SOVEREIGN IMMUNITY RESTS ON TWO PRINCIPLES

Sovereign immunity rests on two principles.  The one expressed in maxima par in parem non habet jurisdictionem is concerned with the status of equality.  The other principle on which immunity is based is that of non-intervention in the internal affairs of other States.  In the days of trade and commerce, international interdependence and international opening of embassies, in granting sanction the growth of a national law in this aspect has to be borne in mind.

. Immunity of foreign States

The interpretation of the provisions of Code of Civil Procedure must be in consonance with the basic principles of the Indian Constitution. . Immunity of foreign States to be sued in the domestic forum of another State was and perhaps still is part of the general international law and international order and it is not necessary for the present purpose to consider its origin, development and the trends in different countries. As Professor H. Lauterpacht writes in "The British Yearbook of International Law 1951" (Volume 28) on "The Problem of Jurisdictional Immunities of Foreign States" at page 230 that the assumption of jurisdiction over foreign states by the domestic court was considered at one point of time to be contrary to the dignity of the foreign states and as such inconsistent with the international courtesy and the amity of international relations. This has been in the past a persistent theme of judicial decisions. It may be noted that in so far as the doctrine of immunity owed its acceptance to the decisions of the courts of the United States it is explained to some extent by the fact that it was by reference to dignity of the states of the Union that their immunity from, suit was urged insistently and repetitiosly. During the debates preceding the adoption of the Virginian Convention in 1978, John Marshall stressed the element of indignity inflicted upon a state by making it a defendant in an action. (Elliot, Debates - 2nd Ed. 1836, page 555). It may be of historical amusement specially in the context of Indian Constitution and the growth and the history of the Indian Constitution to note that in the leading case of Chisholm v. Georgia, (1793) 2 Dall 419, 425 the main argument for the defendant state was that it was a 'degradation of sovereignty in the states to submit to the supreme judiciary of the United States. The courts of the United States have gone to the length of relying on the argument of dignity in the matter of immunity of foreign states from taxation. In England, 'dignity', coupled or identified with 'independence', played an important part as an explanation of the doctrine of immunity of foreign states.