The validity of those acts cannot be questioned in municipal courts. The sanction behind these Acts are not law but of sovereign power. Acts done by the public officials, if done with the prior approval of the State may render their acts as an act of State. The acts of state affects only foreign nationals living in a country. It is not available against the citizens of own country. The citizens of the country are governed by its own laws.
Acts done by the rulers of independent States or acts done in exercise of political power to the people of another State are acts of State and, therefore, they are exempt from liability. If the government Indià acquires a foreign territory and annexes it to the Indian territory the residents of than territory the residents of that territory or that State cannot take any action against the Indian Government (Secretary of State v. Kamakshi Bai Sahba, (1859) 7 MLA 476; Firm Bansidhar v. State of Rajasthan, AIR 1967 SC 40). If an injury is caused to a foreign nationals by an act done in exercisse of its Sovereign power, he cannot take any action against it, such as, declaration of war and peace, blocked, treaty of peace, acquisition of foreign territory, cession of foreign territory, etc.
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In such cases the foreign national to whom injury had been caused by such acts could seek remedy through diplomatic means.
This exemption of the sovereign is based on the famous maxim of English law-The king can do no wrong. This means that the King does not do any thing himself but all his acts are done by his subordinate servants. Acts by the State employees has the prior approval of the State. The State can also subsequently ratify the acts done by its servants.
Thus the following are the essentials of an Acts of State-
(1) Such acts are done by the representatives of State
(2) Injury is caused to some other State or its subjects.
(3) Such acts are, done either with prior sanction of State or subsequently ratified by the State.
(4) Such acts cannot be done against citizens of their own country.
But it is to be noted that in an action by a British Citizen for tort no public authority can plead the defence of ‘act of State’. Thus if a British citizen kills another British citizen or destroys his property, he cannot take the defence of the order of the sovereign authority, unless it is proved that the order was given to do a lawful act. Whether such an order was given for doing lawful act or unlawful act could be determined by municipal courts. In such cases the doctrine “the king can do no wrong” does not apply and the person who has caused the damage would be triable for damages.
Position in India: In India, the English law relating to act of State is followed. An act of state is not available against a citizen. Acts of State are used against another sovereign State of its subjects, and is based on policy considerations and not on law and therefore they are not justifiable by the municipal courts.
The act of State’ is not available against its own subjects. They are governed by the general law of the country. This principle was recognised by the Privy Council in the case of Forester v. Secretary of State. In that case the resumption of the estate of Begum Samrn on the allegation that the tenure had been determined and to the seizure of arms and military stores of the Begum was challenged. The Privy Council held that the action of the Government.did not amount to an act of State. The suit in respect of the land, however, failed as the appellant failed to establish his title. But suit relating to arms and store succeeded and a decree was passed declaring that the appellants were entitled to recover from the government the value of the arms and military stores seized.
When India annexed Goa, Daman and Diu and merged with the Dominion of India, many questions relating to the post constitution period relating to the rights of the people residing in those territories were raised against the Government of India. The Supreme Court of India following the principles laid down by the Privy Council in dealing with those cases. The points which emerged from the judgments of the Supreme Court in various cases (Dalmia Dadri Cement Co. Ltd. v. C.I.T., AIR 1958 SC 816; State of Saurashtra v. Memon Haji Ismail, AIR 1959 SC 1383) may be summarized as follows:
(1) The taking over of sovereign power by a State in respect of new territory, be it by conquest, annexation or cession following upon a treaty, is an act of state;
(2) The taking over of the full sovereign power may be spread over a member of years as a result of historical process.
