AIBA WANTS pm MODI GOVT TO PROMULGATE ORDINANCE TO PROVIDE WAY FOR SUING CHINA FOR COVID-19 FOR RECOVERING RS. 4 TRILLION FOR 20 LAKH INDIAN LAWYERS
AIBA WANTS MODI GOVT TO PROMULGATE ORDINANCE TO PROVIDE WAY FOR SUING CHINA FOR COVID-19 FOR RECOVERING RS. 4 TRILLION FOR 20 LAKH INDIAN LAWYERS
May 17 –
The All India Bar Association (AIBA) has urged the NDA government led by Prime Minister Narendra Modi to promulgate an ordinance to the Civil Procedure Code to pave way for filing suits to claim exemplary damages against China for making and spread of corona virus (Covid-19) and suppression of information about this virus which has claimed thousands of lives across the world.
In a letter addressed to Narendra Modi, the AIBA Chairman and Senior Advocate Dr. Adish C. Aggarwala has requested the Prime Minister to immediately amend the outdated Section 86 in the CPC, 1908 enabling citizens of India to sue the Government of China in the Indian courts to recover the losses due to Covid-19 and especially for each of the 20 Lakh lawyers in the country a minimum of Rs. 20 Lakh, totaling Rs. 4 Trillion.
He brought to the notice of the Prime Minister to a grey area in the law that is preventing the people of the country from seeking effective legal redress for enforcement of their rights. This is owing to an archaic legal provision that has outlived its utility and has today become a handicap for hapless persons who are being made to suffer in silence.
Dr. Aggarwala said the time is ripe to amend the law to keep pace with rapid developments that have taken place over the years. There is convincing material to demonstrate that the spread of the pandemic is the handiwork of The People’s Republic of China. The virus is the creation of its laboratories under orders of the Govt. which is now trying to cover its tracks. The virus, developed with remarkable ability to mutate, spread and afflict, and with unprecedented rate of mortality, has been deliberately and consciously wreaked upon the world by the Govt. of China, as part of its design.
The AIBA Chairman told the Prime Minister that China misled the world on several counts such as the nature of the Novel Coronavirus, its possible transmission from human to human, the rampant way in which it spreads etc. Due to deliberate acts and omissions and partly due to negligence on China’s part, the world is facing the grueling task of trying to tame the pandemic.
He noted that according to Section 86 CPC, no foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government. It should be noted that above provision allows suits to enforce contractual obligations in respect of trade activity in which a government is engaged but not for damages for commission of tort. There is no logic underlying this distinction.
Dr. Aggarwala drew attention to the fact that as per Doctrine of State Immunity, States enjoy protection from being sued in courts of other States and are exempted from prosecution or suits for the violation of the laws of another State. But this is applicable to only those States who have signed and ratified the United Nations Convention on Jurisdictional Immunities of States and their Property (“Convention”).
It is pertinent to note at this juncture that India is a signatory to the Convention, having signed the same on 12.01.2007. So far India has not ratified the said Convention nor has it accepted it in any way. Therefore, India is not under any obligation to exempt China or any other country from being prosecuted or sued in India for any violations. More importantly, China is also a signatory to the said Convention and just like India, it has not ratified the same.
There is no reason for the victims of a tort to be left remediless against a delinquent State. It is a well-established principle that the law cannot bar the institution of a civil suit for enforcement of civil rights against any entity, unless it provides an alternate and efficacious channel for voicing the said grievance and for securing the relief. As the law stands today, there is no other remedy available to an individual against the State of China.
Given the exceptional circumstances “we as a nation are facing”, Dr. Aggarwala suggested amending Section 86 of the Code of Civil Procedure, 1908 to provide for filing of class suits against China to claim exemplary damages based on torts committed by the foreign State.
In the United States, for example, a Bill has been moved officially in the US Senate, “to amend Title 28, United States Code, to provide a civil action against a foreign state for deliberate concealment or distortion of information with respect to an international public health emergency, and for other purposes.”
Clearly, it is being done to hold China accountable for its nefarious role in the pandemic. It must be noted that the State of Missouri in the USA has already filed a class action suit against China for tort and to claim exemplary damages from China for US citizens. There is no reason why India should lag behind the USA in seeking legal remedy to protect its citizens.
There are innumerable people in our country who have suffered and may be desirous of initiation of legal remedies. People have lost their kin and their jobs. Businesses have wound up. Lawyers have been suffering too.
He said financial losses and hardships have been colossal. The law must not stand in the way of the quest for justice by those who are aggrieved. “It is my genuine hope that the Government, which has been steadfast in its commitment to welfare of the Indian people, will act soon” said Dr. Aggarwala and appealed to the Prime Minister to examine this issue and come out with an Ordinance at the earliest.
