Vicarious Liability

Law imposes certain duties upon its citizens. A breach of these duties is a wrongful act. When a
person breaches duty imposed by civil law in contrast to criminal law or civil wrongs such as
breach of contract or breach of trust, he commits a breach of Tort law. Tort is primarily a civil
wrong, a breach of general legal rights vested in another.

In the common course of law, a person who commits the crime, serves the time. However, there
are some exceptions to this general rule, one of which is the common law concept of vicarious
liability. The term vicarious is derived from the Latin term "vice" meaning in place of.
Etymologically, vicarious liability means 'liability instead' i.e. liability incurred by one yet
suffered or discharged by another. The term 'vicar' is the cognate of vice and means "in the
person of" or a substitute.

In the eyes of law, a man cannot be held liable for the acts of another, he would only be held
liable for the torts or wrongful acts committed by him. Under certain circumstances however, a
person can be held liable to discharge the liability of another. When a person discharges liability
of another under such circumstances, then he is said to incur a vicarious liability. Vicarious
liability imposes liability on a person other than the wrongdoer is also known as imputed
liability.

It occurs when:

1. A wrongful/ tortious act or omission is committed by one person

2. There exists a relationship of control between the wrongdoer and the tortfeasor

3. When such an act or omission is directly related to the said relationship.

There can be enumerated 3 kinds of relationships, where the concept of vicarious liability can be
imposed, namely:

1. The relationship between an Agent and the Principal:

The agent and the principal share a fiduciary relationship i.e. a relationship based on trust. In this
relationship, the principal employs the agent and authorises him to act on his behalf and
discharge duties that have been imputed upon him by the principal. The person who is authorised
to act as such is the agent.

The authorisation of the principal can be expressed or implied. If the agent commits a tort in the
due course of his employment or in discharge of his duties, liability can also be imputed upon the
principal who authorised such an act in the first place.
Here, the principal stands in a position of power and control over his agent. Therefore, both the
agent and the principal are joint tortfeasors and their liability is joint and several. The plaintiff
has the right to sue both or either.

In, State Bank of India v. Shyama Devi,

The plaintiff's husband had handed over cheques to be deposited in his account to a friend who
was an employee of the defendant bank. No receipts of the deposits were collected and the friend
misappropriated the amount. It was held by the Court that the employee was not acting in his
scope of bank employment but as a depositor's friend when he committed the fraud. Therefore,
the defendant bank could not be held liable by vicarious liability.

2. The relationship between a master and his servant:

It is a general rule of law, that if a master authorises or orders certain acts to be performed by his
servant, then the master must be held liable for any tort that the servant commits. Again, here the
master stands in a position of control or authority over the servant who works under his
supervision. The master's liability arises because he enjoys the benefit of acts done by his
servant.

However, for the master to be made liable for the acts of his servant the following essentials
must be fulfilled:

o The tort was committed by the servant. The servant is a person employed to fulfill
all the duties delegated by his master.

o The servant committed the tort in the "course of employment." An act is said to be
in the course of employment when the wrongful act is expressly authorised by the
master or if it is a wrongful or unauthorised mode of performing an act authorised
by the master.

It is pertinent to note that this liability arises even when the servant acted against the express
instructions and for no benefit of his master. Like in the agent and principal relationship, the
liability of the master and servant is joint and several and both are joint tortfeasors.

However, in cases where a servant acts outside the course of his employment, the master cannot
be made liable for his acts merely because he would not have had the opportunity to perform
such an act but for being in the master's service.

Similarly, the master cannot be held liable for the wrongful acts of an independent contractor
hired by him. Like a servant, an independent contractor undertakes to complete a task of its
employer however, unlike a servant, he is not under the supervision or control of his employer
and can use independent discretion in discharge of his duties.

Traditionally, the test to determine the difference between a servant and an independent
contractor used to be the "control test". However, modern authorities apply the "hire and fire"
test i.e. to check if a person is the pay master of another and has the right to fire his employee.

3. Liability of partners:

The relationship between partners is that of a principal and agent and the rules of agency also
apply to them. All actors in a partnership act on behalf of each other while representing
themselves as a collective. These partnerships can take forms of firms, companies, a trustee or
even a Karta representing a Hindu joint family. Therefore, a partner can be held vicariously
liable for a wrongful or negligent act by another partner under the rules enumerated in Indian
Partnership Act, 1935.

In Hamlyn v Houston & Co. one of the partners of the form, acting within the scope of his
authority, attempted to bribe the clerk of the plaintiff to induce him to commit a breach of his
employment contract. It was held by the court that the other partner can be held vicariously liable
for a tort committed by one of the partners.

Liability of the state

For decades now, the powers and functions of state have expanded considerably. There has been
substantial change from the traditional laissez faire policies to recognition of state as welfare
state. It is also a popular saying that "power corrupts and absolute power corrupts absolutely."

Therefore, a check on the state powers to ensure its accountability in circumstances of violation
of common legal rights of citizens by state employed actors is an essential requirement. This
requirement has been fulfilled by Article 300 of the Indian Constitution which provides that the
Union of India and the States are juristic persons for the purpose of any suit or proceedings and
as such can sue or be sued in their name.

Before the coming of the Indian Constitution as it stands presently, there was a brief mention of
the liability of the state under Section 65 of The Government of India Act ,1858. The concept of
imputation of vicarious liability upon the state is essential for the performance of its basic duty of
protection of its citizens. If it wasn't for such provisions, no doctors in a government hospital or
no police officers could have been held liable for any malicious or wrongful acts.

Basis and justification of the concept of Vicarious Liability

The concept of vicarious liability finds its roots in the following Latin maxims -- "Quit facit per
aliumfacit per se"

Literally means, "he who does an act through another is deemed in law to do it himself". This
maxim is applicable in the master-servant and Principal-agent relationships because one of the
actors in the relationship is employed by another specifically to Act on their behalf or perform
certain specified acts. Because they enjoy the benefits of acts of another, they are also liable to
accept any liabilities that may ensue in the performance of such acts.

Respondent superior

Literally means, "let the superior be liable." Here again, the master and the principle enjoy a
position of power and control whereby they can dictate or authorise performance of an act. In
these cases, because they hold a position of superiority, they can be held vicariously liable for the
acts of their employees

Although these maxims elaborate upon the principle and can be said to form its basis yet, they
cannot dictate the law itself. These ideas must be combined with policy considerations to give
material results.

The doctrine also finds its justification in the following reasons:

1. The presumption that any person employing another on his behalf has "deep pockets" and
therefore, can be held liable as a substitute to the actual wrongdoer to satisfy the claims
of one who has been wronged. For example, in a master servant relationship, the master
may be able to satisfy a claim because of his larger pockets or his claim in insurance.

2. Since the master has a potential financial concern, he will ensure absolute safety and care
for his employees and for others.

3. Since one enjoys the fruits of labour of another, he must also be held liable for any loss
caused. He can not be allowed to accept the benefit and reject the burden of his labour.

Conclusion
Vicarious liability imposes liability on a person who is not personally responsible for any
tortious wrong. It can be understood as a strict liability on the employer for the acts of his
employees. The concept is certainly beneficial for the victim or the plaintiff in order to get claim
and compensation for any damage caused to him.

