Question:- How far is Act of State, a valid defence in tort?

Answer:- The defense of Act of State is a complex and often controversial concept in the field of tort law. It is based on the principle that courts should not adjudicate on the lawfulness or validity of acts committed by a foreign government within its own territory. The defense asserts that when a foreign state engages in an act that causes harm or injury, the domestic courts should refrain from reviewing the legality of that act, as it falls within the exclusive jurisdiction and authority of the foreign state. However, the recognition and applicability of the defense of Act of State as a valid defense in tort vary significantly among jurisdictions.

An act of States is an act which the King executes in the exercise of his absolute and extraordinary power. It is essentially an exercise of sovereign power, and in the words of Pollock is “an act done or adopted by the prince or rulers of a foreign independent State in their political and sovereign capacity, and within the limits of their de facto political sovereignty”. Sir James Stephen defines, it as “an act injurious to the person or to the property of some person who is not at the time of that act a subject of his Majesty; which act is done by any representative of his Majesty’s authority, civil or military, and is either previously sanctioned or subsequently ratified by his Majesty’.

Also Read Question:- Both wife and husband were employed by X. Husband was the Manager and wife his Assistant. Owing to negligence of the husband during the course of his employment the wife sustained injuries. Advise her.

Also Read Question:- Do you agree with the view that “The husband can break the wrist but not the watch of his wife”. Give reasons for your answer.

Under Section 87-B of the Civil Procedure Code, 1908, no ruler of any former Indian State may be sued in any Court except with the consent of the Central Government.

According to Hidayatullah, J., “an act of State is in exercise of sovereign power against an alien and neither intended nor purporting to be legally founded. A defence of this kind does not seek to just the action
with reference to the law but questions the very jurisdiction of the Courts to pronounce upon the legality or justice of the action. Therefore, no action lies in a municipal court against an act of State.

The doctrine of act of State was recognised in India quite early. In Secretary of State in Council of India v. Kamachee Boye Saheba, the Rajah of Tanjore who had an independent sovereign status was under the protection of the East India Company by virtue of a treaty. When the Rajah died issueless, the East India Company declared the Raj to have lapsed to British Government, Kamachee Boye Saheba, the Widow-of Rajah, filed a suit against this act of the Company. The Privy Council held that it was an act of State for which municipal court cannot afford a remedy.

Thus, an act of State is an exercise of sovereign power against an alien and is neither intended nor purports to be legally founded.

Also Read Question:- “Defence of State immunity not available where fundamental rights are violated.” Elaborate on this statement citing important case laws in this regard.

Also Read Question:- Discuss the Tortious liability of the Crown or State.

There are, however, three exceptions in which the Government can be made liable, even though the acts may be acts of State, viz., (a) trespass to immovable property, (b) an obligation imposed by a statute, and (c) where it can be shown that benefit has resulted to Government from a tort of its servants. Thus, it has been held, that the Government can be sued for illegal levying of costs to punitive police, which is an act of tort. Following the English practice, the Indian Courts have held that act of Sate would not apply in those cases, where a citizen of the Indian Republic is aggrieved by the act of an officer of the State.