Under Civil and Criminal laws

By Aarushi Singh

India, being the second largest democracy in the world with the largest population of multi-lingual and multi-cultural people, has 29 states and 7 union territories. Its administrative government major looks into all the matters concerning laws and orders as well as regulation and maintenance of these laws and orders.

The Government of India majorly is divided into two parts: Central or Union and State. The central government further have three divisions, namely, Legislative, Executive and Judiciary. The Constitution of India gives power to both the governments to make rules and regulations on the subjects which are mentioned in their lists also known as Union List which has 97 subjects, State List which has 66 subjects and one such list is there where both the governments can make rules and regulations which is the Concurrent List which has 47 subjects[1].

These subjects are for the legislature to govern laws in respect to govern nation. The execute body is responsible for the execution and implementation of these laws and consist of the Prime Minister and other bodies like police state etc., headed by the President of India.

The Judicial body is responsible for the interpretation of these laws and orders, it monitors the working of the legislative and executive bodies, if they are working within their limits which are prescribed by the constitution or not. Judiciary can ask and give directions to legislative and execute bodies of the central government.

The constitution of India is grundnorm. Any law which violates the basic structure of the constitution can be struck down by the Supreme Court of India declaring it to be ultra-virus the limits of the constitution of India[2]. At the State level, government is headed by the Chief Minister with his council of ministers.

The state is further divided into same three categories as the central government, the legislative[3], the executive[4] and the judiciary[5].

The only difference is that the state government has authority over the state matters, if any special law is required for the state like in Uttarakhand Police Act, Uttar Pradesh Police Act, the state legislative body is responsible to enact these laws, the executive branch is responsible to implement and Judiciary is responsible to monitor the workings as well as interpreting these laws in various conflicts of law.

Judiciary further have divisions, for central there is a Supreme Court of India, which is the highest Court in India, after that, the High Courts also known as the highest court of court state, every state has one High Court within its territory, then comes the District Courts, every district or if the district is small then two districts can share one District Court as well.

Types of Jurisdiction under Civil Law

  1. Jurisdiction of Civil Courts Under the Code of Civil Procedure

Code of Civil Procedure lays down the provisions for the administration of civil proceedings in India. It has all the procedural laws which a person must follow in order to constitute legal proceedings in the court of law.

It is enacted in compliance with Contract Act, Intellectual Property Right Acts, Company’s Act etc., all the proceedings are mentioned under this Act. Section 9 of the Code of Civil Procedure specifically lays down the provision regarding the civil jurisdiction of the courts in India.

According to this provision, all the courts in India have jurisdiction to try the suits of civil nature unless it is barred by this Act itself expressly or impliedly. This code lays down two major jurisdictions which are important for all the civil suits, namely, the pecuniary jurisdiction and the territorial Jurisdiction.

The pecuniary Jurisdiction is mentioned under section 6 of the code whereas the territorial Jurisdiction is mentioned under section 16, section 17, section 18, section 19 and section 20 of the code.

The pecuniary Jurisdiction deals with the monetary value of the suit, which means no court can exercise its Jurisdiction over the suits for which the amount or the value of the subject matter exceeds the prescribed pecuniary limits of its ordinary Jurisdiction whereas the territorial Jurisdiction, the term itself justifies the meaning no court will have Jurisdiction over any suit which do not come under its territorial limits which are prescribed by the Constitution of India while formulating the Courts of India.

         2.Jurisdiction based on the agreement between the parties:

Under Indian Law, party’s consent to submit itself to the Jurisdiction of the Court which does not have a jurisdiction to try such matter within its prescribed limits will not give any jurisdiction to that Court which means no Court shall have jurisdiction to try any suit in which any of the party is submitting itself to the Court until the court has a valid jurisdiction to try that suit.

Consent can neither confer nor take away jurisdiction of a court. It is a well-established fact in the case of Bahrein Petroleum Co. Ltd. v. P.J. Pappu[6], the Supreme Court has held that, “neither consent nor waiver nor acquiescence can confer jurisdiction upon a court, otherwise incompetent to try the suit. It is well-settled and needs no authority that ‘where a court takes upon itself to exercise a jurisdiction it does not possess, its decision amounts to nothing.’ A decree passed by a court having no jurisdiction is non-Est and its validity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings. A decree passed by a court without jurisdiction is a coram non judice”.