Yet, this liability also imposes an unreal burden on the employer to fulfill the liabilities incurred
by another, even when such an act could be potentially malicious in nature. It also poses
problems pertaining to the scope of one's employment, a potentially indirect authorisation and
the lack of certainty of intention on behalf of the tortfeasor or wrong doer.
 Doctrine of Soverign Immunity

Introduction
The king can do no wrong, so there is no question of suing him, even in a distant dream. Sounds
impossible? In the age of thriving democracy and human rights, it may be unthinkable, but once
upon a time, it was considered as true as the gospel. While most of the countries in the world do
not have monarchies anymore, the idea that a king can do no wrong has left its mark in modern
democracies. Yes, it gave rise to the doctrine of legal immunity – the doctrine of sovereign
immunity.

The concept of sovereign immunity has its roots in the British common law doctrine. It was
incorporated into the Indian legal scenario with the British Raj in India. In modern times, with
the Indian courts emphasising the guarantee of fundamental rights, it has rendered the doctrine of
sovereign immunity almost ineffective.

Origin of sovereign immunity in India

The doctrine of sovereign immunity is a centuries-old concept prevalent in Roman law which
can be traced back to the time of the Justinian Code of Corpus Juris (6th century BC.) The
concept of sovereign immunity can be attributed to the fact that monarchs have absolute and
unlimited power. The doctrine became an integral concept of the British Crown, which enjoyed
absolute power. A scholarly article published in the Louisiana Law Review suggests that from
the 13th century on, there is some historical evidence that Edward I the King might have been
sued. As England slowly proceeded towards democracy in the coming centuries, the legality of
the doctrine changed thoroughly.

Unfortunately, not much information is available on the existence or non-existence of the

doctrine of sovereign immunity in India during the times of ancient dynasties and Islamic rules.
Some researchers suggest that the Indian tribal courts might have used the doctrine. Commonly,
it is said that the doctrine came into force with the establishment of the British Raj in India.

In modern times, however, the doctrine has been left almost in fructuous by the enforcement of
constitutional values and fundamental rights guaranteed by the Constitution, since both
are contradictory to each other. The existence of foreign state immunity is still there and is
governed by Section 86 of the Civil Procedure Code, 1908, discussed later in this article.

Features of sovereign immunity

The essential features of sovereign immunity are as follows:

Inviolability
The doctrine of sovereign immunity is an inviolable doctrine, which means sovereign immunity
cannot be infringed, dishonoured or violated. It is a legal doctrine which states that a sovereign
state has immunity from being sued. Moreover, it also states that the states can commit no wrong
and therefore, they are immune from civil or criminal suits and paying damages. The states often
use the doctrine of sovereign immunity to safeguard them from a foreign court exercising its
jurisdiction or to pay damages. It sometimes works as a “procedural shield” for the states. States
also have immunity from execution under sovereign immunity, and Dautaj notes
metaphorically, “Sovereign immunity from execution is said to be “the last fortress, the last
bastion of sovereign immunity”.” There is also an almost similar immunity available to states
that is only applicable to foreign courts, known as state immunity. The difference between both
has been discussed later.

However, there are exceptions to sovereign immunity. There are situations where sovereign
immunity is not applicable. There are also criticisms of sovereign immunity. Some term this as a
justification of legal wrongs done by a state. The article is just a humble attempt to delve into the
doctrine of sovereign immunity, including its definition, forms, origin, historical development,
sovereign immunity under international law and in various countries including India, its
exceptions and criticisms.

A form of immunity
In simple words, sovereign immunity is a legal doctrine which states that a sovereign or state can
do no legal wrong and therefore is immune from civil suits. By this doctrine, states are also
protected from being prosecuted criminally. It is also known as crown immunity because the
doctrine originated from British common law. The British common law doctrine states that kings
can do no wrong. In a modern context, sovereign immunity states that a government cannot be
sued without its consent, or even if the government has been sued, the foreign courts cannot
exercise their jurisdiction to rule or make them liable for damages.

According to the doctrine of sovereign immunity, a state is legally immune to judicial rulings in
foreign countries. Sovereign immunity is treated as an important concept in customary
international law (unwritten laws, principles, and practices accepted as parts of public
international law), and it is also present in the legal provisions of certain countries, including
India.

Sovereign immunity in international law

There is no exact or uniform definition of sovereign immunity. In customary international law, it

is commonly termed as an important principle by which a sovereign state is protected from being
sued without its consent in the courts of another sovereign state. It can also be defined as an
“exemption” of a sovereign state from the jurisdictional authorities of courts in another sovereign
state. This doctrine is based on the principle of equality of all sovereign states, as mentioned in
the Charter of the United Nations of 1945.

Related legal maxims

The concept of sovereign immunity is also expressed in the popular legal maxim Par in parem
non habet imperium, a Latin maxim which literally means that equal power has no sovereignty
over each other. It means that a sovereign state, including its legal bodies, cannot exercise its
jurisdiction over another.

Another important legal maxim relating to sovereign immunity is rex non potest peccare, which
states that a king can do no wrong and has its roots in the British common law.

Sovereign and non-sovereign functions of states

The doctrine of sovereign immunity protects a state from lawsuits. It also provides immunity
against challenging wrong decisions by the government on grounds of public policy. This
doctrine advocates that the state cannot be prosecuted due to its sovereign nature.

However, in India, particularly post-independence, the concept slowly changed, and the courts
started accepting legitimate claims against the state so the victim could get remedies. Hence, the
scope and applicability of sovereign immunity in the Indian context kept shrinking. In such a
way, the sovereign functions of the state also started getting reduced. Now, the application of the
doctrine depends on the functions performed by a state, which are divided in terms of sovereign
and non-sovereign categories. Let us discuss both under different headings.

Sovereign functions performed by the state

Sovereign functions of a state can be defined as those functions for which the state cannot be
sued in a court of law. Sovereign functions of a state include:

 defence-related matters of the state,

 matters and activities pertaining to the armed forces,

 declaring peace or war,

 foreign affairs,

 retaining or acquiring territories etc.

The state can perform these functions without being accountable to ordinary civil courts.
However, there are some sovereign functions that are not completely inalienable from the
jurisdictions of courts. These functions include:

 revenue and taxation,

 maintenance of law and order,

 police forces,
  various legislative functions, including administration of law and implementation of
policies, grant of pardon, arrest and detention, etc.

Non-sovereign functions performed by the state

In simple words, a state can be sued in a court of law for its non-sovereign functions. Non-
sovereign functions are those functions that a private individual may perform without any
specific government authority. The state has tortious liability for any “acts of commission or
omission’, which may be either voluntary or involuntary.

It must be noted that the fine line of differences between the sovereign and non-sovereign
functions of a state is extremely difficult to distinguish. Some cases dating from British-ruled
India have elaborated on this fact very well. The absolute immunity of the Crown was never well
accepted in India, and hence it was challenged multiple times, even during the rule of the East
India Company. The John Stuart’s case, 1775 is the first example where the judiciary interpreted
state liability during the rule of the East India Company. In another similar case,
namely, Moodaly v. The East India Company (1785), the Privy Council held that the common
law doctrine of sovereign immunity has no applicability in India.

The most landmark case in this regard is the case of Peninsular and Oriental Steam Navigation
Co. v. Secretary of State for India (1861). In addition to confirming that sovereign immunity has
no applicability in India, it also differentiated between the sovereign and non-sovereign functions
performed by a state.

The case is clearly a pre-Constitution case and is under Section 65 of the Government of India
Act, 1858. An employee of the plaintiff company was travelling in a horse-drawn coach
belonging to the plaintiff company in Calcutta. While it was passing through the Kidderpore
dockyard, an accident occurred due to the negligence of government employees. The plaintiff
company sued the government, claiming compensation and holding the government liable since
the government was responsible for maintaining the dockyard.

