Section 86 of the Code of Civil Procedure, 1908, delineates the legal framework governing the institution of suits against foreign states, rulers, ambassadors, and envoys within Indian jurisdiction. This provision ensures the respect of international diplomatic immunities while allowing for legal recourse under specified conditions.

LEGAL PROVISIONS AND REQUIREMENTS

1. Consent of the Central Government:
   A foreign state cannot be sued in any Indian court without the prior consent of the Central Government, certified in writing by a Secretary to the Government. This consent acts as a safeguard, balancing diplomatic relations with the need for legal accountability.

2. Exceptions to Consent Requirement:
   An exception exists wherein a person, as a tenant of immovable property, may sue a foreign state without such consent if they hold or claim to hold the property from that foreign state. This provision ensures tenants’ rights are protected even when the landlord is a foreign entity.

3. Conditions for Granting Consent:
   The Central Government may grant consent if the foreign state:

   • Has instituted a suit in the court against the person desiring to sue it.
   • Trades within the local limits of the jurisdiction of the court.
   • Is in possession of immovable property situated within those limits and is to be sued concerning such property or for money charged thereon.
   • Has expressly or impliedly waived the privilege accorded by this section.

   These conditions ensure that foreign states engaging in commercial activities or holding property within India can be held accountable under Indian law.

4. Execution of Decrees:
   No decree shall be executed against the property of any foreign state without the consent of the Central Government, maintaining the principle of sovereign immunity.

5. Extension to Rulers, Ambassadors, and Envoys:
   The provisions applicable to foreign states extend to:

   • Any ruler of a foreign state.
   • Any ambassador or envoy of a foreign state.
   • Any High Commissioner of a Commonwealth country.
   • Any member of the staff or retinue of the above officials as specified by the Central Government.

   This extension ensures that diplomatic agents are accorded similar immunities as foreign states, in line with international diplomatic norms.

CASE LAWS ILLUSTRATING SECTION 86

1. Mirza Ali Akbar Kashani v. United Arab Republic (1966) 1 SCR 391:
   In this case, the Supreme Court of India held that the consent of the Central Government under Section 86 is mandatory for instituting a suit against a foreign state. The plaintiff’s failure to obtain such consent rendered the suit non-maintainable. This judgment underscores the importance of adhering to procedural requirements when litigating against foreign entities.

2. Harbhajan Singh Dhalla v. Union of India AIR 1987 Delhi 192:
   The Delhi High Court emphasized that the Central Government’s consent under Section 86(1) is a prerequisite for suing a foreign state. The court clarified that this consent is not a mere formality but a substantive requirement, reflecting India’s commitment to respecting international diplomatic immunities.

INTERNATIONAL INSTRUMENTS AND DIPLOMATIC IMMUNITY

India’s provisions under Section 86 align with international conventions, notably the Vienna Convention on Diplomatic Relations, 1961, which codifies diplomatic immunities and privileges. By requiring government consent before proceeding against foreign states and their representatives, India upholds its international obligations, fostering diplomatic respect and reciprocity.

CONCLUSION

Section 86 of the CPC embodies the delicate balance between upholding the sovereignty and immunities of foreign states and their representatives and providing a legal pathway for redress under specific circumstances. For Indian law students, understanding this provision is crucial, as it encapsulates the intersection of domestic legal procedures with international diplomatic principles. The requirement of Central Government consent serves as a procedural safeguard, ensuring that India’s diplomatic relations are not inadvertently compromised through unilateral legal actions.

REFERENCES

• Code of Civil Procedure, 1908
• Vienna Convention on Diplomatic Relations, 1961
• Relevant Case Laws as Mentioned Above