Such judgments can be held valid but can be challenged at any stage of the suit. If the defect is in the Jurisdiction then it foes to the root of the matter ad cannot be cured by the consent of the parties, it will be null and void per se.

But in terms of International Laws, if parties are agreeing to submit to the jurisdiction of a particular court which is neutral and has no interest in the subject matter or when no party has any connection to that neutral court then the agreement would be held absolutely valid in nature.

It is a well-established principle in the case of Modi Entertainment Network & Ans. V. W.S.G. Cricket Pte. Ltd.[7], at para 11, “It is a well-settled principle that by agreement the parties cannot confer jurisdiction, where none exists, on a court to which CPC applies, but this principle does not apply when the parties agree to submit to the exclusive or non-exclusive jurisdiction of a foreign court; indeed in such cases the English Courts do permit invoking their jurisdiction. Thus, it is clear that the parties to a contract may agree to have their disputes resolved by a Foreign Court termed as a ‘neutral court’ or ‘court of choice’ creating exclusive or non- exclusive jurisdiction in it”.

Whereas in the situations where both the parties are domestic for the state this shall not be applied and the rules of Code of Civil Procedures will apply as they are mentioned, which are, the only Courts which will have jurisdiction in such matters are the ones under whose territorial nexus the subject matter or any of the parties residential or the official location falls or in many cases where the parties agree to institute the proceedings in terms of any breach, in these conditions are agreements are not void per se.

They are not opposing any public policy or any laws. Such agreements are legal, valid, and enforceable absolutely in the court of law, established in the case of Hakam Singh v. Gammon (India) Ltd.[8]

        3.Jurisdiction based on the submission of the defendant:

If the defendant voluntary submit himself to the jurisdiction of the court in India, that court is entitled to assert jurisdiction over him. The rule applies both to domestic as well as foreign defendant.

However, where a case is of domestic nature between domestic defendants, the Court before whom the defendant submits should actually have jurisdiction to try the case, because, the law in India is clear that a party’s consent to submit itself to the jurisdiction of a court which does not have jurisdiction to try the case, cannot confer jurisdiction on such court.

Consent can neither confer nor take away jurisdiction of a court.[9] But in international cases, the parties are allowed to make contract and agree to certain terms which will give jurisdiction to any neutral court which will not have any interest in the subject matter and be neutral towards the party, which means, court shall not be biased.

In such cases if neither of the parties have relation to the court and is proceeding in that court, if in such situation defendant makes an unconditional appearance himself then it will be termed as submission, even if he merely accepts the summons, waiving his objection to the jurisdiction, it will be termed as submission but if he comes to the Court merely to object and to protest that the court does not have any jurisdiction to try the suit then his appearance will not constitute submission recognized in British India Steam Navigation v. Shammughavilas Cashew[10].

        4.Presence, domicile or Residence based jurisdiction over the defendant:

Indian law is born out of English Law and hence follows many principles which occurs in English Laws. It is a well- established and clearly defined principle in India under Code of Civil Procedure that the court will have jurisdiction over the defendant on the basis of his residential location, on basis of his location of initiating course of business and on the basis of the location where the breach has taken place regarding the subject matter.

Jurisdiction on the basis of physical presence of the defendant was settled in Indian courts in a very old case of Kasinath v. anant[11], the case was related to property dispute which the defendant and the plaintiff inherited under a contractual obligation. The subject matter was outside the jurisdiction of the court where the suit was instituted neither defendant resided in that location but he was present at the time of institution.

The Court held that even though they had no jurisdiction over the defendant under the civil procedure code, but nevertheless Indian court follows English Laws in such matters, hence the court has jurisdiction over the defendant based on his presence within his territory of the court.

