

3 (2005) 5 SCC 1

CRITICAL ANALYSIS
The doctrine of sovereign immunity is a colonial relic that persists in Indian jurisprudence despite the transition from a monarchical regime to a constitutional democracy. At its core, the principle posits that the State cannot be held accountable for the tortious acts of its servants, a concept justified historically by the belief that the Sovereign could not be held responsible for personal negligence.

Critically, applying this rule in post-colonial India represents a significant jurisprudential contradiction for several reasons:-

1.Conflict with constitutional supremacy
The Constitution of India establishes that the law, not the sovereign, is supreme Retaining a doctrine that exempts the State from liability violates the spirit of a
welfare state where the government is accountable to the people.

2. Arbitrary Classification
The historical distinction between “sovereign” and “non-sovereign” functions—used to determine when the State is liable—is inherently arbitrary and inconsistent. Courts often struggle to define where administrative activity ends and sovereign action begins, leading to unpredictable litigation outcomes.

3. Denial of justice
By allowing the State to hide behind this “ancient doctrine,” citizens are frequently denied compensation for genuine grievances. This forces the judiciary to engage in “judicial activism” to narrow the doctrine’s scope, creating a fragmented legal landscape rather than a clear statutory path to
accountability.

4. The Democratic Deficit
In a country where the state is the largest employer and service provider, the idea that the State can be “above the law” in its daily functions is antithetical to
modern administrative law, which emphasizes transparency and public trust.

CONCLUSION
The doctrine of sovereign immunity originated from the British common law doctrine. With the establishment of the British Raj in India, the doctrine was also incorporated as a part of the legal doctrine in Indian laws. However, the applicability of sovereign immunity in India, even during the rule of the East India Company, was not welcomed.

With independence and the establishment of constitutional supremacy, the guarantee of fundamental rights became the priority of the Indian judiciary. However, the doctrine of sovereign immunity and the fundamental rights guaranteed by the state contradict each other. Hence, with time, not only was the doctrine overthrown by the judiciary, but the defence of sovereign immunity also became infructuous. However, the Code of Civil Procedure has incorporated provisions for sovereign immunity for foreign states in certain situations, even though they can also be sued with prior written permission of the Central Government.