Administrative Law Project

On

The distinction between sovereign function and non-sovereign

functions and its relevance.

Submitted to:

Dr. Kaumudhi Challa

Faculty of Administrative Law

Submitted by:

Taruna Shandilya
Roll no. 180

Semester VI, Section B

B.A. LLB (Hons.)

Submitted on:
March 6, 2018

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Abhanpur, New Raipur (C.G.) – 492002

 DECLARATION OF ORIGINALITY

I, Taruna Shandilya, have undergone research of the project work titled “The distinction
between sovereign function and non-sovereign functions and its relevance”, as a student
of Jurisprudence. I hereby declare that this Research Project has been prepared by the student
for academic purpose only, and is the outcome of the investigation done by me and also
prepared by myself under the supervision of Dr. Kaumudhi Challa, Faculty of Administrative
Law, Hidayatullah National Law University, Raipur. The views expressed in the report are
personal to the student and do not reflect the views of any authority or any other person, and
do not bind the statute in any manner.

I also declare that this Research Paper or any part, thereof has not been or is not being
submitted elsewhere for the award of any degree or Diploma. This report is the intellectual
property of the on the part of student research work, and the same or any part thereof may not
be used in any manner whatsoever in writing.

Taruna Shandilya
Roll. No. 180
Semester VI, Section B

I
 CERTIFICATE OF ORIGINALITY

This is to certify that Taruna Shandilya, Roll Number 180, student of Semester VI, Section B
of B.A.LL.B.(Hons.), Hidayatullah National Law University, New Raipur (Chhattisgarh) has
undergone research of the project work titled “The distinction between sovereign function
and non-sovereign functions and its relevance”, in partial fulfillment of the subject of
Jurisprudence. His performance in research work is up to the level.

Place: New Raipur ………………………… ……………………………

Date: 06.03.2018 Dr.Kaumudhi Challa.

(Faculty- Administrative Law)

Hidayatullah National Law University, New Raipur, Chhattisgarh

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 ACKNOWLEDGMENT

I feel highly elated to work on the project “The distinction between sovereign function and
non-sovereign functions and its relevance”. The practical realisation of the project has
obligated the assistance of many persons. Firstly, I express my deepest gratitude towards Dr.
Kaumudhi Challa, Faculty of Administrative Law, to provide me with the opportunity to
work on this project. Her able guidance and supervision in terms of her lectures were of
extreme help in understanding and carrying out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.

Some typography or printing errors might have crept in, which are deeply regretted. I would
be grateful to receive comments and suggestions to further improve this project.

Taruna Shandilya
Roll. No. 180
Semester VI, Section B

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 TABLE OF CONTENTS

Serial No. Topic Page No.

1. Declaration i

2. Certificate ii

3. Acknowledgment iii

5. List of abbreviations iv

6. Chapter -1 Introduction 1

7. Research Methodology 2

8. Chapter - 2 Sovereign and Non sovereign functions need for 5

distinction

9. Chapter – 3 Need for Crown Immunity 11

10. Conclusion 13

11. Suggestion 13

12.
Bibliography 16
 Table of abbreviations

1. AIR All India Reporter

2. Anr. Another
3. Ed. Edition
4. Ors. Others
5. P. Page
6. SC Supreme Court
7. Sec. Section
8. V. Versus
9. Vol. Volume
 CHAPTER I: INTRODUCTION

India is a Union of States and is governed by a written constitution which came into force on
26 November 1949. India consists of 25 states and 7 Union Territories. Due to its colonial
heritage, India follows the Anglo-Saxon common law justice system. Article 246 of the
Constitution provides for three lists which are enumerated in 7th Schedule of the
Constitution. List-1 is the Union List which enumerates the subjects on which the Parliament
of India has exclusive power to make the laws. List-2 is the State List which enumerates the
subjects on which the legislature of a state has the power to make laws. The third list is the
Concurrent List which enumerates subjects on which both the Indian Parliament and the
Legislatures of the state can enact laws, but if there is any conflict or inconsistency between
the laws made by the Indian Parliament and the legislature of any state, the law enacted by
the Union Parliament will have overriding effect.