Similarly, if a person is domiciled in India, Indian courts have territorial jurisdiction over that person. There is no notion of state domicile, said in Pradeep Jian v. Union of India[12]

         5.Jurisdiction under Hague Convention on the services Abroad of judicial and Extra judicial document in civil   and commercial matters:

India is a member to Hague Convention, India ratified the convention on 23rd November 2006 and the convention came into force on 1st August 2007.[13]

According to Hague Convention, “the state parties can serve the process of their judicial or extra judicial documents from their own state to another state without following any consular or diplomatic channels”. The convention primarily deals with the transmission of documents.

General Provisions regarding jurisdiction in India under Code of Civil Procedure:

Indian Law considers two major factors which are required for exercising jurisdiction in India. The first is identification of suing of place or place of filing the suit which helps the Court to decide on the territorial jurisdiction and Court also assumes the jurisdiction over the defendant to try the certain cases and the second is issue of summons which serves as a process to bring the defendant before the court of that place.

The provisions regarding the place of suing and place of filing the suit are mentioned under ‘sections’ in the code whereas the provisions regarding the issue of summons fall under the ‘order and rules’ which are mentioned in the code as well.

  • Provision with regards to the place of suing and filing of suits:

Section 15[14] says that the civil suits are proceeds according to the hierarchy of courts in India, which means, a civil suit shall be first filed in the district court or the lowest court.

Section 16[15] of the code deals with the place of suing of suit where the subject matter is situated.

Section 17[16] deals with the place of suing of suits relating to immovable property.

Section 18[17] deals with the place of suing where the jurisdiction of the courts are uncertain in suit relating to immovable property.

Section 19[18] deals with the place if suing of the suits relating to compensation for the wrong done to persons or movable property.

Section 20[19] deals with the place if suing of all other suits. This section is important because it gives jurisdiction to the court to try the suits of commercial contracts as well. This section had a wide scope if the plaintiff is able to proof that the court has jurisdiction over the subject matter under section 20 then the court has absolute jurisdiction over the suit.

In the case of A.B.C Laminart Pvt. Ltd & Anr v. A.P. Agencies[20], the Supreme Court explained the meaning of cause of Action in the following terms, “A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue.

It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to be defense which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff”.

In the case of Mohanakumaran Nair v. VijayaKumaran Nair[21], the Supreme Court held that “section 20 of the Civil Procedure Code embodies, that the question in regard to the jurisdiction is required to be determined with reference to the date on which the suits is filed and entertained and not with reference to a future date. The material date to invoke territorial jurisdiction under section 20 of the Civil Procedure Code is the one of the institution of the suit and not the subsequent change of residence. Change of residence subsequent to decision of the court would not confer territorial jurisdiction in the court which it did not have.”

  • Issue of Summons – Order V

A summon is a document issued by the office of court in order to notify the defendant that a suit has been filed with the court against him, summons give him proper time to respond and be present in front of the court or an officer of court. It makes the defendant legally obligated to appear.

Court does not need to issue summons if the defendant is present while the plaintiff files the suit in the court.*43 Summons are said to be authentic only when they have seal of the court, summons are drawn along with the copy of the plaint.

Extra- Territorial service of summons on the foreign defendant under the code of civil procedure:

Order V Rule 25 of Code of Civil Procedure has an extra territorial jurisdiction over the defendant who is not a resident of India but it has few conditions attached to it, which are:

  • In case the defendant is outside India, the cause of action shall arose within the territory of India, the summons shall be issued under Code of Civil Procedure, outside Territory ex-juris.

Suits by foreign party against Indian entity:

Under Code of Civil Procedure (Amendment) Act, 1951 (No. II of 1951) has amended section 83-87 which are now section 83-87B currently[22].

Section 87A[23] defines the term foreign ruler and state, according to this section a Foreign State is any state which is recognized by the Central Government and ruler is a person who has been recognized by the central government as the head of the state. Every state is required to take notice if the state and person is recognized by the central government or not.

Section 83[24] deals with the circumstances in which foreigner entities are allowed to sue in Indian courts. According to this section, foreigners are referred as aliens so the section says an alien will only be able to sue in India only if:

– He has taken permission from the court to sue and court has granted such permission to him.

– If he is residing in India.

No alien is allowed to sue in India in case he is residing in a foreign country and if he does not have permission of the court even after residing in India.

Section 84[25] says a ‘foreign state’ can sue in competent court in India to enforce a private right vested in the Ruler or in any of its officers in his public capacity.

