by Harisankar K S*

 

As the Prime Minister of India was all set to start his historic visit to the United States of America, after a decade long visa ban, a federal court in New York issued a summons on the basis of a complaint filed by American Justice Center, a New York based human rights group. The said law suit is based on the Alien Tort Claims Act, also known as Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA) seeking compensatory and punitive damages from Mr. Narendra Modi for his alleged role in orchestrating riots targeted mainly against the Muslim community in Gujarat during 2002 while he was serving as the chief minister. According to media reports, the court order requires the respondent to answer within 21 days from the date of service, default of which would lead to a judgment in favour of the claimants. In the wake of a sudden publicity on this matter, it is necessary to look at the tenability of the legal action against the Indian premier.

The two U.S legislations on which the complaint and the eventual summons order was founded, namely, Alien Tort Statute and Tort Victim Protection Act share many commonalities. The latter was enacted as a note to the former in the United States Code. Empirical data shows that claims under ATS and TVPA are filed in conjunction with each other. More importantly, a large majority of US court decisions approve the view that both statutes can be used simultaneously and the interaction between them supplements each other.

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Prima facie ATS grants federal jurisdiction to aliens exclusively for tortious claims that are committed in violation of the law of nations or a treaty of the United States. On the other hand, TVPA in all it specificity accords substantive cause of action to US citizens and non-citizens for claims of torture and extra-judicial killing. The important question here is, whether or not the alleged involvement of Modi in the 2002 riots falls under the definition of torture and extra judicial killing under this Act, but the jurisdiction of the New York court and the putative cause of action.

Before moving on to the defences available to the PM in this case, it is important to note that, the Supreme Court appointed Special Investigation Team and courts in India have already exonerated him of any wrongdoing.  Notwithstanding this clean chit, I would like to enumerate certain unclouded defences available to the Indian Prime minister under the US code as well as international law.

 Presumption against extra territoriality

In April 2013, the US Supreme Court in its verdict in Kiobel v Royal Dutch Petroleum held that ATS shall not apply “where all the relevant conduct took place outside the United States”. The Supreme Court dismissed the particular claim on the basis of a domestic canon of statutory interpretation stating that, “without a clear legislative indication, the statute does not apply extraterritorially”. Thus, it essentially eliminated the scope of any law suit based on ATS in which the alleged conduct took place entirely within a foreign territory. It is important to note that, despite the controversy invoked by the Kiobel decision on the future of transnational human rights litigation, the concept of Uniform Civil Jurisdiction has not been recognised under International Law. Also, the New York court order is a blatant violation of the doctrine of stare decisis, one of the fundamental concepts in the common law system, by which decisions of the US Supreme court binds all federal courts.

Locus Standi of the Plaintiff

According to media reports, the contentious law suit was filed by the American Justice Centre (AJC), a non-profit human rights organisation on behalf of two Indians who have been described as survivors of the horrific and organised violence of Gujarat 2002. First, only an alien (non U.S citizen) can bring a claim before a court in the U.S under ATS. AJC being an organisation registered under the laws of New York remain unqualified at the very outset. Plaintiffs in a legal action pursuant to TVPA must be a human being (i.e., victim) in case of ‘torture’ as defined under the Act and a legal representative in the case of ‘extra judicial killing’. In a unanimous decision in Mohamad v Palestinian Authorities (2012) the U.S Supreme Court, while holding that TVPA imposes liability only on individuals, held that only natural persons, as opposed to any other legal person, can be a ‘proper plaintiff’ under the act. Presumably, in the absence of propriety of this plaint, AJC does not qualify as a proper plaintiff in this law suit.

 

Exhaustion of Local Remedies and Time limit

The TVPA explicitly requires that plaintiffs must exhaust local remedies before pursuing legal action in U.S Courts. Thus, a U.S court shall decline to hear a claim, if the claimant has not exhausted adequate and available remedies in the place in which the conduct occurred. The principle of ‘exhaustion of local remedies’ is widely recognised as a general principle of international law. Every other major international convention on human rights provides for the local remedies rule. It is necessary that the State where the violation occurred should have an opportunity to redress it by its own means, within the framework of its own domestic legal system. Here, there is no evidence to show that the said “survivors of the horrified and organised violence of Gujarat 2002” exhausted the local remedies available in the courts of host State (India).

In addition to the local remedies rule, a requirement of utmost important is the need to file the law suit within the time period prescribed under the Statute. TVPA sets a ten year time limitation for claims relating to torture and extra judicial killing. One could argue that the requirements of exhausting the local remedies and the time bar does not apply against claims based on ATS, as the statute is silent on this. However, considering the common purpose of both enactments as well as the view taken by majority of US court decisions, these substantive requirements provided under the TVPA can be read into ATS, unambiguously. Also, it is a matter of public policy and practical necessity that the threat of any civil litigation must come to an end at some stage. In accordance with a study conducted by the Institute of International Law (1925), in matters of a non-criminal nature the limitation of actions is a general principle of international law. Undoubtedly, the matters in this case must be treated as of non-criminal nature; otherwise the application of the above mentioned US statutes becomes completely baseless.

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Immunity 

Last, but not the least, the Indian Prime Minister can enjoy all sets of immunity accorded by international law.  Under customary international iaw, Heads of States and Governments posses personal immunity (immunity rationae personae) from the jurisdiction of courts in the foreign state. Additionally, international treaties like Vienna Convention on Diplomatic Relations (1961) confer special immunities to representatives of States to international organisations. As Narendra Modi would be addressing the UN General Assembly during his U.S visit, Convention on the Privileges and Immunities of the United Nations (1946) shall, provide him immunity from legal process of every kind. He can enjoy this privilege even during the journey to and from the place of meeting. In such case, the possibility of New York federal court serving the legal process on the PM during his stay in US would be utterly unwarranted.

To conclude, the action of the Federal Court of Southern District of New York in summoning Mr. Narendra Modi on the basis of a seemingly promotional law suit is clearly without jurisdiction. In so doing, the court has breached the global norms of civil litigation, including the principle of comity and the forum non convenience principle. To quote Prof. Eric Posner of the University of Chicago, “American judges have no idea what sorts of human rights norms can realistically be enforced abroad and when enforcement may upset delicate international relationships, or cause turmoil among the populations it seeks to help. We have slowly been getting use to the idea that the United States cannot be the world’s policeman. It cannot be the world’s courthouse, either.”

 

*Author is a Doctoral Candidate at Faculty of Law, National University of Singapore and member of the Centre for Public Policy Research. He can be reached at harisankar@nus.edu.sg.

 

PS: The opinion of the Author is purely personal and does not reflect in any manner the opinion of CPPR.

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