The legal institutions of Great Britain have long served as the well-spring of American law.
In drafting the Federal Constitution, the framers embellished British conceptions of a
government of separated powers1, and drew on the enactments of Parliament. For many years
after the Revolution, American courts sought rules of decision in the English common law. In
the intervening decades, American and English judges have not forgotten their common
heritage-frequently looking to the development of legal doctrine in the other's country as
fertile ground for comparative study. Over the years, this spiritual and legal cousinage has
been fostered by Anglo American Interchanges.

The most striking dissimilarity between the English and American criminal systems is their
divergent methods of bringing prosecutions. This Article will discuss one aspect of that
difference: the method by which prosecutors decide to commence actions against individuals
suspected of criminal activities2. Unlike in most countries, the United States criminal justice
system is not represented by a single, all-encompassing institution. Rather, it is a network of
criminal justice systems at the federal, state, and special jurisdictional levels like military
courts and territorial courts. Criminal laws at these levels vary, although these are all based
on the US Constitution.

1
Kaufman, The Essence of Judicial Independence, 80 Colum. L. Rev. 671, 700 (1980)
2
The legal system of England and Wales differs from those of Scotland and Northern Ireland. Reference Division, British Information
Services, The Legal Systems of Britain 1-2 (1976). Only English and Welsh criminal practice will be discussed here.

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 RESEARCH METHODOLOGY

Problem of the Study

Concept of Sovereign has been one of the most complex concepts, consuming a lot of
scholarly ink, yet remaining enigmatic, cryptic and imprecise. Sovereign is a word of
ambiguous import. There are various aspects of Sovereign. Over the years, different time and
different civilizations have produced different definitions and different concept of Sovereign.
The earliest form of Sovereign was found in the king.

Rationale of the study

Before Independence the Privy Council was the highest Court for appeal from India in
constitutional matters till 1949. Every case of constitutionality handle by the Privy Council.

The concept of justice in the Hindu philosophy which is embodied in the concept of Dharma
binds an individual’s action even in today’s time. Followed by the concept of Dharma, is the
Indian Constitution which has its own set of ideas regarding justice. Preamble to the
Constitution of India promotes Justice in a man’s social, economic and political sphere.

Objective

The objectives of this project are:

1. To study in brief the concept of Sovereignty in light of the maxim “King can do no
wrong”.
2. To study the concept of Sovereign and non sovereign functions.
3. To know the position of Crown immunity in UK & USA.

Nature of the Study

The nature of the study in this project is doctrinal and is primarily descriptive and analytical.
This project is largely based on primary sources of data such as cases and reports of
committees, however secondary & electronic sources of data have been referred to a great
extent. Books, case laws, journals & other reference as guided by faculty of Administrative
Law are primarily used for the completion of this project.

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Chapterization

This project has been divided into 4 chapters. Chapter 1 comprises of Introduction and
Research Methodology. Chapter 2 includes the concept of sovereign functions and non
sovereign functions distinction Chapter 3 discusses the position of crown immunity in UK &
USA. At last Chapter 4 concludes this project along with suggestion and bibiliography.

Time Limit

It took the me roughly 10-15 days to complete this project in its entirety.

Limitation of the Study

Due to paucity in time and resources the author has dealt in brief the concept of Crown
immunity, Dharma and Justice in Indian philosophy and the concept of Justice in the
Constitution of India. A detailed account has not been provided as it would have been beyond
the scope of the topic of the project and only relevant aspect of his concept has been
discussed.

Contribution- The Study of the history helps us to know more about the condition of the
Crown immunity in UK & USA, and we come to know how the concept of sovereign and non
sovereign functions in our country and what all controversies it faced during its time of
inception. The research done will help in spreading awareness about the inception and history
of Sovereignty in India.

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 REVIEW OF LITERATURE

Literature Review is the documentation of a comprehensive review of the published and

unpublished work from secondary sources of data in the areas of specific interest to the
researcher. It is an extensive survey of all available past studies relevant to the field of
investigation. It gives us knowledge about what others have found out in the related field of
study and how they have done so.

After an extensive survey of available past studies relevant to the field of investigation, it has
been tried to accumulate the knowledge about what others have found out in the related field of
study and how they have done so. They have helped immensely in gaining background
knowledge of the research topic, in identifying the concepts relating to it, potential
relationships between them and identifying appropriate methodology, research design, methods
of measuring concepts and techniques of analysis, and also in identifying data sources used by
other researchers.

