Panikkarveetil K. Jabir vs Union Of India on 19 September, 2007 Delhi High Court
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Author: S R Bhat
Bench: S R Bhat
S. Ravindra Bhat, J.
1. The petitioner seeks a quashing order or direction to set aside an order dated the 29th of July 1998 made by the second respondent in these proceedings, i.e. the Ministry of External Affairs, Central Government. By that order (hereafter called 'the impugned order'), the respondents declined an application of the petitioner for permission to sue the Government of the United Arab Emirates (UAE).
2. The petitioner alleges that on 1 June 1979, after completing his studies and acquiring work experience, he went to Dubai and joined empoloyment with one M/s Cloissal. He left that employment after three years and went to Abu Dhabi, for better employment prospects. On 1 April 1995 he started his own business, called Ram Lum Electromechanical Establishment. Later, sometime in 1990 he opened a second concern, M/s Premier General (Contracting Establishment). It is stated that on 9 September 1995 the petitioner entered into a tenancy contract with one Mr. Hassan Saeed, for renting a nine storey building comprising of 24 flats. It is claimed that there was some breach of contract; the petitioner filed civil proceedings against the said Mr. Saeed. On 24th October 1995, the court issued an order stopping payment of a cheque. The order apparently operated against Mr Saeed.
3. It is alleged that after the court order, on 26th of October 1995 : the petitioner was harassed by the Lesser in collusion with police authorities. After an incident where the petitioner was threatened by the said Saeed, he sought intervention of the police. It is claimed that instead of extending support, the petitioner and his brother were falsely implicated by the landlord in collusion with a police official. Consequently they were detained and kept in custody. Apparently on 10th of April 1996, the court of first instance at Abu Dhabi held that the charges levelled against the petitioner were unfounded; he was declared innocent. Despite this, the prosecuting agency appealed to the higher court. The appellate court directed the petitioner to be enlarged on bail, by its order dated 13th of May 1996. Yet the petitioner was not freed from custody and had to await hearing. A 19th of May 1996 he was found innocent and the appeal preferred against him was rejected. Later on 28th of September 1996 the head of security issued an order directing the petitioner's deportation. A similar order was made against the petitioner's brother. Both of them had to return back to India without their belongings or their earnings. All those had to be left behind in Abu Dhabi.
4. After his return to India, the petitioner represented to the Central government, seeking permission to sue the third respondent, i.e. the Government of United Arab Emirates. A request was made to the National Human Rights Commission. The Central Government did not respond to the application to sue the third respondent, under Section 86 Code of Civil Procedure, 1908 (CPC). As a result the petitioner moved the Supreme Court of India under Article 32 of the Constitution of India for an appropriate direction. The petition was however permitted to be withdrawn by the Supreme Court's order dated 26 August 1997. It granted him liberty to file a writ proceeding under Article 226 of the Constitution of India. Therefore he approached this Court, filing WP 4972/1997. That petition was disposed of on 20-11-1997 with a direction to respondents to consider and decide the representation of the petitioner within two months. After this order, the petitioner addressed three representations to the respondents for leave to sue the third respondent. Finally, on 29th of July 1998, the Ministry of external affairs, central government, declined the request by the impugned order. That order, to the extent it is relevant to decide the present case, is extracted below:
please refer to your letter dated 14-5-1998 regarding Shri
Panikkaveetil K. Jabir who is seeking to sue the government
of UAE because of the injustice suffered by him while doing
business in UAE.
The permission to sue a Foreign Government in this case,
UAE, cannot be granted on the ground that certain injustices
were suffered while doing business there. It is to be noted
that any business initiatives in any foreign land should
respect local laws. Accordingly, Shri Jabir should pursue his
legal action has already done by him through the UAE
courts. In India he cannot sue a foreign government, i.e.
UAE government, as there is no direct cause of action lying
against that Govt.
Although permission under Section 86 cannot be granted for
suing the UAE Govt. we are taking up the matter with our
Embassy in Abu Dhabi once again, requesting them to
pursue this case at appropriate levels.
This issues in accordance with legal advice given by the L
and T Division of the Ministry of External Affairs.
Under Secretary (Cons)
5. It is contended by Learned Counsel for the petitioner that the
impugned order is is unsustainable because it is not founded on
reason. The ground for refusing permission to sue is utterly arbitrary
and therefore not justified. The petitioner had to undergo extreme
hardship and privation in the UAE, and face palpably false charges.
