Should Exercise of Sovereign Function be a Defence to Police Officers?

By Sakshi Borle


The police force is an important unit that aids in maintaining peace and order in the territory of India. Each State or Union Territory has its own police department. At central level, there are enforcement agencies under Ministry of Home Affairs. Higher power and immunity rests in the hands of police authority and hence, deviance of police functioning is observed. Police brutality and custodial deaths are prevalent in many cases. 

According to the Indian Penal Code, offences by the police and other agencies come under the definition of public servants. Thus, the police officials are supplemented by immunity for defending their actions and to carry out their duties.

Sovereign Immunity

The term sovereign is derived from the Latin term “superanus” which translates to coordinative to supreme power. Sovereign Immunity is a legal doctrine by which the head of state or the sovereign is immune from a civil suit or criminal prosecution. The concept of sovereign immunity is dereived from the fact that the state cannot commit a legal wrong. It is extracted from the legal maxim “rex non potest peccare” that translates to “the king can do no wrong”. 

The Common Law of British Jurisprudence describes the idea of sovereign immunity that the king does no wrong and cannot be held guilty for his subordinate’s ignorance or misbehavior. Another feature of this doctrine is that without consent, State cannot be tried in its own court. 

Distinction between Sovereign and Non-Sovereign Functions

In the case of Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India (1861) 5 Bom HCR App I, interpretations were made regarding the difference between sovereign and non-sovereign functions of the state. The landmark judgment that a state shall only be liable for its non-sovereign actions was established in this case. 

Sovereign functions of the state are understood as, for which the state is not held liable in the court of law. These functions broadly include defence of the country, maintenance of  the country’s military forces, maintaining peace within the territory of India. Sovereign functions also include collection of revenue, maintenance of law and order i.e actions of police officials and public servants. 

Whereas non-sovereign functions are the ones that are subject to the jurisdiction of a civil court and if a tortious or contractual liability is filed against the state, the state shall be held accountable. 

However, it is believed that differentiating between these functions is subjective. Whether the state is immune from prosecution is circumstantial and decided on the grounds of facts involved in the case and role of the court. 

Immunity to Police Officials in India

Under the Constitution of India, police are considered as a State subject. The police officials are provided immunity for carrying out sovereign functions like mainteinace of law and order, taxation, etc.

The police as a unit to adiminister the state came into existence since the colonial period. The British established Police Act of 1861 which vested power in the state police authorities. According to this Act, police were subject to general control and direction under the District Magistrate. The roots of police immunity were laid down from here as the police were unaccountable to anyone expect their administrative seniors. The police organisation was structured in a way that the British officials would occupy the senior most positions, subsequently the natives occupied the junior slots. The Police Act of 1861 mentions the term ‘inferior officers’ for lower ranks in the department. The structuring of  department was based on feudal values and British interests. The lower ranked officials were supposed to follow the orders blindly. Thus, it was obsereved that the department lacked in performing the duties. 

In the Post Independence era, the same act continued to govern the department hence the situation was quite similar. Additionally some state goverenments passed legislations for Police Act. For eg. Mahrashtra and Gujrat Police forces are goverened by the Bombay Police Act of 1951

Section 197 and 132 of the Code for Criminal Procedure describes that if a public servant is accused of committing an offence while performing his official job unless the Centre has sanctioned, no court shall take cognizance of the matter. No prosecution of law enforcement agents can begin without the State’s prior approval. The provision aims to prevent police officers from being demoralised by filing false and offensive complains against them while discharging their duty. The state assures immunity to police officials concering various sovereign functions and it is evident that the officials misuse this power. 

The Hon’ble Court has ruled that this protection applies only to actions taken in the course of official duties and that actions taken outside of those powers are not covered under the ambit of Section 197 and 132. The main police reforms were laid down in the case of Prakash Singh v Union of Indiathe judgement suggested to establish police reforms based on seven directives. The reforms were aimed to make  police force more structured and accountable. 

However, no immunity is granted in case of violation of fundamental rights. In the case of D.K. Basu vs State of West Bengal, instances of custodial death and police negligence were noted. In this case, the petitioner stated that custodial torture is a violation of the fundamental rights and may also lead to the death of the accused. Fundamental rights are guaranteed to all the citizens and hence this is clearly an abuse of power. The Hon’ble Court held that the police offcials have authority to arrest but the use of third-degree measures is inhumane and unjustified. 

Sovereign Immunity as a Defence 

In the landmark judgment of  Rudal Shah v. State of Bihar & ANR, it was laid down that in case of violation of fundamental right, the aggrieved party has the right to receive compensation. The decision was held to protect and preserve a person’s fundamental right with the distinction of sovereign and non-sovereign functions. A breach of a constitutional right can result in civil liability that can be enforced in a civil court. It also noted a theory of liability under which a violation of the right to personal liberty might result in civil liability. Hence, it is understood that the defence of immunity is not an absolute one and subject to variations. 

The primary reason for providing immunity to police officials is to abide by their duties and provide a hinderance free process to discharge their duties. But the misuse of this provision is not a rare one and is evident since ages. 

In the recent case of 84 years old Dr. Stan Swamy who suffered from Parkisnson’s disease and was a victim of custodial death, the accountability of police officials is questioned. Custodial torture and deaths are prevalent but unnoticed. 

According to the data of National Human Rights Commission (NHRC), it was found that a total of 1,067 people died in custody in the first five months of this year (2021). This clearly shows abuse of power by the authorites.

Another incidence of police brutality was evident in the death of 59 year-old Jeyaraj and 31-year-old Benicks. According to the eyewitnesses, the father and son duo were victims of severe police torture and this ulitmately lead to their death. 

These incidences are inhumane and an absolute violation of fundamental rights. No immunity shall suffice to avoid the police officials being held accountable. 


Providing immunity to the police forces is necessary to carry out their official duties but this immunity shall not be absolute in nature. In the cases of violation of civil and constitutional rights, the victim should be given a fair chance to approach the courts. The defence of immunity shall not be blindly followed as many incidences of police deviance are significant. Hence, the need to regulate and reconsider the immunity of police officials arises.  

There should be reforms in current scenarios as to consider police officials accountable for their ignorance. Public faith lies in the police force and the proper functioning and ensuring peaceful order is the primary duty of officials. The reforms must include creation of statutory institutional procedures to ensure that the state government’s power of supervision over the police force is limited in order to ensure that police performance is in strict compliance with the law.

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