The following literature has helped me in preparing of this research project-

 C. K.Takwani, Lectures on Administrative Law, Eastern Book Company (5th ed. 2012)
- The learned authors work talks about the fundamental principles of Administrative
Law and how they have developed through judicial process. The book helped me to find
out about the multiple functions performed by the executive.
 M. P. Jain and S. N. Jain, Principles of Administrative Law, LexisNexis (6thed. 2007) –
The learned authors work gave me an insight about the meaning and definition of
Sovereign.
 SurajanChakravarti, Administrative Law, State Mutual Book & Periodical Service,
Limited (2nd ed. 1988) – This Book helped me find out about the Sovereign and Non
sovereign functions in detail and also provided some insight in extent of it.

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 CHAPTER II: PROSECUTORIAL SYSTEM IN INDIA

Prosecutors hold a commanding position and play an essential role in the Criminal Justice
System. The Code of Criminal Procedure, 1973 provided the basic framework of the
hierarchy of criminal courts as well as Public Prosecutors. This law also governs the
enforcement of the substantive criminal law i.e. Indian Penal Code. Prosecutors are not
governed by any single law in India.Prosecuting agents will function for criminal proceedings
and will not interfere in any judicial matter. They are authorized by law to require proper
investigation in a particular case. They can challenge any decision from the court and require
proper proof and basis of any decision as they are acting for the public interest. They are the
representatives of the public in the court of law. They need to honour the administration of
justice by prosecuting only those who need to be prosecuted and issuing the use of non-
punitive methods of treatment of those who are liable for that punishment.

In the case of Jaipal Singh Naresh V State of Uttar Pradesh, Allahabad High Court held
that the Prosecutor is not under a duty to represent police but has a duty to represent Crown.
He should perform his duty without favour or fear. It is the intention of legislation that
prosecution and police are to be kept separate for proper investigation.

The primary investigative unit is the police station in India. After due investigation, charge-
sheets are filed in the courts concerned as per the provisions of the Code. The cases are
prosecuted by the public prosecutors appointed by the state governments. Prior to the
enactment of the Criminal Procedure Code of 1973, public prosecutors were attached to the
police department and they were responsible to the District Superintendent of Police.
However, after the new Code of Criminal Procedure came into force in 1973, the prosecution
wing has been totally detached from the police department. The prosecution wing in a state is
now headed by an officer designated as the Director of Prosecutions. In some of the states, he
is a senior police officer and in others, he is a judicial officer of the rank of District and
Sessions Judge. He is assisted by a number of Additional Directors, Deputy Directors and
Assistant Directors, etc. At the district level, there are two levels of public prosecutors, i.e.,
the Assistant Public Prosecutor, Grade-I and the Assistant Public Prosecutor, Grade-II. They
appear in the Courts of Magistrates. The Director of Prosecutions is responsible for the
prosecution of cases in the Magisterial Courts. In Sessions Courts, the cases are prosecuted
by Public Prosecutors3.

3
Joint Director, Central Bureau of Investigation, India.

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The District Magistrate prepares a panel of suitable lawyers in consultation with the Sessions
Judge to be appointed as public prosecutors. The state government appoints public
prosecutors out of the panel prepared by the District Magistrate and the Sessions Judge. It is
important to mention that public prosecutors who prosecute cases in the Sessions Courts do
not fall under the jurisdiction and control of the Director of Prosecutions. The state
government also appoints public prosecutors in the High Court. The appointments are made
in consultation with the High Court as per section 24 of the Code. The most senior law officer
in a state is the Advocate General who is a constitutional authority. He is appointed by the
governor of a state under Article 165. He has the authority to address any court in the state.
Under section 24 of the Cr.P.C., the central government may also appoint one or more public
prosecutors in the High Court or in the district courts for the purpose of conducting any case
or class of cases in any district or local area. The most senior law officer of the Government
of India is the Attorney General for India, who is a presidential appointee under Article 76.
He has the authority to address any court in the country.

