Is Section 86 of C.P.C. wide enough?

Introduction:

COVID-19 has shattered the economy of India and greatly affected the lifestyle of the people all over the world. Most of the countries like the United States, Italy and Russia suffered a huge loss of lives. The virus is said to have spread from Wuhan, China. So, countries started to sue China to bear all the commercial losses faced by them due to this pandemic. Similarly, the Chairman and Senior Advocate of All India Bar Association wrote a letter to the Prime Minister of India against China to sue for the outbreak of Covid-19 and especially to recover 4 trillion for the 20 Lakh lawyers in the country. The letter focused on expanding the scope of section 86 of the Civil Procedure Code, 1908 by introducing an ordinance under Article 123 of the Constitution.

Purpose of section 86 of C.P.C.

In India, section 86 talks about the foreign state immunity with that of other countries. However, alien countries are not to be included as a foreign country. Unlike the United States and the United Kingdom, India does not have separate legislation for such sovereign immunity. The doctrine of Sovereign Immunity was adopted from the British Jurisprudence. The term “Sovereign” was first introduced during the Pre- Constitutional Era by Peacock C.J., in the case of P and O Navigation Co., v. Secretary of State for India. Section 86 of the act states that no foreign state can be sued without prior consent from the government. The consent should be applied in situations in which the foreign state-

• has instituted a suit in the Court against the person desiring to sue it, or
• by itself or another, trades within the local limits of the jurisdiction of the Court, or
• is in possession of immovable property situated within those limits and is to be sued with reference to such property or for the money charged thereon, or
• has expressly or impliedly waived the privilege accorded to it by this section.[1]

In addition to foreign states, this section also covers rulers, ambassadors, envoys, high commissioners of foreign states, and any such member of the staff of the foreign state, or the staff or retinue of the ambassador or envoy or the high commissioner of a foreign state, as the government may specify.[2] The approval of the government for consent varies from case to case depending on the material facts and circumstances.

The privilege of immunity under the sovereignty applies to foreign states and it does not include matters relating to commercial or contractual transactions undertaken by the foreign countries. The same view was held in Trendtex Trading Corp Ltd. v. Central Bank of Nigeria. They further tried to clarify that Section 86 CPC itself is a “reflection of modification and restriction of the principle of foreign sovereign immunity” and by enacting special statues, Parliament has further narrowed a State’s ability to plead sovereign immunity and hence in today’s world “the principle of sovereign immunity can no longer be absolute in the way it much earlier was”.[3]

Current Scenario

The Chairman of AIBA has written to the Prime Minister to expand the scope of Section 86 allowing it to sue China for the outbreak. The State of Missouri in the U.S. has filed a lawsuit against China for suppressing information and denying the contagious nature of COVID 19 virus which led to harm suffering and economic disruption globally. In India, the scope of Section 86 has been narrowed down and can sue a foreign state if any one of the four conditions mentioned in 86(2) is satisfied. Thus the Chairman seeks the Prime Minister to pass an ordinance to amend section 86 of C.P.C.

An ordinance can be passed by the President with the aid and advice of the Council of Ministers with the head as the Prime Minister. An Ordinance can be passed if both the houses of the Parliament are not in session and there occurs a situation of emergency to pass the same. An ordinance can be used to amend any law apart from the Constitution. The Civil Procedure Code was established in the early 20^th Century. Now with the advancement of several enactments, the application of the act should be widened to pave way for modern problems requiring contemporary solutions.

Suing China for the outbreak of this pandemic requires the legal provision of law to be involved and this can be broadened under section 86. As per the Doctrine of State Immunity, State enjoys protection from being sued in courts of other states and they are exempted from being prosecuted. It is also to be noted that both the countries India and China have signed the U.S. Convention in the year 2007 but has not yet ratified for the same. Thus, in the absence of such ratification, India shall not exempt China from being prosecuted in India.

Conclusion

The AIBA intention to amend section 86 of the C.P.C. is an indispensable one. Amendment of the same shall allow Indian citizens to file a suit in the Indian Courts to recover from the losses caused due to Covid-19 since the said section cannot sue for the damages of commission for such an outbreak. In addition to provide solutions to the upcoming contemporary issues, time to time changes must be taken. Thus by immediately amending such outdated sections might be beneficial to the citizens of the country and also ensures a good justice system in concurrence with the rapid development.  

References:

[1] Section 86 of Civil Procedure Code, 1908.

[2] Supra at 1.

[3] (1997) 1 ALL E.R. 881.