(Dr. Adish C Aggarwala)
Senior Advocate
Chairman, All India Bar Association
Mobiles : 9958177904, 9868510674
17.5.2020Hon’ble Mr. Narendra Modi,
Prime Minister of India,
New Delhi.
Email : rajeev.topno@gov.in
REQUEST FOR BRINGING AMENDMENT THROUGH ORDINANCE IN SECTION 86 OF CODE OF CIVIL PROCEDURE, 1908 ENABLING CITIZENS OF INDIA TO SUE GOVERNMENT OF CHINA IN INDIAN COURTS TO RECOVER LOSSES DUE TO COVID-19
Respected Prime Minister,
I am writing to you this letter in order to beseech your attention to a grey area in the law that is keeping the people of the country from seeking effective legal redress for enforcement of their rights. This is owing to an archaic legal provision that has outlived its utility and has today become a handicap for hapless persons who are being made to suffer in silence. The conditions prevailing in the world had not been anticipated by the framers of the statute and therefore they could not provide for it a century ago when the statute had been drafted. However, the time is ripe when it ought to be amended to keep pace with rapid developments that have taken place over the years. This year has brought this into focus through the Coronavirus pandemic that has proved that a State’s wrongful actions (Malfeasance, Misfeasance and Nonfeasance) can have cross-border consequences, for which it may need to be held accountable. Unfortunately, as the statute stands today, a person aggrieved by such actions is remediless and even though he may have suffered an injury to his rights, he can only lick his wounds rather than maintain an action for damages. There can be little justification for a legislative interdict aimed at shooting down a valid action before it can take effect and before it can be tested in a court of law, in the name of immunizing foreign governments from vexatious claims. I am, therefore, imploring you to use your good office to amend the law through an Ordinance to remove the barrier and thereby strengthen the hands of the common man to seek the assistance of courts for enforcement of their rights.
I am submitting this letter on behalf of the All India Bar Association. The provision that needs amendment is Section 86 of the Code of Civil Procedure, 1908. It forms part of the adjectival law of the country and is supposed to provide the procedure for canvassing one’s claims. But, regrettably, instead of enabling a lawsuit for protecting one’s rights, it throws a spanner in the works. The fallout of this provision is that while the economy and development of the country has suffered a huge setback, while hundreds of lives have been and are being lost, while there has been tremendous loss of earnings and employment, and entire machinery of the State including courts and of corporations has been brought to a grinding halt, there can be no action in the courts of law to hold accountable those who have perpetrated the crime against humanity by being responsible for spread of the COVID-19 pandemic. The gravity of the situation can be gauged from the fact that courts are not able to hold regular hearings since over two months which is unprecedented. In my over forty years of legal career, I haven’t come across exigencies that made courts out of bounds for litigants in this manner. The predicament of lawyers has also been unimaginably dire. Other professionals are in no better position. I had been elected Vice Chairman of Bar Council of India, Vice President of Supreme Court Bar Association, Chairman and Vice Chairman of Bar Council of Delhi, and Executive Committee Member of Delhi High Court Bar Association. I was also Special Counsel for Government of India, Senior Additional Advocate General of Government of Haryana, Additional Advocate General of Government of Uttar Pradesh, Additional Advocate General of Government of Punjab and Additional Advocate General of Government of Tamil Nadu. From what I have experienced and learnt in these capacities, I can safely say that the damage has crossed the bulwarks of State machinery, that it is irreversible and will not only leave permanent scars on humanity, it will change the way the people lead their lives. Should this be a consequence of deliberate or conscious actions and omissions, it must not remain unquestioned. The law must empower. It must not place fetters on those who are suffering leaving them to become mute spectators to their own devastation.
The prompt manner in which India imposed a nationwide lockdown to counter the impact of COVID-19 on public life and to arrest its spread in India is commendable. The Union Government under your able leadership, has been proactive in doling out economic packages for the poor and for businesses alike. This monetary assistance extended for various purposes is roughly estimated to exceed Rs. 50,000 Lakh Crores by the time lockdown is lifted. The assistance has helped the survival of people during the closure of business activity.