The Assistant Public Prosecutors, Grade-I and Grade-II, are appointed by a state government
on the basis of a competitive examination conducted by the State Public Service Commission.
They are law graduates falling within a specified age group. They join as Assistant Public
Prosecutors Grade-II and appear in the Courts of Magistrates. They are promoted to Assistant
Public Prosecutors, Grade-I, and generally appear in the Courts of Chief Judicial Magistrates.
On further promotion, they become Assistant Directors of Prosecution and can go up to the
level of Additional Director of Prosecution. They, however, do not appear in the Sessions
Court. As mentioned above, the District Magistrate in consultation with the Sessions Judge
prepares a panel of lawyers with a minimum of 7 years of experience to be appointed as
public prosecutors. They are so appointed by the state government. They plead the cases on
behalf of the state government in the Sessions Courts. They have tenure appointments and are
not permanent employees of the state government. They are paid an honorarium (not salary)
by the state government. There is now a move to integrate the aforesaid two cadres of public
prosecutors with the object to improving the promotion prospects of law officers who join at
the lowest level, i.e., Assistant Public Prosecutor, Grade-II. The idea is to promote the
Assistant Public Prosecutors, Grade-I to Additional Public Prosecutor or Public Prosecutor,
as the case may be, to plead cases in the Sessions Court. If it comes about, this will obliterate
the need for appointing lawyers from the open market as public prosecutors to plead cases in
the Sessions Courts.

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The courts are constituted by the state government under the Code and cases are prosecuted
by public prosecutors appointed by the state government or the central government as the
case may be. Even though the National Crime Records Bureau has been collecting data about
the disposal of cases by the courts, the statistics do not seem to be authentic. It has been aptly
remarked by a wisecrack that the place of a nation on the civilization scale is to be
determined by the manner in which its criminal laws are enforced. Since all the elements of
the public justice system are inter-dependent, even the strictest enforcement of law by the
police agency will not deliver the goods unless it is supported by the judicial system by way
of prompt disposals. The role of the public prosecutor and his performance is also to be
judged by his ability to assist the court in this regard. It is in this context that we are going to
have a look at the overall pendency of cases in the country.

According to an estimate, there are 21.8 million cases pending in the subordinate courts.
About 3.1 million cases are pending in the High Courts. The Supreme Court has a pendency
of 22,000 cases only. There are about 11,000 courts working in the country. The number of
pending trial cases under the IPC was 52.8 lacs in 1995 which increased to 56.2 lacs in 1996.
Of these, 21.6 per cent have been pending for more than 8 years. The number of cases
pending trial for more than 8 years increased from 10.7 lacs in 1995 to 12.11 lacs in 1996,
showing an increase of 13.3 per cent. The pendency of trial cases during the decade 1985-
1995 has piled up more than double with a growth rate of 10.6 per cent per annum. Apart
from the IPC cases mentioned above, 69.01 lac SLL cases were awaiting disposal by criminal
courts in the country at the beginning of 1995. The disposal percentage in 1995 was 52.2 per
cent. As against this, the percentage of disposal of IPC cases was only 18.2 per cent. This is
largely explained by the fact that the SLL cases pertain to violations of minor acts like the
Gambling Act, the Prohibition Act, and the Motor Vehicle Act and there are tried summarily,
resulting in quicker disposals. As mentioned earlier, the Directorate of Prosecutions in some
states is under the control of the Home Department, while in others is under the control of the
Law Department.

CHAPTER III- PROSECUTORIAL SYSTEM IN USA

The term "prosecutorial discretion" refers to the fact that under American law, government
prosecuting attorneys have nearly absolute and unreviewable power to choose whether or not
to bring criminal charges, and what charges to bring, in cases where the evidence would

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justify charges. This authority provides the essential underpinning to the prevailing practice
of plea bargaining, and guarantees that American prosecutors are among the most powerful of
public officials. It also provides a significant opportunity for leniency and mercy in a system
that is frequently marked by broad and harsh criminal laws, and, increasingly in the last
decades of the twentieth century, by legislative limitations on judges' sentencing discretion4.

The grant of broad discretion to prosecutors is so deeply ingrained in American law that U.S.
lawyers often assume that prosecutorial discretion is inevitable. In fact, some countries in
Europe and Latin America adhere to the opposite principle of "mandatory prosecution,"
maintaining, at least in principle, that prosecutors have a duty to bring any charge that is
supported by evidence developed by the police or presented by citizens. The extent to which
that principle is actually followed in practice in these countries has been controversial. Some
scholars have argued that practices analogous to American prosecutorial discretion and plea
bargaining generally exist, more or less covertly, in such countries, or that the discretion
exercised by prosecutors in the United States is effectively exercised there by the police
instead5.