Peacock, CJ, in this case, gave a landmark judgment in contrast to the doctrine of sovereign
immunity. The government was found to be liable since the maintenance of the dockyard was
held to be a non-sovereign function of the state.

Types of sovereign immunity

In most national infrastructural projects, the awarding authority is a government authority that
may benefit from it. There may be some legislation in some sovereign states which waives the
sovereign immunity of the said state for a specific infrastructural project.

However, this is not universal, and private operators should check for it. The state can waive
both types of immunities through the presence of a sovereign immunity waiver clause present in
the contract between state and private individuals.
In cases of dispute, states generally get the benefit of the two types of immunity as follows:

Immunity to jurisdiction

Immunity to jurisdiction protects a state from being sued in the courts of another foreign state.
Hence, the courts in the foreign state have no jurisdiction over the said state. Hence, the state
entities have jurisdictional immunity. Only the state in question can waive its immunity.

Referring the disputes to international arbitration may be a form of waiving jurisdictional

immunity by states. According to the World Bank, some states may hesitate to go for
international arbitration due to the apparent dominance of western principles, which may not
give them a chance of a fair hearing. In such cases, they can opt for arbitration under
the UNCITRAL Rules, which are comparatively culturally neutral.

Immunity from execution

When a state has immunity from execution, the courts of another country cannot seize their
properties and assets. The state can also waive this immunity, though it is comparatively
complex compared to waiving state immunity. Therefore, the general proposition for immunity
from execution is that certain assets of the state are not made available to satisfy the arbitration
award, such as the foreign embassies or consular possessions of the said state.

Categories of sovereign immunity

The issue of sovereign immunity is itself complex. It gets more complex because there is no
uniform jurisdictional approach to this. These issues have also been acknowledged by
the Organization for Economic Cooperation and Development (OECD). In a research paper
published by the OECD titled “Foreign Government-Controlled Investors and Recipient Country
Investment Policies: A Scoping Paper”, it was noted that the diversity of different national laws
and their jurisprudence makes it harder for foreign government investors to predict “the extent of
foreign sovereign immunity.” According to the OECD, the doctrine of sovereign immunity is not
only available to the sovereign state; it can also be used to protect the various organs of a state,
such as the executive, legislature, and judiciary.

Clearly, the doctrine of sovereign immunity protects a sovereign state from the legal and judicial
proceedings taking place in the national courts of another sovereign state.

Sovereign immunity can be categorised jurisdictionally into local and foreign sovereign
immunity. Based on the extent of sovereign immunity, it can also be categorised into absolute
sovereign immunity and restrictive sovereign immunity.

Sovereign immunity based on jurisdiction

Sovereign immunity is available both locally and internationally, i.e., it is available within the
territories of a state and outside the territories of a state. Based on jurisdiction, sovereign
immunity is of two types.

Local sovereign immunity

The concept of local sovereign immunity is more common in the US. It is a form of sovereign
immunity that protects local governments from federal lawsuits. It is also known as state
sovereign immunity. Even when the government or its agents violate federal constitutional
rights, a very stringent causation is required to file a suit against the government. This
requirement often prevents or prohibits recoveries from local governments. The requirement of
stringent causation is rooted in state sovereignty jurisprudence. Additionally, local state actors
also have qualified and absolute immunities, which originated from the doctrine of sovereign
immunity.

Under the doctrine of state sovereign immunity, a person cannot bring a federal lawsuit for
damages against a state without its consent. In the case of Alden v. Maine, 527 U.S. 706
(1999), it was held that a plaintiff cannot bring a federal lawsuit in a state court when sovereign
immunity would prevent him from filing a lawsuit in federal court. The Eleventh Amendment of
the US Constitution mentions state sovereign immunity. State sovereign immunity also contains
“anti-commandeering,” which means that the federal government cannot “commandeer” state
resources or personnel for federal purposes. The Tenth Amendment of the US Constitution
affirms this.

The US has the Federal Tort Claims Act (FTCA) of 1946. The FTCA allows private individuals
to file suits against the US for torts committed by officials acting on behalf of the US
government. It waives the sovereign immunity of the US government by allowing its citizens to
pursue tort claims against the government.

Foreign sovereign immunity

Foreign sovereign immunity is the immunity available to a foreign sovereign state. States often
claim this defence to prevent a court of another foreign state from using its jurisdictions or from
attaching or executing against its property. Thus, the factor of foreign sovereign immunity is one
of the important factors a state considers before dealing with commercial activities with foreign
states or any of its entities. Otherwise, if any commercial dispute arises with the foreign state, the
state may suffer serious harm. Another point the states must note before entering into a
commercial agreement is that there are different jurisdictional approaches by different states to
sovereign immunity. So the factor of jurisdiction regarding sovereign immunity should be
considered.
Foreign sovereign immunity may act as a bar to executing international arbitral awards. In such a
case, it acts as a jurisdictional doctrine which prevents the national courts of a sovereign state
from exercising their jurisdiction over another state.

Sovereign immunity based on extent

As already mentioned, sovereign immunity based on extent is mainly of two types. They are
absolute immunity and restrictive sovereign immunity. Absolute sovereign immunity provides
immunity to the acts done by a sovereign state or its organs from any type of judicial or arbitral
proceedings against the state, hence making the sovereign immunity absolute. On the other hand,
restrictive immunity does not provide immunity to the state from all judicial or arbitral
proceedings. It only guarantees that the commercial activities and related agreements of a
sovereign state are immune from judicial or arbitral proceedings.

Absolute sovereign immunity

It is a form of sovereign immunity in which all actions of a state or its agencies, irrespective of
the nature of dispute, transaction, or purpose, are protected by immunity. Under the principle of
absolute sovereign immunity, a sovereign state cannot be sued for its own actions or those of its
agencies. Consequently, a sovereign state seeks this defence when it defaults on a commercial
agreement made with a foreign private person or with a state. The only exceptional situation
where one can bring a suit against the state is when the state waives its immunity. The state may
consent to waive its immunity. Otherwise, it cannot be sued in a foreign court.

The principle of absolute sovereign immunity can be traced back to the 18th and 19th centuries.
It was logical at that time since the role of sovereign states was purely administrative and
political, and they engaged in little interstate commercial activity, particularly agreements with
warranties to enforce commercial contracts. So, it was considered that irrespective of the
circumstances, a sovereign state is not answerable for its actions in foreign courts, and the courts
have no jurisdictional authority.

Two landmark cases where judicial pronouncements were made in favour of this principle
are Schooner Exchange v. McFaddon, 11 U.S. 116 (1812), a US case, and the English case
of Parlement Belge (1878). Both cases are related to a vessel of war and a Belgian ship,
respectively. In the first case, it was held that a vessel of war of a foreign state is exempted from
the jurisdiction of US courts. Similarly, in the English case, the Belgian ship was protected by
the principles of absolute immunity, and English courts had no jurisdiction over it. Thus, both
commercial and non-commercial activities of a state were held to be protected by the doctrine of
absolute immunity.

In modern times, instead of absolute sovereign immunity, the concept of restrictive sovereign
immunity is used, which offers immunity to particular activities of a state, and most developed
states have adopted this doctrine. However, jurisdictions like China still use the doctrine of
absolute immunity, even though there has been a recent change in its policy.

