Code of Civil Procedure, 1908 (CPC)
Suits Involving Aliens, Foreign States and Rulers: Sections 83 to 87B CPC
Two quite different questions arise when a civil suit touches a foreign element. The first is whether a foreigner may sue in an Indian court, and the Code answers it generously: an alien friend may sue as if he were a citizen. The second is whether a foreign State or ruler may be sued, and here the Code is restrictive, requiring the consent of the Central Government in writing before any such suit may be instituted. Sections 83 to 87B of the Code of Civil Procedure, 1908 contain both answers, along with the procedure for suits by or against rulers, ambassadors and envoys. These notes cover the whole group.
1. Suits by Aliens: Section 83
§ Section 83, CPC 1908 (in substance) Alien enemies residing in India with the permission of the Central Government, and alien friends, may sue in any Court otherwise competent to try the suit, as if they were citizens of India, but alien enemies residing in India without such permission, or residing in a foreign country, shall not sue in any such Court. Explanation. Every person residing in a foreign country whose Government is at war with India and carrying on business in that country without a licence in that behalf granted by the Central Government shall, for the purpose of this section, be deemed to be an alien enemy residing in a foreign country. |
§ The three categories The section divides foreigners into three classes: • Alien friends. Nationals of a State at peace with India. They may sue as if they were citizens, without any special permission, in any court otherwise competent. Their right of access is complete. • Alien enemies residing in India with the permission of the Central Government. They too may sue as if they were citizens. The permission to reside is what restores the capacity. • Alien enemies residing in India without permission, or residing in a foreign country. They may not sue. The disability is one of capacity to institute a suit, and the Explanation extends it to a person carrying on business in an enemy country without a licence. |
Two points complete the picture. The disability is on suing, not on being sued: an alien enemy may be sued, and if sued may defend himself, since otherwise a claim against him could not be resolved. And the disability is suspensory rather than destructive: the right of action survives the war, and limitation is dealt with by Section 15(2) of the Limitation Act, 1963, which excludes from the period the time during which the plaintiff was prohibited from suing.
2. Suits Against Foreign Rulers, Ambassadors and Envoys: Section 86
§ Section 86(1), CPC 1908 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. |
§ Section 86(2): when consent may be given Such consent may be given with respect to a specified suit, or with respect 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. |
§ The rest of Section 86 Four further provisions complete it: • Sub-section (3). No decree shall be executed against the property of any foreign State except with the consent of the Central Government certified in writing by a Secretary. Consent to be sued is therefore not consent to execution: a second consent is required. • Sub-section (4). The preceding provisions apply, as they apply to a foreign State, to the Ruler of a foreign State, to any Ambassador or Envoy of a foreign State, to a High Commissioner of a Commonwealth country, and to such members of the staff of the foreign State, the Ambassador or the High Commissioner as the Central Government may by notification specify. • Sub-section (5). The following persons shall not be arrested under the Code, and, except with the consent of the Central Government certified as aforesaid, their property shall not be attached or sold: a Ruler of a foreign State, an Ambassador or Envoy, and a High Commissioner of a Commonwealth country. • Sub-section (6). Where a request is made to the Central Government for its consent, the Government shall not refuse it without affording the person making the request a reasonable opportunity of being heard, and the reasons for the refusal must be given. |
3. Sovereign Immunity and Its Limits
§ What Section 86 does and does not do It is a procedural immunity, not a substantive one. Section 86 does not say that a foreign State owes no obligations; it says that it may not be sued without consent. The right may exist while the remedy is conditioned. The grounds in sub-section (2) mirror the restrictive theory of sovereign immunity. Under the older absolute theory, a sovereign could not be impleaded at all. The modern restrictive theory distinguishes acts done in the exercise of sovereign authority from commercial or private acts, and withholds immunity for the latter. Clauses (b) and (c), trading within the jurisdiction and possession of immovable property, are exactly that distinction, and clause (d) recognises waiver. Consent is a matter for the executive, but not an unreviewable one. Sub-section (6) requires a hearing before refusal and reasons for it, which subjects the decision to the ordinary standards of administrative law. Execution requires a separate consent. Sub-section (3) makes the point expressly: a decree-holder who has obtained consent to sue must obtain consent again before executing against the property of a foreign State. |
Two related instruments should be mentioned. Section 87A defines a foreign State as any State outside India which has been recognised by the Central Government, and a Ruler in relation to such a State as the person recognised by the Central Government as its head. And Section 87B applies the provisions of Section 85 and of sub-sections (1) and (3) of Section 86 to the Rulers of former Indian States, in relation to causes of action arising before the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, which abolished privy purses and princely privileges.
