The All India Bar Association (AIBA) has demanded the Indian Govt to promulgate an extraordinary ordinance. In a press release issued the Bar Association has urged the NDA government led by Prime Minister Narendra Modi to promulgate an ordinance to the Civil Procedure Code to pave way for filing suits to claim exemplary 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 Adish C. Aggarwala has requested the Prime Minister to immediately amend the outdated Section 86 in the CPC, 1908 enabling citizens of India to sue the Government of China in the Indian courts to recover the losses due to Covid-19 and especially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.
Dr. Aggarwala said the time is ripe to amend the law to keep pace with rapid developments that have taken place across the world. 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 Govt. 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 Govt. of China, as part of its design.
The AIBA Chairman told the Prime Minister 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 etc. 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.
Aggarwala has noted in this letter 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.
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”).
The press release reads, "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."
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.” says the statement issued by the association.