Restrictive sovereign immunity

Socialist states and state-owned entities began emerging at the end of World War II. Till then,
the doctrine of absolute sovereign immunity was in use. However, as the sovereign states started
taking part in global trade and became parties to several commercial activities, absolute
immunity posed a problem in cases of disputes arising between them. So, the principles of
absolute sovereign immunity were considered impractical. Thus, there was a dire need for a new
theory which would benefit the commercial activities of the sovereign states. It resulted in the
doctrine of restrictive sovereign immunity to emerge.

The theory of restrictive sovereign immunity states that the sovereign immunity of a state will
not be applicable to commercial agreements made with private individuals or with another
sovereign state. So, if a state enters into a commercial agreement with such entities, the state can
be sued if there is a breach of the commercial agreement on the part of the state.

Sovereign states may enact certain statutes regarding their stance on restrictive immunity. For
example, in the US, the Foreign Sovereign Immunities Act of 1976 (FSIA) mentions the
conditions under which a foreign state should be immune from lawsuits. On the other hand, 28
U.S. Code § 1605 of the Act also mentions the exceptions where the foreign state will be
immune from being sued in the US courts, particularly in situations regarding commercial
transactions in the US or transactions which have a direct effect on the US. The State Immunity
Act of 1978 (SIA) of the UK is another example of such an Act.

Even though many countries have separate statutes regarding restrictive immunity, India does
not have any comprehensive statutes, though it has been briefly mentioned in some of the legal
provisions discussed in this article.

Qualified immunity

Another type of immunity which is available in the US is qualified immunity. It has roots in the
doctrine of sovereign immunity. It provides government officials (particularly law enforcement
officials such as police) with optional or discretionary immunity from lawsuits for damages
unless the plaintiff can prove that the official violated “clearly established statutory or
constitutional rights of which a reasonable person would have known”, as held in the case
of Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether a right was clearly
established, the courts analyse the situation hypothetically. It is examined whether the official
could have known that his action violated the plaintiff’s rights.

In a lawsuit for qualified immunity, first, the plaintiff files an action against the official under
the Civil Rights Act of 1871 (commonly known as Section 1983). The government official, in
this case, raises the defence of qualified immunity, which protects him. It is not immunity to pay
monetary damages only, but immunity from going through trial at all.

It is only applicable to government officials as individuals; the defence is not available if the
plaintiff files a suit for damages against the government for the wrongdoing of its officials.

The doctrine of qualified immunity was first introduced by the US Supreme Court in the case
of Pierson v. Ray, 386 U.S. 547 (1967). According to some legal scholars, the doctrine was
introduced to protect law enforcement officials from frivolous cases, particularly in a situation
where they acted in good faith or because of larger public interests. In recent times, with many
incidents of alleged unjustified acts by law enforcement officials, the doctrine of qualified
immunity has become a source of controversy.

Sovereign immunity from legal proceedings

In legal proceedings, particularly those related to international commercial transactions between

state parties, they may opt to resolve future disputes in the courts of either party. In such a case,
the commercial agreement made between them clearly mentions the law of which country should
be applicable. If a sovereign state has laws regarding restrictive immunity, such a state cannot
plead the defence of sovereign immunity to stop the courts of another party from exercising their
jurisdiction if any dispute arises in the commercial transaction. Countries like the US and UK
have addressed the challenge of suing sovereign states in their national courts, and for this, they
have specific Acts such as the Foreign Sovereign Immunities Act of 1976 (FSIA) and State
Immunity Act of 1978 (SIA), respectively.

In countries like India, where there is no statute which expressly mentions restrictive immunity,
India can easily raise the defence of sovereign immunity in foreign courts to prevent it from
being sued in the national courts of other sovereign states or from paying damages. One of such
noteworthy examples is the case of Cairn Energy PLC and Cairn UK Holdings Limited v. The
Republic of India (2015), also known as the case of Cairn v. India. In this case, the international
arbitral tribunal held that India had breached its contract under the India – United Kingdom
Bilateral Investment Treaty (1994), and the tribunal ordered India to pay Cairn damages of USD
1.2 billion for the losses it suffered. India, even though it refunded the entire amount, raised the
defence of sovereign immunity to prevent it from paying the damages.

Since many countries in the world do not have any expressed statutes on restrictive sovereign
immunity, commercial parties who enter into agreements with such states often include a specific
clause in their agreements. The clause ensures that the sovereign states waive off their sovereign
immunity expressly if any future dispute arises. Such a clause is known as the ‘Sovereign
Immunity Waiver Clause.” The objectives of this clause are to ensure that, in case of any
possible future disputes with the sovereign state, the foreign court can exercise its jurisdiction
and is able to hear the legal proceedings, order reliefs for the involved commercial parties,
provide judgements and awards, and also enforce arbitral awards against the foreign state.
The wording or formatting for different types of sovereign immunity clauses has been discussed
in detail here.

If the Sovereign Immunity Waiver Clause is included in any commercial agreement, the
participating sovereign state cannot claim the defence of sovereign immunity to prevent any
legal proceedings in a foreign court. In states with statutes which expressly document the
restrictive immunity principle, these clauses serve no practical purpose since they are already
implied. However, it is advisable to include such a clause to safeguard against future disputes.
Former Attorney-General for India, K. K. Venugopal, is also of the opinion that to avoid any
uncertainty, it is prudent to include such a clause on waiver of sovereign immunity.

However, it must be noted that even if a sovereign state allows a foreign court to exercise its
jurisdiction in case of any future disputes on the basis of the sovereign immunity waiver clause,
it does not necessarily mean that in case of a dispute, if the judgement goes against the state, the
state assets (any kind of state infrastructure, real estate property, intellectual property, revenue,
payment, or service owned by any state entity and/or public benefit corporation) of that
sovereign state can be seized or executed to enforce the judgement. This is because there is a
basic difference between the types of sovereign immunity: ‘immunity from jurisdiction’ and
‘immunity from execution.’

‘Immunity from jurisdiction’ is the privilege of the sovereign state, where it can refrain from
allowing a foreign court to exercise its jurisdictions; conversely, immunity from execution’
ensures the sovereign state that even though the foreign court is allowed to use its jurisdiction
over the sovereign state, if the judgements go against the state, its state assets cannot be seized
and executed to enforce the said judgement. So, even though a sovereign state lacks
jurisdictional sovereign immunity, it can successfully resist the execution of its state assets.

Sovereign immunity and execution of state assets in foreign jurisdictions

Sovereign immunity from execution depends upon the nature of assets upon which execution is
to be levied, not upon the nature of claims; the claims can be of a commercial or sovereign
nature. To enforce judgements passed by foreign courts for a dispute arising between the parties
in a commercial transaction, including a sovereign state as one of the parties, the following
conditions must be satisfied:

 The state assets of a particular state must be pledged as security or hypothecated to be

executed in the future in that foreign state for any future dispute or default by the state.
The sovereign state should consent to the execution of such state assets to satisfy the
judgment against the state.

 The particular state asset must have been used or have any connection to the commercial
activity based on which the claim against the state is made.
Such provisions are present in both Section 1610(a) of the United States Foreign Sovereign
Immunities Act of 1976 and Section 13(2)(b) of the English State Immunities Act of 1978.