4. Suits by Foreign Rulers and the Procedure: Sections 84, 85 and 87
Provision | What it provides |
|---|---|
Section 84 | A foreign State may sue in any Court otherwise competent to try the suit, provided that the object of the suit is to enforce a private right vested in the Ruler of such State or in any officer of that State in his public capacity |
Section 85(1) | Persons specially appointed by order of the Central Government at the request of a foreign State to prosecute or defend any suit on its behalf shall be deemed to be the recognised agents by whom appearances, acts and applications may be made or done on its behalf |
Section 85(2) and (3) | Such an appointment may be general or special, and is evidenced by a writing signed by a Secretary to the Government and filed in court; the persons so appointed may appoint pleaders in the ordinary way |
Section 87 | A Ruler of a foreign State may sue, and shall be sued, in the name of his State; but in giving the consent referred to in Section 86, the Central Government may direct that a Ruler may be sued in the name of an agent or in any other name |
Section 87A | Defines foreign State as a State outside India recognised by the Central Government, and Ruler as the person recognised by it as the head of that State |
Section 87B | Applies Section 85 and Section 86(1) and (3) to the Rulers of former Indian States, for causes of action arising before the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971 |
5. The Scheme in Summary
Question | Answer | Provision |
|---|---|---|
May an alien friend sue in India? | Yes, as if he were a citizen, in any court otherwise competent | Section 83 |
May an alien enemy sue? | Only if residing in India with the permission of the Central Government; otherwise not | Section 83 |
May a foreign State sue in India? | Yes, where the object is to enforce a private right vested in its Ruler or in an officer in his public capacity | Section 84 |
May a foreign State be sued? | Only with the consent of the Central Government certified in writing by a Secretary, and only on one of the four grounds | Section 86(1) and (2) |
Is a tenant an exception? | Yes. A tenant of immovable property may sue the foreign State from whom he holds or claims to hold it, without consent | Proviso to Section 86(1) |
May a decree be executed against a foreign State's property? | Only with a separate consent of the Central Government certified in writing | Section 86(3) |
Are ambassadors and envoys protected? | Yes; the provisions apply to them and to High Commissioners, and they may not be arrested, nor their property attached or sold without consent | Section 86(4) and (5) |
Can consent be refused arbitrarily? | No. It shall not be refused without affording the applicant a reasonable opportunity of being heard, and reasons must be given | Section 86(6) |
6. Landmark Points
- Section 83. Alien friends, and alien enemies residing in India with permission, may sue as if they were citizens; alien enemies residing without permission or in a foreign country may not sue.
- Section 84. A foreign State may sue to enforce a private right vested in its Ruler or in an officer in his public capacity.
- Section 86(1). No foreign State may be sued except with the consent of the Central Government certified in writing by a Secretary, save by a tenant suing the State from whom he holds the property.
- Section 86(2). Consent may be given only where the foreign State has sued in the court, trades within its limits, is in possession of immovable property there and is sued with reference to it, or has waived the privilege.
- Section 86(3). A separate consent is required before a decree is executed against the property of a foreign State.
- Section 86(6). Consent shall not be refused without a reasonable opportunity of being heard, and reasons must be given.
- Sections 87A and 87B. The definitions of foreign State and Ruler, and the application of the provisions to Rulers of former Indian States for pre-1971 causes of action.
7. Frequently Asked Questions
Can a foreigner sue in an Indian court?
Yes. Under Section 83 an alien friend may sue in any court otherwise competent to try the suit as if he were a citizen of India, and so may an alien enemy residing in India with the permission of the Central Government. An alien enemy residing in India without permission, or residing in a foreign country, may not sue.
Can an alien enemy be sued?
Yes. The disability in Section 83 is on instituting a suit, not on being sued, and an alien enemy who is sued may defend himself. The right of action he cannot presently enforce survives, and Section 15(2) of the Limitation Act, 1963 excludes the period during which he was prohibited from suing.
Can a foreign State be sued in India?
Only with the consent of the Central Government certified in writing by a Secretary to that Government, under Section 86(1). The single exception is in the proviso: a tenant of immovable property may sue, without consent, the foreign State from whom he holds or claims to hold the property.
On what grounds may consent be given under Section 86?
Only where it appears to the Central Government that the foreign State has instituted a suit in the court against the person desiring to sue it, or trades within the local limits of its jurisdiction, or is in possession of immovable property there and is to be sued with reference to it or for money charged on it, or has expressly or impliedly waived the privilege.
Is consent to sue also consent to execute?
No. Section 86(3) requires a separate consent of the Central Government, certified in writing by a Secretary, before a decree is executed against the property of a foreign State. A decree-holder must therefore obtain consent twice.
Are ambassadors and envoys covered by Section 86?
Yes. Sub-section (4) applies the section to the Ruler of a foreign State, to Ambassadors and Envoys, to High Commissioners of Commonwealth countries and to notified members of their staff; and sub-section (5) provides that such persons shall not be arrested, and their property shall not be attached or sold without the Central Government's consent.
Can the Central Government refuse consent without reasons?
No. Section 86(6) provides that where a request for consent is made, it shall not be refused without affording the person making the request a reasonable opportunity of being heard, and the reasons for the refusal must be given.
What is the difference between absolute and restrictive sovereign immunity?
Under the absolute theory a sovereign could not be impleaded at all. Under the restrictive theory, immunity attaches to acts done in the exercise of sovereign authority but not to commercial or private acts. The grounds in Section 86(2), trading within the jurisdiction, possession of immovable property and waiver, reflect the restrictive approach.
8. Related Topics in This CPC Series
- Suits by or Against the Government: Sections 79 to 82 and Order XXVII
- Foreign Judgments: Sections 13, 14 and 44A
- Transfer of a Decree for Execution: Sections 39 to 45
- Jurisdiction of Civil Courts: Section 9, Types and Section 21