This led to his illegal incarceration for about seven months. He was
also deported for no rhyme or reason even though the court
completely exonerated him and implicitly held that the accusers had
committed a crime. Though a victim, the petitioner was treated and
insulted as though he were an accused. He as well as his brother had to
undergo economic losses as they were not permitted to take back their
properties and monies. These clearly resulted in invasion of their right
to life and livelihood under Article 21 of the Constitution of India.
Besides, this also violated the right to liberty and property which the
Government of the UAE was bound to honour as it was part of the
customary international law, embodied in the Universal Declaration of
Human Rights as well as the International Covenant on Civil and
Political Rights, 1966.
6. Learned Counsel relied upon the judgment of the Supreme Court
reported as Harbhajan Singh Dhall v. Union of India . The court had
held as follows:
There is an implicit requirement of observance of the principles of
natural justice and also implicit requirement that the decision must be
expressed in such a manner that reasons can be spelt out from such
decision. Though this is and administrative order in a case of this
nature there should be reasons.
Counsel also relied upon the judgment of the Supreme Court reported
as Shanti Prasad Agarwal v. Union of India 1991 Supp (2) SCC 296 to
say that the order of the Central Government refusing permission should disclose intelligible reasons for rejecting the application under Section 86 of the Code of Civil Procedure (CPC).
7. It was urged that the petitioner's rights under various international
covenants and treaties were infringed, when he was unlawfully
detained for a substantial period and later, unjustly deported without
permission to repatriate his hard earned money.
8. The petition was opposed by the respondents. It was urged on their
behalf that the impugned order is not arbitrary. The question of suing
the Government of UAE would arise if a cause of action or grievance
arose in India. However, the petitioner is seeking permission to sue
the said government for something which happened in the UAE. It was
not as if the UAE did not have any legal system, where litigants could
claim redressal of their grievances. Indeed, the petitioner's grievances
were addressed by the courts in that country; they acquitted him of the
9. The question requiring decision in this case is whether the
impugned order declining permission to sue the Government of UAE
is legal. The facts are not in dispute; the petitioner and his brother
were detained on false charges. The court of first instance acquitted
them; yet the prosecutor appealed. The appellate court upheld the
acquittal. The petitioner later had to leave the country. His request for
permission to sue the Government of UAE, under Section 86 of the
Code of Civil Procedure was declined, by the impugned order.
10. Section 86 enjoins, as a condition precedent for the filing of a suit
or civil action in the courts in India, approval by the Central
Government, where the defendant is a foreign Government or State.
The rationale for the exemption of sovereign states from jurisdiction of
Courts of other states is that the exercise of such jurisdiction would be
incompatible with the sovereign's dignity that is to say, with its
absolute independence of every superior authority Ref The Parlement Beige (1880) L.R. 5 P.D. 197, 207. In Rahimtoola v. Nizam of
Hyderabad and Anr.  A.C. 379, a slightly discordant note was
mooted, provided the cause of action arose within jurisdiction of the
There is no reason why we should grant to the departments or
agencies of foreign Governments an immunity which we do not grant
our own, provided always that the matter in dispute arises within the
jurisdiction of our courts and is properly cognizable by them.
11. In Harbhajan Singh Dhall, i.e. the case cited on behalf of the
petitioner, it was held as follows:
In this case there is no provision of any appeal from the order of the
Central Government in either granting or refusing to grant sanction
under Section 86 of the Code. This sanction or lack of sanction may,
however, be questioned in the appropriate proceedings in court but
inasmuch as there is no provision of appeal, it is necessary that there
should be an objective evaluation and examination by the appropriate
authority of relevant and material factors in exercising its jurisdiction
under Section 86 by the Central Government. There is an implicit
requirement of observance of the principles of natural justice and also
the implicit requirement that decision must be expressed in such a
manner that reasons can be spelled out from such decision. Though
this is an administrative order in a case of this nature, there should be
reasons. If the administrative authorities are enjoined to decide the
rights of the parties, it is essential that such administrative authority
should accord fair and proper hearing to the person to be affected by
the order and give sufficiently clear and explicit reasons. Such reasons
must be on relevant material factors objectively considered. There is
no claim of any privilege that disclosure of reasons would undermine
the political or national interest of the country.
12. The entire basis of the petitioner's grievance is that the suffered
indignities and financial losses in the hands of certain government
officials, as well as private individuals. these actions took place at Abu
Dhabi; there is no dispute that the petitioner had recourse to legal
remedies in that place; indeed his explanation was accepted by the
local courts and he was acquitted of criminal charges. There is no
averment in these proceedings as to why recourse to the Indian legal
system is necessary, or as to how the cause of action, or any part of the
cause of action arose in the territory of India. In the absence of any
indication as to impediment in law, in seeking remedies within the
legal system of the UAE, and a corresponding causation enabling filing
of civil proceedings in this country, the reason given by the
respondents cannot be characterized as irrelevant or wholly arbitrary.