There is convincing material to demonstrate that the spread of the pandemic is the handiwork of The People’s Republic of China. The virus is the creation of its laboratories under orders of the Govt. which is now trying to cover its tracks. The virus, developed with remarkable ability to mutate, spread and afflict, and with unprecedented rate of mortality, has been deliberately and consciously wreaked upon the world by the Govt. of China, as part of its design. I had been often visiting China for official purposes and am working on obtaining more specifics and collecting supporting evidence from my acquaintances. It needs to be noted that in an attempt to hide its lapses, China misled the world on several counts such as the nature of the Novel Coronavirus, its possible transmission from human to human, the rampant way in which it spreads etc. Due to deliberate acts and omissions and partly due to negligence on China’s part, the world is facing the gruelling task of trying to tame the pandemic. Every citizen of India has been affected from different angles. The affected persons wish to seek justice from the courts. They wish to launch a legal crusade to hold the Chinese Government accountable for its shortcomings and evil designs. One of the ways in which such accountability can be pinned is by judicial recourse for recovery of damages from the Chinese Government.
As per Doctrine of State Immunity, States enjoy protection from being sued in courts of other States and are exempted from prosecution or suits for the violation of the laws of another State. But this is applicable to only those States who have signed and ratified the United Nations Convention on Jurisdictional Immunities of States and their Property (“Convention”). It is pertinent to note at this juncture that India is a signatory to the Convention, having signed the same on 12.01.2007. So far India has not ratified the said Convention nor has it accepted it in any way. Therefore, India is not under any obligation to exempt China or any other country from being prosecuted or sued in India for any violations. More importantly, China is also a signatory to the said Convention and just like India, it has not ratified the same.
In India, however, there is a provision of law enshrined in the Civil Procedure Code, 1908 (“CPC”) that enumerates situations where a foreign state can be sued in India. Section 86 of CPC makes prior consent of Central Government a pre-condition for any such action to be taken and by way of sub-clause 2 carves-out four situations when the same can be done. For ready reference, the said clause is reproduced hereinbelow verbatim:
“86. Suits against foreign Rulers, Ambassadors and Envoys, –
(I) No foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government :
Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid a foreign State from whom he holds or claims to hold the property.
(2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which the foreign State may be sued, but it shall not be given, unless it appears to the Central Government that the foreign State,
(a) has instituted a suit in the Court against the person desiring to sue it, or
(b) by itself or another, trades within the local limits of the jurisdiction of the Court, or
(c) is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon, or
(d) has expressly or impliedly waived the privilege accorded to it by this section.
(3) Except with the consent of the Central Government, certified in writing by a Secretary to that Government, no decree shall be executed against the property of any foreign State.
(4) The preceding provisions of this section shall apply in relation to – (a) any ruler of a foreign State;
(aa) any Ambassador or Envoy of a foreign State;
(b) any High Commissioner of a Commonwealth country; and
(c) any such member of the staff of the foreign State or the staff or retinue of the Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in this behalf, as they apply in relation to a foreign State.
(5) The following persons shall not be arrested under this Code, namely: —
(a) any Ruler of a foreign State;
(b) any Ambassador or Envoy of a foreign State;
(c) any High Commissioner of a Commonwealth country ;
(d) any such member of the staff of the foreign State or the staff or retinue of the Ruler, Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country, as the Central Government may, by general or special order, specify in this behalf.
(6) Where a request is made to the Central Government for the grant of any consent referred to in sub-section (1), the Central Government shall, before refusing to accede to the request in whole or in part, give to the person making the request a reasonable opportunity of being heard.”
It should be noted that above provision allows suits to enforce contractual obligations in respect of trade activity in which a government is engaged but not for damages for commission of tort. There is no logic underlying this distinction. There is no reason for the victims of a tort to be left remediless against a delinquent State. The above provision does not envisage a situation such as the pandemic we are dealing with owing to acts of the State of China. Otherwise also, it is a well established principle that the law cannot bar the institution of a civil suit for enforcement of civil rights against any entity, unless it provides an alternate and efficacious channel for voicing the said grievance and for securing the relief. A law which tends to take away, completely, the capacity of a person to canvass his rights, is itself a nullity. As the law stands today, there is no other remedy available to an individual against the State of China. An individual can also not approach, directly, the International Court of Justice for seeking damages.
Given the exceptional circumstances we as a nation are facing, I put forth the following suggestions to pave the way for decisive corrective action against China to bring justice to the people of India.
Section 86 of the Code of Civil Procedure, 1908 should be wholly abrogated since, as demonstrated above, the international obligations of the country do not require any such provision in the Code.
