Aryan dhar
Cases are classified into two forms of classes for the effective running of the judicial machinery: a) general suits and b) special suits. Order XXVII-XXXVII, as well as sections 79 to 33 of the Civil Procedure Code of 1908, deal with the latter type of cases/suits.
Order XXVII, section 79-82 deal directly with litigation filed by or against public authorities/officers. These sections primarily explain the process and institutional machinery for dealing with the above litigation against public/government officers.
Section 86 of the code is one of these privileges conferred upon sovereign rules, bodies and authorities, granting them sovereign immunity in certain scenarios. It must also be noted that the system of sovereign immunity followed in India and its legal system is slightly different from the one’s followed around the world and it does not offer complete immunity to the sovereign body. The same will be explained in detail in the article below.
SECTION 86 OF THE CODE OF CIVIL PROCEDURE
In India, the question of foreign state protection/ sovereign immunity is regulated by Section 86 of the Code of Civil Procedure, which specifies that no foreign state can be prosecuted in any court of law without the prior permission of the central government of the country (India).
However, this consent is not extremely strict and is not required in certain matters governed by a special law (for, e.g., the Carriage by Air Act 1972, Consumer Protection Act 1986) or where the legal proceedings are not in the nature of a suit, such as an industrial dispute under the Industrial Disputes Act 1947.
It should also be noted that in certain commercial or contractual matters between sovereign bodies and other parties this immunity may not be upheld and a suit can very well be filed in an appropriate court of law.
This can be noted in the Supreme Court Judgement of Ethiopian Airlines v Ganesh Narain Saboo, AIR2011SC3495.
The centre has the power to give consent; however, the decision will be based on the relevant facts of the case and will only be included under the following circumstances:
a) when there has been a suit brought in the court of law, against the person who wishes to sue it, or
b) trades within the local boundaries of the Court’s jurisdiction, either individually or with others, or
c) is in possession of immovable property located within those limits and is to be sued in relation to such property or for money owed on it, or is in possession of immovable property located within those limits and is to be sued in relation to such assets/property or for money owed on it, or
d) has waived the right provided by this clause, either directly or indirectly.
CONSENT OF GOVERNMENT UNDER SECTION 86
As stated under section 86 of the Code of Civil Procedure 1908, the consent of the Centre along with the certification by the secretary of the state is important for the protection of the interests of the sovereign national, which can be stated in the case of German Democratic Republic v New Central Jute Mills Co Ltd and Ors, AIR1994SC516.
The purpose of making the government’s approval a legal condition for bringing a suit against a sovereign body, according to the Supreme Court, is to ensure that parties with valid claims are not left without a redress and that sovereign states are not subjected to baseless and scurrilous litigation in the Indian legal system.
An individual seeking the government’s permission under sec. 86(6) of the CPC is also entitled to a fair opportunity to be heard, as per the code. It can be seen in the case of Harbhajan Singh Dhalla v. Union of India, AIR1987SC9 that, the Apex court has stated that the government’s right to withhold permission should be wisely executed, and that the state should usually give consent to sue if a case satisfies the requirements set out in section 86(2).
The right to deny permission must be practiced in compliance with natural justice ideals, and the order denying the approval must specify the grounds for the rejection.
The decision cannot be arbitrary or on whimsical grounds. In Rita Solomon v The State of Italy, AIR2019Delhi133 this 2019 judgement of the Delhi High court lays down the precedent of conferring a right of a hearing before the court of law, to even the foreign state, before the court gets the jurisdiction/ authority to adjudicate the matter at hand.
This judgement also lays down that the order of consent given by the court of law, should be in consensus or within the purview of section 86 (2) of the Code. The government’s decision to give or deny permission to sue is therefore open to judicial scrutiny.
This is the second stage of appeal, where the state’s decision can be reversed and the issue remanded to the government for further review.
CIRCUMSTANCES UNDER WHICH PRIVILEDGE CAN BE REVOKED
Further it can be seen that the protection/ privilege under section 86 of the code is extended only to those sovereign bodies/states that come under the purview of performing a sovereign function and not those that have a suit of a commercial/contractual nature.
Further the same sovereign immunity is also extended to rulers, ambassadors, envoys, high commissioners of foreign states, and any such member of the staff of the foreign state, or the staff or retinue of the ambassador or envoy or the high commissioner of a foreign state, as the government may specify, as per section 86 (4) of the Code of Civil Procedure 1908.
A foreign body/state can also waive off its immunity, may be expressed or implied, and done on its own accord as per section 86 (2) (d). An example of implied waiver can be seen in the case of Kenya Airways v Jinibai B Kheshwala, AIR1998Bom287 where the sovereign body did not bring up the plea of sovereign immunity for a long time in the proceedings, and were participating in the matter at hand in the domestic court of law.
The Bombay High Court ruled that, while Kenya Airways was eligible for sovereign immunity, its involvement in the suit for around Sixteen years prior to demanding immunity led to a presumed waiver of the immunity.
Other certain express ways to waive of immunity are by signing certain treaties between the two sovereign bodies on the particular matter. Signing certain conventions also amount to a waiver of immunity granted under section 86 of the Code of Civil Procedure 1908.
One such example of this can be seen in the matter of Ethiopian Airlines v. Ganesh Narin Saboo, AIR2011SC3495. This case laid down several conditions for sovereign immunity to be waved off. These conditions included the signing of the Carriage by Air Act, 1972, which being a special law/act does not contravene with the civil laws laid down under section 86 of the Code of Civil Procedure 1908.
Thus, by signing the Warsaw Convention, Ethiopia had expressly waived its Airline’s right to immunity in cases brought under the national act i.e., Carriage by Air Act, 1972. Therefore, the Central Governments of both India and Ethiopia have waived the right of sovereign immunity to jurisdiction.
RIGHT OFF POSSESSION OF IMMOVABLE PROPERTY
In terms of constitutional exceptions to sovereign immunity, the proviso to section 86(1) of the CPC specifies that in cases brought by tenants of immovable property owned by foreign states, the government’s permission is not necessary.
As a result, international states do not have sovereign rights in lease disputes where the applicable state is the tenant’s landlord. It has already been agreed that sovereign immunity should not exist in situations concerning rental disputes in immovable properties where a foreign state is the occupant (Syrian Arab Republic v AK Jajodia, 116 (2005) DLT444).
The government may also give permission to sue over certain disagreements under the terms of section 86(2)(c) CPC.
Conclusion
As stated above the sovereign immunity granted in India is not absolute and have certain limitations/exceptions to it which have to be studied carefully by the courts of the country, before granting or denying such an immunity.
It can also be seen in the recent judgements of Rita Solomon v The State of Italy, AIR2019Delhi133, that in granting or denying this immunity, the court of law has to give reasoning for the same to both the parties, as well as a right to have a hearing before giving the same to both of them.
Further it was also stated that such a decision has to be given after due consideration of the laws laid down under section 86 (2) of the Code of Civil Procedure 1908. However, since there is particular unified law followed around the world, which has been adopted and used by India, the situation of a sovereign immunity will always remain a tricky one for the Indian judicial system.
*The Carriage by Air Act, 1972