Section 85[26] deals with persons who are appointed by the Government to prosecute or defend on the behalf of the foreign rulers, the central government can appoint agents for foreign rulers whom appearances, acts and applications under the code may be made on behalf of such ruler. The agent will then himself act as a party to the suit, all the proceedings would be binding on the foreign ruler.

Section 86[27] deals with suits against foreign rulers, ambassadors and envoys and says no one can sue a foreign ruler without the express consent of the Central Government certified in writing by a Secretary to that government. There is an exception to this provision that it will not apply to the cases where person is a tenant of an immovable property against his ruler landlord. [Section 86(1)]

Section 86(2) lays down the conditions in which the government will grant permission to the person, which are as follows:

– Central Government can give permission if it appears to the government that the foreign ruler has instituted a suit against the person who is desiring to sue.

– That the foreign ruler is trading within its local limits of the jurisdiction of the court.

– If the foreign ruler is in possession of immovable property situated within these limits and is to be sued with reference to such property or for money charged.

– If the foreign ruler has already waived the privilege accorded to it by this section.

Section 86(3) talks about immunity from arrest which means foreign ruler cannot be arrested under Code of Civil Procedure whereas a decree can be executed against his property.

Section 86(4) deals with Ambassadors and Envoys which says that Ambassador and Envoys of foreign state and High Commissioners of Commonwealth countries enjoys same immunity from the procedures of Code of Civil Procedure as the Foreign Ruler.

In the case of Hongkong and Shanghai Banking v. Union of India[28], In this writ petition the petitioner, Hongkong & Shanghai Banking Corporation Ltd. (the bank), a banking company organized under the laws of Hongkong has in substance challenged the legal validity of a conciliation proceeding initiated under the Industrial Disputes Act, 1947.

The second ground of the objection is over jurisdiction of this Court to hear out the writ petition in the Original Side. Court said, “On the point that a foreigner or a foreign company is not entitled to maintain a writ petition, there is no specific bar in the Constitution that prevents a corporation incorporated outside the country to maintain a petition under Article 226 of the Constitution of India. Article 226 does not lay down any eligibility criteria based on citizenship of the seeker of the constitutional remedy. The basic requirement for invoking the jurisdiction of the Writ Court is that the legal right of the complainant should be breached by any person or authority, who fits the description of “State” under Article 12 of the Constitution of India. In exceptional cases, a “person” or “authority” who is not “State” within the meaning of Article 12 of the Constitution can also be subjected to jurisdiction of the Writ Court. A person, who is not a citizen, however would not be entitled to enforce rights which are preserved for a citizen of this country only.”

In the case of Strauss And Co. Ltd. In v. Unknown[29], in this case it was questioned if court has jurisdiction to make a winding up order against an unregistered foreign company not consisting more than seven members under section 270 and section 271 of Companies Act, 1913. The material sections are Sections 270 and 271. Section 270 is in these terms:-

Section 270: For the purposes of this Part, the expression ‘unregistered company’ shall not include a railway company incorporated by Act of Parliament or by an Act of the Governor General in Council, nor a company registered under the Indian Companies Act, 1866, or under any Act repealed thereby, or under the Indian Companies Act, 1882, or under this Act, but save as aforesaid, shall include any partnership, association or company consisting of more than seven members.

Section 271 provides that subject to the provisions of this Part, (i.e. Part IX), any unregistered company may be wound up under this Act, and all the provisions of this Act with respect to winding up shall apply to an unregistered company, with certain exceptions and additions, to which it is not necessary to refer.

These two sections are placed in Part IX of the Act, the heading of which is “Winding up of unregistered companies.” The expression ‘ company’ is defined in Section 2 (2) as meaning a company formed and registered under this Act or an existing company. Sub-section (7) defines “existing company” as follows:-

‘Existing company’ means a company formed and registered under the Indian Companies Act, 1866, or under any Act or Acts repealed thereby, or under the Indian Companies Act, 1882.