Article 19 of the United Nations Convention on Jurisdictional Immunities of States and Their
Property states that a sovereign foreign state cannot take any post-judgement measures of
constraint, which include attachment, arrest, or execution, against the property of another state
unless the state has expressly consented to the measures through the following channels:

 by an international agreement;

 by an arbitration agreement

 in a written contract; or

 a declaration given by the state before the court; or,

 by a written communication after a dispute between the parties has arisen;

The property can also be attached if the state itself allocates or earmarks the said property to
satisfy the claim related to the proceeding.

India signed the Convention on 12th January, 2007 but it has not been ratified yet. Expressly, for
states like India, which lacks any legislation on restrictive immunity, the execution of state assets
is difficult unless India expressly consents to it.

Many scholars opine that if a state has immunity from execution, it does not matter whether the
state has immunity to jurisdiction or not.

Another problem regarding the execution of assets that commonly arises is the issue of mixed
assets. Mixed assets are those assets which are used for both sovereign and commercial purposes.
Axiomatic international laws state that state assets used for sovereign purposes cannot be
executed to satisfy a commercial judgment. Again, if the asset is used for both sovereign and
commercial purposes, it cannot be used for commercial judgments because it is partially used for
sovereign purposes. There are multiple examples of judicial pronouncements regarding the issue
of mixed assets.

Challenges in the execution of state assets

Even if the state does not have access to immunity of execution, the foreign state may face some
of the following challenges while executing the assets of the state:

 Lack of assets;

 Restrictive nexus requirement;

 Mixed assets;
  The burden of proof on the judgment creditor to prove the nature of state assets sought to
be executed is commercial.

Concept of sovereign immunity and Section 86 of the Code of Civil Procedure

Section 86 of the Code of Civil Procedure deals with the law regarding the jurisdiction of foreign
states in India. It applies the international law of the inviolability of foreign states in an Indian
court, thus upholding the doctrine of sovereign immunity.

Section 86 of the Code of Civil Procedure, 1908

The concept of sovereign immunity is enshrined under Section 86 of the Code of Civil
Procedure, 1908. It states that no foreign state can be sued in any court. A foreign state can only
be sued if the central government consents, “certified in writing by a secretary to that
government”. Hence, prior written consent from the government is necessary. Section 87A of
the Code clarifies that a “foreign state” is any state recognised by the Government of India
situated outside the territory of India.

However, the Code does not discuss whether sovereign immunity applies to commercial
transactions or not.

Consent by the Central Government for such suits

To institute a suit against foreign entities in India, Section 86 of the CPC states that unless the
Central Government provides written consent through its Secretary, no suit against foreign states
(including the Rulers, Ambassadors, and Envoys) can be filed. However, there is an exception to
that. A person, as a tenant of immovable property in any foreign state, can sue without such
consent. Such a person can institute a suit against the foreign state from whom he holds or claims
to hold the property. In other cases, prior written consent from the central government is
mandatory.

In other situations, such consent may be given by the Central Government with respect to a
specific suit or multiple specific suits. Consent can also be obtained for multiple suits belonging
to a specific class or classes. The government may also specify the Court where such foreign
states may be sued.

The Central Government shall not provide any consent unless it appears to the Central
Government that the foreign state:

 Has itself instituted a suit against the person who is desiring to sue;

 Trades within the local limits where the said court has its jurisdiction;

 Possesses immovable property within such jurisdiction and will be sued regarding such
property or money charged on this behalf;
  The foreign state itself has waived the privilege of sovereign immunity through the
provisions of Section 86. The waiving of privilege can be either implied or expressed.

No decree can be executed against any property of a foreign state without the written consent of
the Central Government through its Secretary.

Section 86 is applicable to any ruler, ambassador, or envoy of a foreign state and also to any high
commissioner of any Commonwealth country.

Section 86 does not have the scope to arrest any ruler, ambassador or envoy of a foreign State or
any high commissioner of any Commonwealth country.

The Central Government may reject requests for granting written consent to sue a foreign state or
its representatives, but before that, it should provide a “reasonable opportunity of being heard” to
the person making such a request. Only after that, the government may decline such a request.

In the case of Qatar Airways vs. Shapoorji Pallonji & Co. (2013), there was a commercial
dispute between the parties. The appellant was found to be a legal personality governed by the
laws of Qatar. It was asserted that the appellant is a foreign state under Section 86 of the CPC,
and a suit filed in the original jurisdiction of the High Court is not maintainable unless permitted
by the Central Government. A judgement authored by the Bench of Justice D.Y. Chandrachud
and Justice A.A. Sayed of the Bombay High Court held that contractual relationships governed
by commercial activities in India are subject to the jurisdiction of a competent court in India.

In 2021, the Ministry of External Affairs of India granted permission under Section 86 of the
CPC to a French company named Ultraconfidentiel Design Private Limited to sue the Spanish
Embassy in India.

Sovereign immunity and the Constitution of India

Post-independence, the Indian courts have continued to narrow down the scope of sovereign
immunity so that aggrieved citizens can sue the state and may receive fair compensation if they
are entitled to it. The Constitution of India does not expressly voice for sovereign immunity,
rather it is based on inference.

Both Articles 294 and 300 under Chapter III of the Constitution of India, which deals with
“Property, Contracts, Rights, Liabilities, Obligations and Suits,” contain provisions regarding
sovereign immunity of India. Both the Articles have explicit and implicit provisions regarding
sovereign immunity.

Article 294 talks about the rights, liabilities and obligations of the central and state governments.
Article 294(b) specifically states that all rights, liabilities and obligations of both the central and
state governments arise out of contracts or otherwise. The word ‘otherwise” implies any other
liabilities, including tortious liabilities.
Article 300 is a key provision related to the doctrine of sovereign immunity. It deals with the
liability of the state and has its roots in Section 176 of the Government of India Act, 1935. This
section specifically mentions that “the Federation may sue or be sued by the name of the
Federation of India, and a provincial government may sue or be sued by the name of the
province.”

Similar to the aforementioned provision, Article 300 considers the central and state governments
to have a juristic personality. The Government of India can be sued in a court of law as the
Union of India. Similarly, an Indian state government can be sued as “State of X.”

Article 300(1) of the Indian Constitution declares the nomenclature of state parties to suit
proceedings, while Article 300(2) underlines the extent of liability of the states.

The first notable case regarding the liability of the state after the Constitution came into force
was State of Rajasthan v. Mrs. Vidhyavati (1962), which examined the scope and application of
Article 300.

State of Andhra Pradesh v Challa Ramkrishna Reddy & Ors (2000) has examined the
relationship between the doctrine of sovereign immunity and the fundamental right of right to
life under Article 21 of the Constitution. Article 21 forbids the state to deprive a person of their
personal life and liberty “except according to a procedure established by law.” Life under Article
21 has a wide meaning and constitutional provisions deal with the safeguard to negative deeds of
the state and positive obligations upon the state under the Directive Principles of State Policy.

Sovereign immunity and the fundamental rights guaranteed by the Constitution contradict each
other. Fundamental rights can be enforced by the Supreme Court under Article 32 and by the
High Court under Article 226. These Articles not only have overthrown the doctrine of sovereign
immunity but also established the defence of the doctrine of sovereign immunity by the states as
inapplicable. Hence, the states have tortious liability for violations of Article 21 by their
employees or agents.

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.
 Strict & Absolute Liability

Strict Liability
The principle of strict liability evolved in the case of Rylands v Fletcher. In the year 1868, the
principle of strict liability states that any person who keeps hazardous substances on his premises
will be held responsible if such substances escape the premises and causes any damage. Going
into the facts of the case, F had a mill on his land, and to power the mill, F built a reservoir on his
land. Due to some accident, the water from the reservoir flooded the coal mines owned by R.
Subsequently, R filed a suit against F. The Court held that the defendant built the reservoir at his
risk, and in course of it, if any accident happens then the defendant will be liable for the accident
and escape of the material.