Alternatively, Section 86 of the Code of Civil Procedure, 1908 should be amended to enlist classes of suits that are permitted and that list may include suits based on torts committed by the foreign State. The filing of the suit should not be dependent on permission to be obtained from the Government of India as the Indian Government is in no position to assess the legal merits of each proposed suit. Nor does it have the wherewithal or mechanism to examine the facts in dispute and hold a mini-trial on a proposed suit, and to decide if it is a frivolous or a meritorious one. This exercise is best left to courts and Indian Courts are fully empowered to reject plaints at the very outset in the event of a suit being meritless or frivolous. The Courts also have the power to impose costs on a litigant for prosecuting such a suit. The foreign State is thus fully protected against vexatious suits under the ordinary law of procedure and no additional layer of protection may be necessary. The creation of a supplementary forum for pre-litigation scrutiny of suits would be superfluous and only contributes to delay, harassment of the litigant and complexity of the law, all of which are vices that need to be avoided.
Another alternative is to amend the abovenoted provision and include suits on torts in the list of categories of suits that would be permitted. This category must include suits where there has been widespread damage to life, property and occupation. This could be done while retaining the requirement of obtaining permission for certain classes of suits if the Government is of the opinion that this requirement must not be dispensed with. This entails engrafting a new sub-clause (e) to be added to the abovementioned Section 86(2) by way of an amendment.
To expedite the judicial recourse that can be taken in the current situation, I also humbly suggest that the said amendment should be swiftly brought out by way of an Ordinance. In the past the Hon’ble President of India (during your dynamic Prime Ministership) has promulgated such Ordinances whenever the situation has been compelling viz. The Epidemic Diseases (Amendment) Ordinance, 2020; The Taxation Laws (Amendment) Ordinance, 2019; Central Educational Institutions (Reservation in Teachers’ Cadre) Ordinance, 2019; Companies (Amendment) Ordinance, 2019; Companies (Amendment) Ordinance, 2018; The Criminal Law Amendment Ordinance, 2018; Payment of Wages (Amendment) Ordinance, 2016; Enemy Property (Amendment and Validation) Fifth Ordinance, 2016; Enemy Property (Amendment and Validation) Fourth Ordinance, 2016; Enemy Property (Amendment and Validation) Third Ordinance, 2016; Dentists (Amendment) Ordinance, 2016; Indian Medical Council (Amendment) Ordinance, 2016; Enemy Property (Amendment and Validation) Second Ordinance, 2016; Enemy Property (Amendment and Validation) Ordinance, 2016; Arbitration and Conciliation (Amendment) Ordinance, 2015; Negotiable Instruments (Amendment) Second Ordinance, 2015; Negotiable Instruments (Amendment) Ordinance, 2015; Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Second Ordinance, 2015; Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2015; Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015; Motor Vehicles (Amendment) Ordinance, 2015; Citizenship (Amendment) Ordinance, 2015; Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014; Insurance Laws (Amendment) Ordinance, 2014; Coal Mines (Special Provisions) Second Ordinance, 2014; Textile Undertakings (Nationalisation) Laws (Amendment and Validation) Ordinance, 2014; Andhra Pradesh Reorganisation (Amendment) Ordinance, 2014; Telecom Regulatory Authority of India (Amendment) Ordinance, 2014; Securities Laws (Amendment) Ordinance, 2014; Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance, 2014. Moreover, there is no international obligation on India’s part that bars such a law, as is suggested here through this letter, from being provided for.
In fact, such action would bring India in alignment with what is being done internationally. In the United States, for example, a Bill has been moved officially in the US Senate, “To amend Title 28, United States Code, to provide a civil action against a foreign state for deliberate concealment or distortion of information with respect to an international public health emergency, and for other purposes.” Clearly, it is being done to hold China accountable for its nefarious role in the pandemic.
There are innumerable people in our country who have suffered and may be desirous of initiation of legal remedies. People have lost their kin and their jobs. Businesses have wound up. Lawyers have been suffering too. Financial losses and hardships have been colossal. The law must not stand in the way of the quest for justice by those who are aggrieved.
It is my genuine hope that the Government, which has been steadfast in its commitment to welfare of the Indian people, will act on the suggestions enabling righteous citizens to take fair action against those responsible for this indignation and to immediately amend the outdated Section 86 in the CPC, 1908 enabling citizens of India to sue the Government of China in the Indian courts to recover the losses due to Covid-19, particularly for the legal fraternity comprising of 20 Lakh lawyers in the country, whose losses computed at the rate of Rs. 20 Lakh, each would total to Rs. 4 Trillion.
With regards,
Yours sincerely,
(Dr. Adish C Aggarwala)
Senior Advocate
Chairman, All India Bar Association
Mobiles : 9958177904, 9868510674
CC:
Mr. Ravi Shankar Prasad,
Union Minister for Law & Justice,
New Delhi;
Email: mljoffice@gov.in
Mr. Anoop Kumar Mendiratta,
Secretary, Union Ministry for Law & Justice,
New Delhi;
Email : secylaw-dla@nic.in
for information and necessary action
