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

JUDGMENT
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:

Dear Sir,
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. Yours faithfully,

(N.U. Avirachen)
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 charges.

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. [1958] A.C. 379, a slightly discordant note was mooted, provided the cause of action arose within jurisdiction of the host country:

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 material.

13. In view of the above conclusions, the petition has to fail. It is accordingly dismissed, without any order as to costs.

Source: http://www.judgmentforsale.com/publications.html

Get the copy: Representation for ‘Indo-Gulf Reparation Mechanisms’

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Principal Resources:-

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

Useful Links:-

The Universal Declaration of Human Rights...Read More

What’s Reparation Law?
The various forms of reparation law and their scope and content, covering both monetary and non-monetary reparations, may be summarized in its five forms consists restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. Reparation shall render justice by removing or redressing the consequences of the wrongful acts and by preventing and deterring violations... What’s Reparation Law

Defining the Goals of Reparations
The quest for protecting individuals from mass atrocities is as old as the UN Charter and the Universal Declaration of Human Rights. 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... Defining the Goals of Reparations

The Concept of Reparations
Reparation for the victims or survivors of torture, which is their right under international and many national laws, is becoming more and more a realistic possibility. As a result, many legal academics and lawyers, sociologists, medical practitioners and psychologists are now discussing the concept of reparation...The Concept of Reparations

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.
http://www.reparationlaw.com/statepractices/remedy-reparations-state-responsibilities.php

An introductory note by Prof. Dr. Theo van Boven
http://www.reparationlaw.com/resources/treaties-international-law-scholars-experts/

A Handbook on Justice for Victims
A Handbook on Justice for Victims based on the use and application of the ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’....More

A Handbook Implementing Victims' Rights
Handbook on the Basic Principles and Guidelines on the Right to a Remedy and Reparation - Handbook prepared by The Redress Trust
http://www.redress.org/downloads/publications/Reparation%20Principles.pdf

Reparations Law Debate:-
Reparation has progressively been conceived as a ‘Right’ of victims.