Going by the principle laid in this case, it can be said that if a person brings on his land and
keeps some dangerous thing, and such a thing is likely to cause some damage if it escapes then
such person will be answerable for the damaged caused. The person from whose property such
substance escaped will be held accountable even when he hasn’t been negligent in keeping the
substance in his premises. The liability is imposed on him not because there is any negligence on
his part, but the substance kept on his premises is hazardous and dangerous. Based on this
judicial pronouncement, the concept of strict liability came into being. There are some essential
conditions which should be fulfilled to categorize a liability under the head of strict liability.

Essentials of Strict Liability

Dangerous Substances: The defendant will be held strictly liable only if a “dangerous”
substances escapes from his premises.

For the purpose of imposing strict liability, a dangerous substance can be defined as any
substance which will cause some mischief or harm if it escapes. Things like explosives, toxic
gasses, electricity, etc. can be termed as dangerous things.

Escape: One more essential condition to make the defendant strictly liable is that the material
should escape from the premises and shouldn’t be within the reach of the defendant after its
escape.
For instance, the defendant has some poisonous plant on his property. Leaves from the plant
enter the property of the plaintiff and is eaten by his cattle, who as a result die. The defendant
will be liable for the loss. But on the other hand, if the cattle belonging to the plaintiff enter the
premises of the defendant and eats the poisonous leaves and die, the defendant would not be
liable. In the judicial pronouncement of Reads v. Lyons & Co. it was held that if there is no
escape, the defendant cannot be held liable.

Non-natural Use: To constitute a strict liability, there should be a non-natural use of the land. In
the case of Rylands v. Fletcher, the water collected in the reservoir was considered to be a non-
natural use of the land. Storage of water for domestic use is considered to be natural use. But
storing water for the purpose of energizing a mill was considered non-natural by the Court.
When the term “non-natural” is to be considered, it should be kept in mind that there must be
some special use which increases the danger to others. Supply of cooking gas through the
pipeline, electric wiring in a house, etc. is considered to be the natural use of land. For instance,
if the defendant lights up a fire in his fireplace and a spark escapes and causes a fire, the
defendant will not be held liable as it was a natural use of the land.

These three condition needs to be satisfied simultaneously to constitute a strict liability.

Exception to the Rule of Strict Liability

There are certain exceptions to the rule of strict liability, which are-

Plaintiff’s Fault: If the plaintiff is at fault and any damage is caused, the defendant wouldn’t be
held liable, as the plaintiff himself came in contact with the dangerous thing.

In the judicial pronouncement of Ponting v Noakes, the plaintiff’s horse died after it entered the
property of the defendant and ate some poisonous leaves. The Court held that it was a wrongful
intrusion, and the defendant was not to be held strictly liable for such loss.

Act of God: The phrase “act of God” can be defined as an event which is beyond the control of
any human agency. Such acts happen exclusively due to natural reasons and cannot be prevented
even while exercising caution and foresight.The defendant wouldn’t be liable for the loss if the
dangerous substance escaped because of some unforeseen and natural event which couldn’t have
been controlled in any manner.

Act of the Third Party: The rule also doesn’t apply when the damage is caused due to the act of
a third party. The third party means that the person is neither the servant of the defendant, nor the
defendant has any contract with them or control over their work. But where the acts of the third
party can be foreseen, the defendant must take due care. Otherwise, he will be held responsible.

For instance, in the case of Box v Jubb, where the reservoir of the defendant overflowed because
a third party emptied his drain through the defendant’s reservoir, the Court held that the
defendant wouldn’t be liable.

Consent of the Plaintiff: This exception follows the principle of violenti non fit injuria.
For instance, if A and B are neighbors, and they share the same water source which is situated on
the land of A, and if the water escapes and causes damage to B, he can’t claim damages, as A
wouldn’t be liable for the damage.

Absolute Liability
The rule of absolute liability, in simple words, can be defined as the rule of strict liability minus
the exceptions. In India, the rule of absolute liability evolved in the case of MC Mehta v Union of
India.[6] This is one of the most landmark judgment which relates to the concept of absolute
liability.

The facts of the case are that some oleum gas leaked in a particular area in Delhi from industry.
Due to the leakage, many people were affected. The Apex Court then evolved the rule of
absolute liability on the rule of strict liability and stated that the defendant would be liable for the
damage caused without considering the exceptions to the strict liability rule.

According to the rule of absolute liability, if any person is engaged in an inherently dangerous or
hazardous activity, and if any harm is caused to any person due to any accident which occurred
during carrying out such inherently dangerous and hazardous activity, then the person who is
carrying out such activity will be held absolutely liable. The exception to the strict liability rule
also wouldn’t be considered. The rule laid down in the case of MC Mehta v UOI was also
followed by the Supreme Court while deciding the case of Bhopal Gas Tragedy case. To ensure
that victims of such accidents get quick relief through insurance, the Indian Legislature passed
the Public Liability Insurance Act in the year 1991.

The Public Liability Insurance Act, 1991

This act was introduced with the aim of providing immediate relief to people who are victims of
accidents in which handling of hazardous substances is involved. The main focus of the Act is to
create a public liability insurance fund which can be used to compensate the victims.

The Act states that any person who is carrying out inherently dangerous or hazardous activities
should have insurances and policies in place where he will be insured against liability to provide
compensation to the victims in case any accident takes place, and some injury occurs. This
liability is based on the principle of “no fault liability” or in other words, the rule of strict
liability and absolute liability. Inherently dangerous or hazardous substance covers under its
scope any mixture, preparation or substance which because of its properties can cause serious
harm to human beings, animals, plants, property or the environment. If any substance is
inherently dangerous or hazardous due to its handling also, then also the absolute liability of the
defendant arises.

Concluding Remarks

The rule of strict liability and absolute liability can be seen as exceptions. A person is made
liable only when he is at fault. But the principle governing these two rules is that a person can be
made liable even without his fault. This is known as the principle of “no fault liability.” Under
these rules, the liable person may not have done the act, but he’ll still be responsible for the
damage caused due to the acts. In the case of strict liability, there are some exceptions where the
defendant wouldn’t be made liable. But in the case of absolute liability, no exceptions are
provided to the defendant. The defendant will be made liable under the strict liability rule no
matter what.
 Defamation

Introduction
A man’s reputation is considered valuable property and every man has a right to protect his
reputation. This right is acknowledged as an inherent personal right and is a jus in rem i.e., a
right good against all persons in the world. Defamation refers to any oral or written statement
made by a person which damages the reputation of another person. As per Black’s Law
Dictionary, defamation means “The offence of injuring a person’s character, fame, or reputation
by false and malicious statements”. If the statement made is written and is published, then it is
“libel”. If the defamatory statement is spoken, then it is a “slander”.

Slander
Libel

It is addressed to the eyes. It is addressed to the ears.

The defamatory statement is made by
The defamatory statement is
spoken words or some other
made in some permanent and
transitory form, whether visible or
visible form, such as writing,
audible, such as gestures, hissing or
printing, pictures and effigies.
such other things.
It is a civil injury only and not a
It is an actionable tort as well as
criminal offence except in certain
a criminal offence.
cases.
It is actionable per se (in itself)
It is actionable only on proof of
i.e., without proof of actual
actual damage.
damage.

