Immunity: freedom from liability, from the King who can do no wrong to the constitutional tort
LUG-102 Jurisprudence — Legal Method, Indian Legal System and Basic Theory of Law, Unit V: Immunity. · LLB · 60 min
Immunity is the opposite of liability: the position of a person whom the law exempts from a liability to which others are subject, or, in Hohfeld's precise sense, freedom from another's power to alter one's legal position. This lecture defines it against privilege and exemption, then surveys its kinds in Indian law: sovereign immunity under Article 300 (the King can do no wrong; Vidyawati, Kasturilal and N. Nagendra Rao) and its defeat in the constitutional-tort cases (Rudul Sah, Bhim Singh, Nilabati Behera, D.K. Basu); the immunities of the President and Governors (Article 361), of legislators (Articles 105 and 194; Sita Soren), of judges (ss. 15-16 BNS; the Judges (Protection) Act 1985), the general exceptions of the BNS as immunities from criminal liability (ss. 14-44), and diplomatic and international immunities, ending with the modern trend away from immunity. The 2025-26 paper asked "what do you mean by immunity in law?".
Objectives
- Define immunity in Hohfeld's and Salmond's senses and distinguish it from privilege, exemption and right.
- Trace sovereign immunity from "the King can do no wrong" through Article 300, P. and O. Steam Navigation, Vidyawati and Kasturilal to its narrowing in N. Nagendra Rao.
- Explain the constitutional tort: compensation under Articles 32 and 226 in Rudul Sah, Bhim Singh, Nilabati Behera and D.K. Basu, and why sovereign immunity is no defence to it.
- Describe the immunities of the President and Governors, legislators, judges and diplomats, with their constitutional and statutory sources.
- Classify the general exceptions of ss. 14-44 BNS as immunities from criminal liability and explain the trend away from immunity.
Slides
- What immunity is: Hohfeld, Salmond, Paton
- Sovereign immunity: the King can do no wrong, and how India received it
- Vidyawati and Kasturilal: the line drawn
- From Kasturilal to N. Nagendra Rao: the narrowing of sovereign functions
- The constitutional tort: Rudul Sah, Bhim Singh, Nilabati Behera, D.K. Basu
- The President, Governors and legislators: Articles 361, 105 and 194
- Judicial immunity: ss. 15 and 16 BNS and the Judges (Protection) Act 1985
- The general exceptions of the BNS as immunities from criminal liability (ss. 14-44)
- Diplomatic, foreign-State and international immunities
- Immunity in civil law and the trend away from immunity
- Revision: immunity in one page
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