The general acceptance of prosecutorial discretion in the United States is closely linked to our
adversarial system of justice. The adversarial principle is generally taken to mean that judges
in American courts are not commissioned to investigate cases, determine the truth, and
provide justice. Instead, the courts are understood as dispute-settling institutions, in which
judges take a more passive role, considering only such facts as are presented to them by the
parties, and deciding only such issues as are necessary to resolve the disputes thus presented.
Primary responsibility for defining the nature of the dispute, and presenting the relevant facts,
lies with the parties and their lawyers. More specifically, criminal cases are seen as disputes
between the government and individuals accused of crime. Just as a plaintiff in a civil suit has
the option of withdrawing his claim, or settling it privately with the defendant—in which case
the court has no further role—so in a criminal case, the prosecutor, as representative of the
government, can decide that the interests of his client are best served by not taking any legal
action at all, or by settling for relief short of what could in theory be available if litigation
were pursued to its final conclusion. On essentially the same reasoning, the American system
recognizes a formal plea of guilty by a criminal defendant as a conclusive resolution of the

4
Public Prosecution in England and Wales, 1974 Crim.
5
Criminal Justice Act, 1967, c. 80.

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case that removes the need for judicial inquiry into the facts. If the plaintiff government and
the defendant are essentially in agreement about whether the defendant should be punished,
there is no dispute, and nothing for the courts to do. The authority of both prosecutor and
defendant to waive or settle their potential differences thus gives rise to the potential for plea
bargaining, in which the prosecutor agrees to waive some potential charges or sanctions in
return for the defendant's agreement not to contest others.

The prosecutor6 thus plays a pivotal role in the administration of justice in America. To the
extent that the prosecutor is the lawyer for the state, her client is not the police department or
the individual victim of a crime, but society itself. As a practical matter, moreover, the
prosecutor is not merely the attorney who represents society's interest in court, but also the
public official whose job it is to decide, as a substantive matter, the extent of society's interest
in seeking punishment. The prosecutor is thus not merely a barrister, exercising technical
skill to advocate positions decided by someone else, but a significant public official,
exercising political authority on behalf of the state to determine its substantive position.
Consequently, the prosecutor is normally a politically responsible actor. In most states, the
chief prosecutor of a district is elected, usually at the county level. (Often, the state attorney
general, usually also an elected official, has some—generally limited—degree of authority
over local district attorneys.) In the federal system, the chief prosecutor in a judicial district
(the United States attorney) is appointed by the president, subject to confirmation by the
Senate. While not directly elected, she is responsible to the people through the elected
president and her Attorney General. As a practical matter, in both state and federal systems,
the locally elected district attorney or the local United States attorney is usually the final
authority on prosecutorial decisions in individual cases7.

CHAPTER III : PROSECUTORIAL SYSTEM IN UK

The United Kingdom is made up of three jurisdictions and each has a very different public
prosecution service. This chapter covers the public prosecution service in England & Wales: a brief

6
Prosecution of Offences Regulations, 1978 No. 1357 (L.33), 1978 Stat. Inst. 4111-12.
7
Prosecution of Offences Act, 1908, 8 Edw. 7, c. 3; Prosecution of Offences Act, 1884, 47 & 48 Vict., c. 58; Prosecution of Offences Act,
1879, 42 & 43 Vict., c. 22. 3.

9
description of the Scottish system is at Appendix: the Northern Ireland system is not covered here 8.
The England and Wales public prosecution service is called the Crown Prosecution Service (CPS) and
is very different from the two other UK services and from prosecution services in Europe. The main
differences are:

 The CPS was set up in 1986. It has none of the history or the power of other European
prosecution systems. Its powers and relationships with other justice agencies are still
evolving.
 The police remain the stronger body in investigating offences and to some extent in
sanctioning offenders.
 There is no Ministry of Justice, as such. The various agencies of the criminal justice system
come under three different ministries and much cooperation is informal rather than
statutory.
 There is no Penal Code as such: criminal law is made up of statute law passed by parliament
and common law and practices which pay authority to precedents and practices that have
become accepted over the years.
 There are many non-CPS prosecuting authorities in England & Wales that deal mainly,
although not exclusively, with less serious and regulatory offences.
 The England & Wales system contains much more discretion about processing cases than
many other jurisdictions.
 There is no system of examining magistrates in England & Wales.
 England & Wales has an adversarial system of justice: i.e. lawyers do not so much aim to get
at the truth behind an event, but to prove a case to acceptable standards.

