Say the ratio out loud before you open Reasoning — recalling it unprompted is exactly what the exam pays for.
Why it matters
Immunity is a privilege, and a privilege can be given up. This is the Indian authority on waiver of immunity by conduct, and it carries an important limit that students regularly miss.
Facts
The defendant had participated in the proceedings for sixteen years before the question of immunity was raised.
Held
Waiver of immunity may be presumed from conduct, and sixteen years of participation sufficed. But waiver of immunity in a previous suit does not amount to a waiver in a subsequent suit.
Reasoning
Step one — the immunity exists for a purpose. In India the question is governed entirely by statute, and s. 86(1) bars a suit against the Ruler of a foreign State except with the consent of the Central Government certified in writing by a Secretary. The object of the consent requirement is to protect the foreign State from harassment and from being dragged into frivolous litigation.
Step two — a party who litigates does not need that protection. Sixteen years of participation is inconsistent with an objection to being in court at all, and the court may presume the protection was given up.
Step three — but the waiver is suit-specific. The protection is against being dragged into litigation, and each suit is a fresh dragging. A State that chose to contest one case has not consented to contest the next.
Exam use
It opens: Can sovereign immunity be waived? — and the answer has two halves, the presumption from conduct and the suit-by-suit limit.
Set it in the statutory frame. The Indian law on immunity is entirely statutory — s. 86 of the Code, the United Nations (Privileges and Immunities) Act, 1947 and the Diplomatic Relations (Vienna Convention) Act, 1972 — as against the English development from absolute immunity in The Christina to restrictive immunity in Trendtex Trading Corporation v. Central Bank of Nigeria, now regulated by the State Immunity Act 1978, which itself withholds immunity where the State submits.
Notice the parallel with submission to jurisdiction. In the recognition of foreign judgments, appearing and pleading to the merits is submission, while an appearance to protest jurisdiction is not — Re Dulles' Settlements. Waiver of immunity works the same way, and the same evidential question is asked: what does the conduct show?
It does not decide whether the Central Government's consent can be dispensed with; consent and waiver are distinct requirements, and the section speaks of consent.