Elements of Defamation

 The Statement should be made- A statement can be made by words either spoken or
intended to be read, or by signs or by visible representations. For example, A is asked
who stole B’s diamond ring. A points to C, intending to cause everybody to believe
that C stole the diamond ring. This is defamation.
 The Statement must refer to the plaintiff- The defamatory statement must refer to the
person, class of persons or the trustees of a company. The reference may be express or
implied. It is not necessary that the plaintiff has to be mentioned by name, if he can still
be recognized. The person referred to in the defamatory statement can be living or
dead, however, defamation suit on behalf of a dead person can be filed only if the
person filing the suit has an interest.
 The Statement must be defamatory- Defamation starts with someone making a
statement, and any person who makes a defamatory statement can be held liable for
defamation. A defamatory statement tends to diminish the good opinion that others
hold about the person and it has the tendency to make others look at him with a feeling
 of hatred, ridicule, fear or dislike. Abusive language may also be defamatory, for
example, to call a man hypocrite or a habitual drunkard. A few illustrations to
understand what is defamatory and what is not. To say a motorist drives negligently is
defamatory. To criticize goods is not defamation. To say that a baker’s bread is always
unwholesome is defamatory. To state that a person has not that degree of skill which he
holds himself as possessing is defamatory.
 The intention of the wrongdoer- The person making the defamatory statement knows
that there are high chances of other people believing the statement to be true and it will
result in causing injury to the reputation of the person defamed.
 The Statement should be false- A defamatory statement should be false because the
truth is a defence to defamation. If the statement made is true then there is no
defamation as the falsity of the statement is an essential ingredient of defamation. The
law does not punish anyone for speaking the truth, even if it is ugly.
 The Statement should not be privileged- In some cases, the statements may be
privileged i.e. the person who has made the statement is protected from such liability.
 The Statement must be published- For defamation to occur, the statement should be
published. The statement should be communicated to a third party. Any statement
written in a personal diary or sent as a personal message does not amount to
defamation, but if the sender knows that it is likely that a third person may read it, then
it amounts to defamation. In Mahendra Ram v. Harnandan Prasad, the defendant was
held liable because he had sent a defamatory letter written in Urdu despite knowing the
fact that the plaintiff could not read Urdu and ultimately the letter will be read by
someone else.
 The third party believes the defamatory matter to be true- The other people of the
society believe that the defamatory matter said about the plaintiff is true.
 The Statement must cause injury- The statement made should harm or injure the
plaintiff in some way. For example, the plaintiff lost his job because of the statement
made.

Publications by two or more persons

When two or more persons agree together to write or utter defamatory words of another, and one
of them writes or utters the words in the presence of others, who have so agreed, all of them may
be sued as a joint tortfeasor provided the defamatory matter has been published to persons other
than those who were acting together or the plaintiff.

Repetition of defamatory words

Generally, the person who first makes a defamatory statement is not liable if the statement is
republished by another person even though he expressly states that he is reproducing what he has
heard from some source. However, no person has the right to repeat a slanderous statement
without any justification. If a person who is aware that a defamatory statement is false and still
repeats or communicates it further, then he can also be held liable for defamation.
Defamation by omission
There may be publication by omission. Failure by a defendant authorized and able to remove
defamatory matter which is the work of another is publication by him. For example, if someone
puts up a defamatory letter on the notice board of a club and the person in charge has not
removed it within a reasonable time, then he will be accountable.

Measures of Damages In Defamatory Publication

The Court must take the following things into consideration while deciding the question of
compensation in a defamatory publication:

1. The conduct of the plaintiff.

2. His position and standing in society.
3. The nature of libel.
4. The absence or refusal of any retraction or apology of libel.
5. The whole conduct of the defendant from the date of publication of libel to the date of
the decree.
In Gorantla Venkateshwarlu v. B. Demudu, the respondent was a bank officer and was sent on
deputation to work as the Managing Director of Co-operative society. The appellant, the
President of Society sent a complaint to the Bank alleging that the respondent had illicit
connections with ladies which affected the image of the society during his tenure as the
Managing Director. The respondent sent a reply denying the allegations made against him. The
branch manager of the bank conducted an inquiry and found out that the allegations were false
and were made only with a view to see that the respondent is not deputed to inspect the affairs of
the society. The respondent filed a suit of defamation claiming damages of Rs. 20,000. The court
held that the allegations were per se defamatory and the appellant was liable to pay damages.
However, the court considered the fact that the allegations were made known only to staff and
the Bank and there was no wide publicity, so the appellant was liable to pay Rs. 5000 as
damages.

Defamation vs. Freedom of Speech

The question that arises is whether liability arising out of defamation is a violation of the right to
freedom of speech and expression. As we know that there is no specific fundamental right to
privacy, the judicial interpretation includes it as a dimension of the right to life and liberty
guaranteed under Article 21 of the Constitution. So the right to reputation also comes in the
ambit of Article 21.

In the case of Subramanian Swamy v. Union of India, a petition regarding the decriminalization
of defamation was filed. The petition challenged the constitutional validity of Section 499 and
500 of the Indian Penal Code, 1860 is an unreasonable restriction on the freedom of speech and
expression. The apex court held that criminal defamation under Section 499 and 500 did not
violate Art. 19(1)(a) as it is a reasonable restriction under Art. 19(2). The term ‘defamation’ in
Art. 19(2) includes both civil and criminal defamation. Section 499 and 500 IPC was held to be
non-discriminatory and non-arbitrary and not violative of the right to equality guaranteed under
Art. 14 of the Constitution. While in a democracy an individual has a right to criticize and
dissent, but his right under Art. 19(1)(a) is not absolute and he cannot defame another person as
that would offend the victim’s fundamental right to reputation which is an integral part of Art. 21
of the Constitution.

In Shreya Singhal v. Union of India, the petitioners challenged the validity of Section 66A of the
Information Technology Act (ITA) contending that it was not a reasonable restriction on the
freedom of speech and expression guaranteed under Art. 19(1)(a) of the Constitution. They
argued that the impugned section was unconstitutional because it provided protection against
annoyance, inconvenience, insult, injury, or criminal intimidation which is not covered in Art.
19(2). The court found section 66A of (ITA) to be vague and invalidated it on the ground of
being violative of the right to freedom of speech and expression.

Defences available against Defamation

 Justification by truth
Truth is an absolute defence. If the statement made is authentic then it does not constitute
defamation. The burden of proof is on the defendant who is claiming the defence. For instance,
X makes a statement in an interview about Y indulging in gambling and Y files a suit against
him. If X is able to justify or prove it, then Y’s claim will be dismissed. In Radheshyam Tiwari v.
Eknath, the defendant was unable to prove the facts published by him and therefore was held
liable for defamation.

 Fair and bonafide comment

Nothing is defamatory which is a fair comment in the matter of public interest. The defendant
can avail this defence when he has merely made a fair comment in a matter of public interest.
This defence is based on public policy which gives every person the right to comment and
criticize without any malicious intention the work or activities of public offices, actors, authors
and athletes as well as those whose career is based on public attention. Any fair and honest
opinion on a matter of public interest is also protected even though it is not true. There is no
definition of a matter of public interest. Generally, a matter of public interest can is a subject
which invites public attention or is open to public discussion or criticism.