The Court held that “A Court has jurisdiction to wind up as an unregistered company a foreign company whatever the number of its members, if it has an office and assets within its jurisdiction, and the mere fact that the order for winding up the company has been made by a competent Court of the place of the company’s incorporation cannot make any difference to the jurisdiction of this Court. In such a case the order will sometimes be restricted and the sanction of the Court will be required if further proceedings are taken, and the liquidation here will be ancillary to the Court where the company is incorporated. But in spite of its desire to assist the foreign Court the Court here will not give up the forensic rules which govern the conduct of its own liquidation. See In re English, Scottish, and Australian Chartered Bank[30].

Suits by a foreign entity under Criminal Laws:

Suing by a foreign entity against a domestic entity is handled by the International Criminal court, International Court of Justice, International Criminal Tribunal of Rwanda and International Criminal Tribunal of Yugoslavia, such cases if concerns offences which are listed under the International criminal Laws will only be tried by the abovementioned courts.

India have a set of laws for criminal offences under its Indian Penal Code and the procedures of the same is mentioned under Code of Criminal Procedure, India’s laws are strict in terms of punishments in criminal case and are quicker than civil and corporate cases. Indian laws provide life imprisonment as well as fine and in certain cases both fine and imprisonment.

Death sentence and rigorous imprisonment are also given in certain offences. All the criminal case proceedings are maintained by the state against the defendant for the commission of a particular crime. This has relevance such as:

  • To regulate the relationship between states, or between one state and another;
  • Where the nation is a federation, to regulate the relationship between the federal courts and the domestic courts of those states comprising the federation; and
  • Where a state only has, to a greater or lesser extent, a single and unified system of law, it is the law of criminal procedure to regulate what cases each classification of court within the judicial system shall adjudicate upon. People must be tried in the same state the crime is committed.

If a foreign entity or a person will file a case against a domestic entity or person to India then the case will be brought by the state against the defendant himself.

There is a branch dedicated to international criminal law which deals with genocide, war crimes, crime against humanity etc, these crimes are committed against public at large but lately rape, murder have also made their place under this category.

International criminal laws justifies the term, the cases which comes forward are dealt by the International Criminal Court in compliance with the international laws which is consist of treaties and conventions ratified by various or majorly all the nations of the world.

International Criminal Law have their procedures to try the suits brought before them.

Scotia Case’[31]: This case was decided by the US Supreme Court in 1874, the facts of the case were:

– There was a British ship which collided with a US ship which resulted in sinking of the US ship because it did not had lights on the ship which it was supposed to carry as per new British regulations which was accepted by the US Congress which makes it implied that US somehow knew about this change in their law.

– After US agreed only then this new law came into force so US cannot claim any damages because they were at fault.

In this case it can be said that new codified law which is accepted by both the nations to the agreement can precede over the customary practice, in case the practice is somehow benefitting both the nations and are not contradictory to any previously arising customary practice and is not derogatory to any particular religion, caste or group of people, which in this case does not hamper any preceding practice or culture or any particular group of people.

Hence US was completely at fault, they should have taken care. The problem could arise even bigger if it was the British ship which sunk then it will also be US’s fault and they would have asked to compensate British nation for their negligence.

ICC Jurisdiction:

  • ICC can only exercise its jurisdiction if the accused is a national or a state party.
  • If the crime took place on the territory of the state party (territorial jurisdiction).
  • Lastly, if the UN Security Council has referred this situation to the prosecutor by involving in the matter itself, irrespective of the nationality of the perpetrator or the location of the crime.

Types of Jurisdiction ICC can exercise:

There are various types of jurisdiction exercised by the ICC and these are:

  • Temporal (ratione temporis) jurisdiction: The principle is in Article 1(1) of Rome Statute, the first principle of the jurisdiction mentioned in Rome Stature of ICC is the temporal jurisdiction which lays down that the court will have jurisdiction only in the matters and crimes which took place after the entry into force of the Rome Statute and the matters which came after the Rome Stature came into force, which means the statute will have no retrospective effect.