Given its short history, the CPS has spent much of its life in pressing for the correct structure
and resources to do the job it was set up for. Having achieved this, the CPS is now beginning to
modify its relationships with other CJ agencies, especially the police. Up to now, it has not been
very much influenced by other prosecution systems within the EU. However, over the last two
or three years there are signs that the future may see important changes in the CPS role, with
more CPS influence on investigation and on sanctions. Such changes would come about as part
of the UK government’s desire to bring the criminal justice system as a whole up to date 9. This
was summed up in September 2005 when the British Prime Minister talked about 21st century

8
The Northern Ireland Public Prosecution Service is very new and was launched on 13 June 2005. A brief description of the system can be
found at www.cjsni.gov.uk/index.cfm/ area/information/page/ppservice.
9
The trends in this chart have been estimated from published material. They are accurate to show broad trends in crime, courts and prison
numbers but should not be used for any other purposes.

10
 problems being met by 19th century structures. Such changes will be likely to come about as a
result of the government’s desires to see more offenders brought to justice, more cases
diverted from the courts, and a more efficient Criminal Justice System. The justification for these
policies has come about through the continuing high crime rate and a falling rate of clear-ups by
the police10.

CONCLUSION

In the final analysis, a public prosecutor is an officer of the court and is required to render
assistance to the court to arrive at a just and equitable decision. He is also required to be fair
to the opposite party. His guiding principle should be not so much the letter of law, but the
spirit of law based on prudence, common sense and equity. A society which is governed by

10
Crime as recorded by the police. There have been many changes in the definitions over this period, especially since 1995. For the most
recent material on recorded crime in England & Wales see Nicholas, Povey, Walker & Kershaw, Crime in England and Wales 2004/5,
downloadable from www.homeoffice.gov.uk/rds.

11
the letter of law does not fully exploit its human potentialities. I conclude by quoting from
Russian Nobel laureate Solzhenitsyn, A society which is based upon the letter of law, and
never reaches any higher is taking very scarce advantage of high level of human possibilities.
The letter of the law is too cold to have any beneficial influences on society. Whenever the
issue of life is woven in legalist relations, there is an atmosphere of moral mediocrity,
paralyzing man’s noblest impulses.

In the United States, the prosecutor bridges the gap between the police and the courts by
exercising his independent judgment concerning the need to institute criminal proceedings in
a particular case. His role is crucial to the fair administration of justice, for an ill-founded
decision to prosecute can be disastrous -both for the accused and for the criminal justice
system. His independence from governmental investigative agencies contributes to the
impartial discharge of a prosecutor's responsibilities.

In England, however, the police make the decision to prosecute in virtually all criminal cases.
Without disparaging the dedication of British policemen, one must concede that their
involvement in criminal investigations prevents their objective assessment of the many
considerations for and against instituting criminal actions. Admittedly, the American
prosecutorial system may not provide the perfect model for the English. Adopting the
Scottish system of the Procurator Fiscal, or expanding the duties of the Director of Public
Prosecutions are alternatives worth exploring. My experiences as a participant in the Anglo-
American Interchange, however, suggest that the British police should carry a smaller share
of the burden in deciding to prosecute criminal suspects.

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 BIBLIOGRAPHY

 Davis, Kenneth C. Discretionary Justice: A Preliminary Inquiry. Baton Rouge, La.:

Louisiana State University Press, 1969.
 Lafave, Wayne R. "The Prosecutor's Discretion In The United States." American
Journal Of Comparative Law 18 (1970): 532–548.
 Lynch, Gerard E. "Our Administrative System Of Criminal Justice." Fordham Law
Review (1998): 2217.

Internet Sources

1. www.academia.org
2. www.heinonline.org
3. www.jstor.org

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