VOLUME 1                                                       SPRING 2021                                                 ISSUE 2

The Syin & Sern Law Review

SHORT POST

SECTION 89: A FACADE TO ALLEVIATE THE BURDEN OF CIVIL COURTS

Anish Meduri  | Kushal Tekriwal*

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DOI

https://doi-ds.org/doilink/06.2021-68554849/SYIN & SERN/V1/I2/A5

Abstract

India has witnessed an evolution in its approach towards the application of sovereign immunity in the country. The British Rule may have brought with it these common law principles, but they certainly did not find their existence with that of the British. One of such principles is the principle of Sovereign immunity. Throughout the paper, the author has primarily focused on two questions: being a country governed solely by common law for over 200 years, how has the concept of no-sovereign-immunity been established in India and second, whether if today, the sovereign status of the Government of India is superior to the constitutionally acknowledged Rule of Law when practically applied.

With varying judgments, legislative opinions, and the absence of a codified, settled law on the grant of sovereign immunity to the government of India, this paper aims to put forth the practical and literal sustainability of both the doctrines of Sovereign Immunity and Dicey’s Rule of Law, coherently in India. The intrinsic aim of the paper is to analyze the trend of all landmark judgments (pre-independence and post-independence) and ascertain the stand of the Indian Judiciary regarding the practical application of the Doctrine of Sovereign Immunities and Dicey's Rule of Law, simultaneously.

Referred Citations

 

[1] The Code of Civil Procedure, 1908, No. 5, Acts of the Parliament, 1908 (India).

[1]Id., Order 10, Rule 1A-1C.

[1] Code of Civil Procedure (Amendment) Act, 1999, No. 46, Acts of the Parliament, 1908, §7.

[1] The Arbitration Act, 1940, No. 10, Acts of the Parliament, 1940 (India), §49.

[1] Law Commission of India, Urban Litigation Mediation as Alternative to Adjudication, Ministry of Law and Justice (Sep 28, 2020, 10:14 AM), http://lawcommissionofindia.nic.in/101-169/Report129.pdf.

[1] Justice V.S. Malimath, Committee on Reforms on Criminal Justice System, Ministry of Home Affairs (Sep 28, 11:00 AM), https://www.mha.gov.in/sites/default/files/criminal_justice_system_2.pdf.

[1] Law Commission of India, supra note 8.

[1] Justice V.S. Malimath, supra note 9.

[1] H.V. Venkatesh v. Oriental Insurance Company Ltd., ILR 2002 KAR 3666.

[1] Salem Advocate Bar Association v. Union of India, AIR 2003 SC 189.

[1] Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344.

[1] Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. Ltd, (2010) 8 SCC 24.

[1] Law Commission of India, Amendment of Section 89 of the Code of Civil Procedure, 1908 and Allied Provisions, Ministry of Law and Justice, (Sep 28, 2020, 11:15 AM), http://lawcommissionofindia.nic.in/reports/report238.pdf.

[1] Afcons Infrastructure Ltd. supra note 21 at 42.

[1] Salem Advocate Bar Association, supra note 15.

[1] The Civil Procedure Code supra note 2.

[1] Civil Procedure Rules, 1999, rule 1.4(e) (United Kingdom).

[1] Halsey v. Milton Keynes General NHS Trust, [2004] 1 WLR 3002 (United Kingdom).

[1] Lomax v. Lomax, [2019] EWCA Civ 1467 (United Kingdom).

[1] Alternative Dispute Resolution Act, 28 U. S. C. § 652(a) (1998).

[1] Salem Advocate Bar Association, supra note 15.