Other than this ICC has various other jurisdictions like[32]:

  • Legislative jurisdiction: According to this, the principle authorities a state can pass laws, rules and regulations which will have bearing on the conduct of the people. This type of jurisdiction’s practice is prohibited under the principle of non- intervention.
  • Adjudicative Jurisdiction: According to this, the state can enforce its laws in all the matter brought before the state.
  • Executive Jurisdiction: By this, the enforcement of the legal processes are done like arrest, seizure, search etc. this can also be in violence of the non- intervention principle where this enforcement is being done outside the boundaries of the state.
  • Territorial Jurisdiction: Under Article 12 (2)(A) of Charter of International Court of Jurisdiction in international law, the state will have right over all the matters, cases which are happening within its boundaries, it will have absolute power over such matters.

Territorial Jurisdiction has two perspectives, namely[33],

  • Subjective Territorial Jurisdiction: When the act commence within the territories but the effects were felt somewhere else.
  • Objective Territorial Jurisdiction: When the act commence somewhere else but the effects were felts within the territories.
  • Personal Jurisdiction: It refers to the power that a court has to make a decision regarding the party being sued in a case.
  • Subject-Matter Jurisdiction: It means ICC can have jurisdiction over all the crimes which are mentioned under the codified text which ICC follows such as genocide, war crimes, crimes of aggression, crime against humanity etc.

Victim’s participation and Victim’s Compensation Scheme:

A victim is a person who has suffered losses due to the criminal or wilful conduct of the person who committed the crime. Victims include organisations, institutions whosoever was harmed during the commission of a crime, crime could be bodily harm or psychological harm.

Victims and witnesses are given certain rights and obligations under ICC’s jurisdiction and one of them is “Victims have a right to participate in proceedings independently of the prosecution or defence” which means after choosing their legal representatives victims can still participate in the proceedings of the court in the following ways:

  • Victims can participate by presenting their views in front of the concerned judges and can voluntarily express their independent opinion.
  • Victims when wish to present their opinions they are asked to fill out application form for the same in advance. Judges view the application and grant or reject the application with proper reasoning.
  • Victims participation somewhat give rises to legal evidences pertaining to the guilt of innocence of the accused.
  • Victims can seek reparations for the harms that they have suffered out of the commission of the crime.

Victim Compensation Scheme under ICC:

  • At the end of the trial the trial chamber can order compensation from the convicted person to the victim in from of reparations. Reparations includes the monetary compensation, return of property, rehabilitation or symbolic measures such as apologies or memorials[34].
  • Reparations can be awards on individual and collective basis whichever the court finds the most relevant depending upon the case and the victims. Individual reparations are for the individual victim whereas collective are for the entire community and which helps community’s members to rebuild their lives and by creating service centres for the community as a symbolic measure.
  • A trust fund is created for victims under the jurisdiction of ICC, for victim’s families and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.
  • It is not possible to completely reserve the harm which was caused to the victim but still it is possible to help the survivors to rebuild their lives and regain their dignity and status as fully-functioning members of the society.
  • Trust funds acts regardless of whether there is a conviction by the ICC. It corporates with the court to disturb the on-going proceedings[35].
  • Victims who haven’t participated in the proceedings can also make an application for reparations under the jurisdiction of ICC.

The Prosecutor v. Jean‑Paul Akayesu[36]. During the 1994 Rwandan Genocide, Jean-Paul Akayesu served as the mayor of Taba, a city in which thousands of Tutsis were systematically raped, tortured and murdered. At the start of his trial, Akayesu faced 12 charges of genocide, crimes against humanity and violations of common article 3 of the 1949 Geneva Conventions in the form of murder, torture and cruel treatment.

Three counts were added in June 1997, it marked the first time in the history of international law that rape was considered a component of genocide. Rape would be genocide if it was committed with the intent to destroy, in whole or in part, a particular group targeted as such.

On 2 September 1998, the ICTR found Akayesu guilty of nine counts of genocide, direct and public incitement to commit genocide and crimes against humanity for extermination, murder, torture, rape and other inhumane acts. Akayesu is currently serving life imprisonment in Mali.

The Prosecutor v. Jean Kambanda[37], served as Prime Minister of the Interim Government of Rwanda throughout the entire 100 days of genocide. Kambanda was brought before the ICTR in October 1997 and pleaded guilty to six counts of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, complicity in genocide, and crimes against humanity.