I am unpersuaded to subscribe to the petitioner's view that the reasons
given were unfounded, or based on considerations that were not
13. In view of the above conclusions, the petition has to fail. It is
accordingly dismissed, without any order as to costs.
Get the copy: Representation for ‘Indo-Gulf Reparation Mechanisms’
Download the Representation (PDF 1.58 MB Size)
Return to:Â âIndo-Gulf Reparation Mechanismsâ
"The individualâs Right to Reparation is expressly guaranteed by Global and Regional Human Rights Instruments. Due recognition of victimhood plays a very important role in reparations granted by international human rights law - Permanent Court of International Justiceâ It is in this context that we proposed to submit a representation to the government of India, the Ministry of External Affairs (MEA) and the Ministry of Overseas Indian Affairs (MOIA) to evolve an effective Reparation Mechanism between the Union Government of India and the Gulf Countries in order to help the harm suffered.
The larger part of the Principles and Guidelines, with strong domestic law implications, sets out the status and the rights of victims, and corresponds to the title of the document as it refers to the right of victims to a remedy and reparation. (Resolution adopted by the General Assembly remedies [UN] 11-23). It is a well known fact, that India is not a signatory of the Rome Statute of United Nations, the 'constitutional' principle of the permanent International Criminal Court (ICC or âthe Courtâ) nor any âReparation Mechanismsâ within its own territory as a matter of domestic jurisdiction.
1) International Human Rights Law & Protection Mechanisms’
The United Nations is an international organization founded in 1945. All Member States of United Nations (UN) have an obligation to promote and protect Human Rights and fundamental freedoms as stated (in Articles 55 and 56) in the Charter of the United Nations. The UN Charter | The General Assembly | The Security Council | International Court of Justice | OHCHR | UN Charter-Based Mechanisms | UN Human Rights Council | UN Treaty-based bodies | International Human Rights | Special Procedures of the Human Rights Council | The Paris Principles | The UN system | The Trust Fund for Victims (TFV) | Complaint Procedure
Global Practice of ‘Human Rights Law & Protection Mechanism’
Since the establishment of United Nations, a wide range of Human Rights instruments have been developed in different regions of the world to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.
American Mechanisms | European Mechanisms | African Mechanisms | The Paris Principles | The Human Rights Council | International Human Rights Mechanisms
(2) IX. Reparation for harm suffered (A/RES/60/147)
"States shall, with respect to claims by victims, enforce domestic judgements for reparation against individuals or entities liable for the harm suffered and
endeavour to enforce valid foreign legal judgements for reparation in accordance
with domestic law and international legal obligations. To that end, States should
provide under their domestic laws effective mechanisms for the enforcement of
reparation judgements" Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law. rights-remedy-reparations-general-assembly.pdf (size 146 kb)
(3) Article 8 of the Universal Declaration of Human Rights expresses this principle as follows:- "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law." Universal Declaration of HumanRights, G.A. Res. 217A, art. 8, U.N. GAOR, 3d Sess., 1st plen. Ntg,m U.N.Doc. A/810 (Dec. 12, 1948)
(4) Article 2(3) of the International Covenant on Civil and Political Rights obligates States "to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy," and "[t]o ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities." International Covenant on Civil and Political Rights, art.2(3), Dec. 16. 1966, S. Exec. Doc. E, Doc.E, 95-2 (1978), 999 U.N.T.S. 171 [International Covenant on Civil and Political Rights - ICCPR].
(5) Human Rights Treaties Obligate States to Provide Effective Remedies for Victims of Human Rights Violations. The principle of effective remedy, or effective reparation is a golden thread that runs through all modern international human rights treaties (American Bar Council). Professor Theo van Boven, an expert in the field of remedies for violations of international human rights law, explained the legal principle as follows:- "As the result of an international normative process the legal basis for a right to a remedy and reparation became firmly anchored in the elaborate corpus of international human rights instruments, now widely ratified by States." (Adopted by General Assembly resolution 40/34 of 29 November 1985 - Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power)
justice-for-victim-of-crime.pdf (size 79.6 kb)
(6) Legal Framework of Rome Statute
The legal framework of Rome Statute is based on respect for individual rights and freedoms and included mechanisms to ensure impartial justice...The full text