(3) Sovereign power including the right to legislate for that territory may be acquired by a Legislation in the nature of Foreign jurisdiction Act, without the territory itself merging in the new State;
(4) The right of the residents of that territory against whom the old State come to an end and the obligations of the old State do not pass on to the new States;
(5) The residents of that territory can only enforce such right against the new State which it has expressly or impliedly recognised or conferred by executive action or legislation and they cannot enforce a provision in the treaty of cession that their rights will not be affected by the cession and will be respected by the new state;
(6) The Laws in force in that territory before annexation or cession continue until abrogated by the new State, but this by itself does not confer any rights to the residents of that territory to enforce the rights accrued under those laws before annexation or cession against the new State;
(7) The rights of the residents of that territory which are recognised or conferred by the new State after annexation or cession cannot be abrogated by the now State by justifying the abrogation as an act of State for there can be no act of State against a subject.
In State of Saurashtra v. Meman Haji Ismail the Nawab of Junagarh had gifted some property to the respondent, Mr. Abu Panch who sold the same to the respondents for Rs. 30,000. After passing the Independence Act, 1947, the Nawab of Junagarh became a sovereign but unlike other rulers in India, did not accede to India. In the meantime the Nawabs of Junagarh left for Pakistan and there was chaos in the State. The Nawab of Junagarh left for pakistan and there was chaos in the State. The Nawab’s Council requested the Government of India to take over the administration of Junagarh. Thereupon the Government of India took the administration of Junagarh. Thereupon the Government of India took the administration of Junagarh on 9.11.1947 and appointed an administrator to administer the State. In a referendum held in February, 1948 the people of Junagarh voted in favour of the accession of the State to India and on January 20, 1949 it was merged into the then State of Saurashtra. On Oct. 18, 1947 the administrator of the Junagarh passed an order declaring the gift of property by Nawab to Ahu Panch and subsequent sale of the property by Abu Panch to Haji
Ismail as invalid and cancelled the grant and ordered that the said land, with the superstructures thereon should be resumec forthwith by the State as State property.
Haji Ismail filed a suit for the declaring of the order as invalid. His suit was opposed on the ground that it was an act of State and therefore on action could lie against the order. The Supreme Court held that between November 9, 1947 and January 20, 1949 there was no formal annexation of the State by the Dominion of India and the citizens of Junagarh, therefore, did not became the citizen of Dominion. During the interval they were aliens even though they had expressed their desire in the referendum to merge with India. It was held that the action of the Dominion was an act of State and as such the act of the Administrator though arbitrary, could not be challenged in the Municipal Courts.
In State of Saurashtra (Now Gujarat) v. Mohammad Abdulla and others, the facts were similar to Haji Ismail case. In this the Nawab of erstwhile state of Junagarh had made grants of certain properties which was being held by the respondents. On November, 1947 the Government of India appointed an administrator to take over the administration of the State. The administrator cancelled these grants and dispossessed the respondents of these properties. Subsequently, the State of Junagarh merged with the State of Saurashtra. The respondents challenged the resumption of grants and also dispossession of properties on the ground that they could not be deprived of their property by an executive action. The Supreme Court held that the order of the administrator arose out of and during an act of State over which the municipal courts had no jurisdiction.It was also held that though de facto control of Junagarh State was taken over by the Government of India in November, 1947, but the de jure change of sovereignty tood place in January, 1949 when Junagarh had merged with Saurashtra and, therefore, the act of State had not terminated till that time. The respondents were aliens against whom the order of the administrator was an Act of State. Das, J. Said, “in cases where the acquisition of new territory is continuous process distinction must be made between de facto exercise of control and de jure resumption of sovereignty…. As long as Junagarh State continued as such, there was no such succession and even though the Dominion of India took over the administration of Junagarh on 9.1.1947 and exercised control therein, it did not terminate till January 20, 1949, when the Dominion of India assumed de jure sovereignty over Junagarh by its integration into the United States of Saurashtra.
There can be no such thing as an act of State between a sovereign and his own subjects.
“A suit for Tort cannot be brought against Acts of State”. Examine the statement.
“An Act done in exercise of sovereign power in relation to another state or subjects of another State is an act of State and cannot be questioned by municipal courts.” Examine the statement.