Kambanda’s guilty plea and subsequent conviction marked not only the first time in international law that a Head of Government was convicted of genocide, but also that an accused person acknowledged his guilt for genocide before an international criminal tribunal.

Kambanda withdrew his guilty plea in his appeal, which was rejected on October 19, 2000. He is also serving life imprisonment in Mali.

First woman convicted by an international court – June 24, 2011[38] Former Family Affairs Minister Pauline Nyiramasuhuko, the only woman indicted by the ICTR who was tried with five other people, was sentenced to life imprisonment. She is a former social worker, later becoming a lawyer.

Nyiramasuhuko was found guilty on seven charges, including genocide, conspiracy to commit genocide and crimes against humanity. Her conviction was confirmed on appeal.

On National scale, India does allow foreigners to file a suit against a domestic person but it has certain conditions to it, which are as follows:

  • Either of the parties should be a resident of India or should at least have a course of business through India.
  • The cause of action must arise in India in criminal suits as well.
  • The defendant must be domiciled in India.

All these conditions are need to be fulfilled along with that, the foreign entity must have a permission from the Central Government, otherwise Article 19 and Article 21 of Indian Constitution 1949 expressly bars the foreign entities to sue any domestic entity under criminal laws in India.


Under Civil law, that is, The Code of Civil Procedure, there are various provisions which deals with the jurisdiction which allows a foreign state/entity to sue or proceed a suit against a domestic/Indian entity or an individual with certain conditions which are to be filled by the foreign state before initiating the proceedings.

Similarly, in Criminal Laws, criminal charges are brought by the state against the defendant in India, to sue for a foreign entity, it will have to establish various conditions whereas Article 19 and Article 21 which are provided by the Indian Constitution expressly to the Indian citizens only.

There is a branch in International Laws which expressly deals with the International criminal Laws. These laws are consists of various treaties and conventions, Hague Convention was the first convention which was ratified by the majority of nations to regulate war crimes, crimes against humanity etc.

There are different set of procedures to deal with the International Criminal offences under this branch.

  1. Constitution of India, 1949, Articles 79-122
  2. Article 32 & 124-147 Constitution of India, 1949.
  3. Ibid. Article 168-212.
  4. Ibid. Article 153-167
  5. Ibid. Article 214-237
  6. 1966 AIR (SC) 634.
  7. (2003) 4 SCC 341
  8. (1971) 1 SCC 286.
  9. Jurisdictional Issues in India, available at https://shodhganga.inflibnet.ac.in/bitstream/10603/208562/12/12_chapter6.pdf (last visited on 7 August 2020)
  10. 1990 SCR (1) 884; 1990 SCC (3) 481
  11. Paras Diwan and Peeyushi Diwan, Private International law- Indian and English 193(Deepand Deep Publications, New Delhi, 4th edn.,1998).
  12. AIR 1984 SC 142.
  13. mondaq.com.
  14. Code of Civil Procedure, section 15
  15.  Code of Civil Procedure, section 16,
  16.  Code of Civil Procedure, section 17,
  17.  Code of Civil Procedure, section 18.
  18.  Code of Civil Procedure, section 19
  19.  Code of Civil Procedure, section 20,
  20. [1989] AIR 1239.
  21. 2008 AIR (SC) 213.
  22. Chapter 7 of Code of Civil Prodecure (Amendment) Act, 1951
  23. Code of Civil Procedure, section 87A,
  24.  Code of Civil Procedure, section 83,
  25. Code of Civil Procedure, section 84 .
  26.  Code of Civil Procedure, section 85 
  27. Code of Civil Procedure, section 86, 86 (1) – (4)
  28. 20 May 2011, Calcutta High Court. WP. No. 388 of 2003,
  29. (1936) 38 BOMLP 1080.
  30. [1893] 3 Ch. 385, 394.
  31. 81 U.S. 170 (1871).
  32. Understanding the International Criminal Court
  33. Internatinal Criminal Court: Myth, Misinterpretation and Realities,.
  34. Victim Compensation Scheme under ICC,
  35. Ibid.
  36. ‎ICTR-96-4-T.
  37. ICTR 97-23-S
  38. ICTR-98-42.

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