The main principles relating to the defence of fair comment have been stated by Duncan and
Neill as follows:

a) the comment should be on a matter of public interest;

b) The comment must be based on facts;

c) The comment, though it can include inferences of fact, must be recognizable as a comment;
d) The comment must satisfy the following objective test; could any man honestly express that
opinion on the proved facts;

e) Even though the comment satisfies the objective test the defence can be defeated if the
plaintiff proves that the defendant was actuated by express malice.

The same approach is followed in India. Any matter or subject which attracts public attention
and is a matter of public interest. For example, A puts allegations on B of being corrupt in a
newspaper. If A is not able to prove that the allegations were true, then his comment will not be
considered fair comment.

 Fair comment and justification distinguished

The plea of fair comment is available only in respect of both facts and opinion, it is not necessary
to prove the truth of the comment. When justification is pleaded in respect of matters of opinion,
the defendant must prove not only that he honestly held the views expressed but also that they
were accurate.

 Absolute Privilege

It gives the person an absolute right to make the statement even if it is defamatory, the person is
immune from liability arising out of defamation lawsuit. Generally, absolute privilege exempts
defamatory statements made:

1. during judicial proceedings,

2. by government officials,
3. by legislators during debates in the parliament,
4. during political speeches in the parliamentary proceedings and,
5. communication between spouses.
For example, X is a member of Parliament and he gives a speech in the parliamentary
proceedings which defames Y. Here X is protected by absolute privilege. In the case of T.J.
Ponnen v. M..C. Verghese, the court held that a letter sent by a husband to his wife which
contains defamatory about the father-in-law does is not a case of defamation. It is a privileged
communication between the spouses as per Section 122 of the Indian Evidence Act, 1872.
In Chatterton v. Secretary of State for India, it was held that the letters from the Secretary of
State of India to his Parliamentary Under-Secretary providing the materials for the answer to a
parliamentary question was absolutely privileged.

Parliamentary privilege in the Indian Constitution

Article 105 and 194 of the Indian constitution gives certain rights, immunity to the members of
the Houses of Parliament. The members of the Parliament have been vested with the freedom of
speech. This freedom is different from the freedom of speech and expression guaranteed under
Art. 19(1)(a), as the freedom in Art. 105 and 194 are specifically for the members of the
Parliament and is subject to rules and orders which regulate the parliamentary proceedings. Art.
19(1)(a) does not protect an individual absolutely for what he says and is subject to reasonable
restrictions under Art. 19(2). The term freedom of speech in Art. 105 states that a member of
Parliament shall not be liable to any proceedings, civil and criminal, in any court for the
statements made in debates in the Parliament. The second clause of Art. 105 confers immunity,
inter alia, in respect of anything said in Parliament the word anything is of the widest import and
is equivalent to everything. The only limitation is that the words must be spoken during the
sitting of the Parliament. This freedom is given even to non-members like the Attorney General
of India so that every member can participate freely in the debates and discussions without any
fear. In P.V. Narsimha Rao v. State (JMM Bribery Case), the apex court held that the privilege
in Art. 105(2) which gives immunity from court proceedings extends even to taking of bribes by
the members of Parliament for the purpose of voting in a particular manner in Parliament.

 Qualified Privilege

When a person making the statement has a legal, social or moral duty to make it and the listener
has an interest in it, then the defence of qualified privilege is allowed. Following are the
instances where this defence can be availed of:

1. Reference for a job applicant,

2. Answering the police inquiries,
3. A fair criticism of a published book or film in a review,
4. communication between parents and teachers,
5. communication between employers and employees,
6. communication between traders and credit agencies are all relationships that are
protected by qualified privilege.
These privileged communications must relate to the business at hand, even if what was said was
untrue. However, this does not give a licence to say false statements, the person making the
statement must believe it to be true. This defence can fail if it is proved that the defamatory
statement was made with a malicious intention. Discussions on government and political matters
which are subjects for public debates are covered under this defence. For example, a teacher tells
the parents about the child’s habit of stealing and warns them. In this case, the teacher can take
the defence of qualified privilege as he made the statement in good faith and in the interest of the
child.

Absolute Privilege Qualified Privilege

The defendant can avail this

The defendant can avail this defence
defence even when he has
when he made the false and defamatory
made the false and defamatory
statement deliberately, but without
statement deliberately and
malice.
maliciously.

It can be used as a defence in It can be used as a defence in the

 the Parliamentary, judicial, communications made in the course of
naval, military or State legal, social or moral duty, for self-
proceedings. protection, for protection of common
interest, for the public good.

 Statement of Opinion
If the statement made is an opinion and not a statement of fact, then it cannot be defamatory. For
example, if a person says that he finds an actor ugly, the statement is just an opinion. However, if
he says that the actor is a drug addict or has had multiple affairs, then it will be a defamatory
statement. If this statement results into the actor losing work or his job and the statement made
are false, then there will be a case for defamation.

 Consent

If the plaintiff consents to the statement made, then there is no defamation. The consent of the
plaintiff gives absolute privilege to the publisher, it is immaterial whether the plaintiff knew that
the information approved for publication was defamatory or not. Consent may be given by words
or actions, including inaction. If the consent is obtained fraudulently or from a person of unsound
mind then it will be invalid.

 Censure passed in good faith by the person having lawful authority

It is not defamation of a person having over another authority either conferred by law or arising
out of the lawful contract made with another to pass in good faith any censure on the conduct of
that other in matters to which such lawful authority relates. For instance, a judge censuring the
conduct of a witness or a banker censuring the cashier of his bank or, an engineer submits a
report to the municipality that the contractor had taken away the stock of metal. If the engineer
has made the report in good faith, then he will not be liable for defamation.

 The accusation made in good faith to the authorized person

An accusation made in good faith against a person who has lawful authority over that person is
not defamation. It is not necessary for the person making allegations to prove that his allegations
were true but he must prove that there were reasonable grounds for him to believe in the
allegation. If a person signs a petition to the chairman of Lucknow Development Authority
against defective construction of houses, along with several other residents of the locality, he can
say to have acted in good faith.

Difference Between Civil Defamation And Criminal Defamation

Sr. Defamation as a Tort Defamation as a crime

 No.

It is a criminal offence, which is

1. It is a civil wrong. bailable, non-cognizable and
compoundable.

It is based on tort law- an area It has been defined as an offence

of law which has no statutes to under Section 499 and the
2. define wrongs and relies punishment for the same is given
completely on case laws to in Section 500 of the Indian
define wrongs. Penal Code, 1860.

It provides redressal to the

plaintiff by awarding damages It seeks to punish the offender
3. in the form of monetary and send a message to the society
compensation from the not to commit such an offence.
accused.

The offence of defamation has to

Damages are awarded on the
4. be established beyond a
basis of probabilities.
reasonable doubt.

The plaintiff can move to

It is generally a slow process criminal court and ask the
5.
to seek relief in India. offender to take cognizance of
his complaint.

A person found guilty can be A person found guilty can be

6. penalized only by making him punished with imprisonment up
pay damages. to two years or fine or with both.

Conclusion
The defamation law serves the purpose of protecting people from having their reputation injured
resulting from false statements made against them. However, it is still in accordance with the
right to freedom of speech and expression, as people can make true statements and give their
opinions. This area of law seeks to protect a person’s reputation from being hurt by preventing
unfair speech. The apex court has stated in various cases that the ambit of freedom of speech and
expression is “sacrosanct” but is not “absolute”. It also said that the right to life under Art. 21
includes the right to reputation of a person and it cannot be violated at the cost of the freedom of
speech of another.