– globalbihar bureau
New Delhi: The All India Bar Association (AIBA) has urged the Modi government to promulgate an ordinance to the Civil Procedure Code to pave way for filing suits to claim 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 Adish C. Aggarwala has requested the Prime Minister to immediately amend the outdated Section 86 in the CPC, 1908 enabling citizens of India to sue the Government of China in the Indian courts to recover the losses due to Covid-19 and especially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.
The AIBA chairman in his letter referred to a “grey area” in the law that he said was 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,” he said.
Dr. Aggarwala is also the Chairman of International Council of Jurists which has already petitioned the United Nations Human Rights Commission for action against China. (Read:International Council of Jurists moves UNHRC against China for COVID-19 reparations).
In his letter to Prime Minister Modi, 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,” he pointed out.
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,” he wrote in the letter. He further added: “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.
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 Government 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 Government of China, as part of its design,” he claimed. He further claimed in his letter 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. “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 said.
“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 wrote.
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.[the_ad_placement id=”sidebar-feed”]