International Law recognized both direct International
wrong and indirect International wrong. The present
being not a case of direct International wrong
committed by a foreign State, claim has been stated to
be covered under the heading "indirect International
wrong". Indirect International wrong can include a
situation where National of A State caused injuries to
the National of State B. States responsibility can be
fastened only when there are circumstances of the
State being involved in causing injury to a foreign
National. The State liability has not to be readily
inferred unless there are materials to show.
45. There is one more aspect of the matter.
Any claim for compensation can always be laid according
to the municipal law of the Country where cause of
action arose. Greigh while considering indirect
International wrong in "Chapter X" has referred to a
principle, viz., exhaustion of legal remedies. It is
useful to extract the principle as stated in the
following words:
""It is a well-established principle of international law that a
state cannot succeed in a claim on behalf of its national before an
international tribunal unless all the remedies available under the
local law have been tried and found wanting. However, while this
general proposition of the rule, and from the reasons behind it, are
capable of being resolved by reference to such a proposition."
In the present case it is clear that although the
Emabassy of India, Riyadh, KSA had taken the claim of
the petitioner with the Ministry of Foreign Affairs,
KSA, no relief could be obtained diplomatically. It is
true that in all cases it is not necessary that a claim
under local laws be raised. But the aforesaid
principle is also a principle while considering a
State to raise a claim before the International Court of
Justice. There is one more aspect of the matter which
needs consideration. As per the Statute of
International Court of Justice it is the State which can
be a party to the dispute raised before the
International Court of Justice. Article 34(1) as
noted above provides "only States may be parties in the
case before the Court." The decision as to whether a
particular claim is to be raised in the International
Court of Justice is primarily in the discretion of the
State. Strake in his International Law while
discussing State's responsibility under Chapter X noted
that State practice shows that most States regard
sponsoring of the claim is entirely within their
discretion. The following is stated by Strake in this
context:
"Sometimes it is expressed that this right corresponds to an
administrative duty of the state towards such of its nationals as
have suffered injury. But state practice (for example, of the
Department of State of the United Stats) shows that most states
regard the sponsoring of claims by nationals as entirely within their
discretion.."
46. The petitioner in the writ petition has prayed
for a mandamus directing the Union of India to raise a
claim in the International Court of Justice for death
compensation on account of the death of petitioner's
husband on 18.05.1985. In the present case the
petitioner in the Writ Petition had claimed Rs.10
lakhs from the respondents and under the orders of the
learned Single Judge, petitioner has received
compensation of Rs.6,00,000/- as noted above.
47. In view of the foregoing discussion, we are of
the opinion that present is not a case where
petitioner has made out a case for issuing a writ of
mandamus to the Government of India to raise the claim
before the International Court of Justice.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
APPELLANT(S)/APPELLANT/PETITIONER IN WPC:
------------------------------
MARGRET D CRUZ A
Vs
UNION OF INDIA
ASHOK BHUSHAN, C.J.
and
A.M. SHAFFIQUE, J.
W.A. No.1271 of 2013
Dated this the 03rd day of February, 2016
Citation;AIR 2016 (NOC)303 Kerala
This writ appeal has been field against the judgment
dated 01.03.2013 in O.P. No. 13514 of 1997 by which
judgment the learned Single Judge disposed of the
Original Petition directing the 1st and 2nd respondents to
comply with the order passed by the Prime Minister's
Office dated 15.02.2013, sanctioning the financial
assistance of Rs.5 lakhs to the family of the petitioner
and further directing the State Government to disburse an
amount of Rs.1 lakh to the petitioner. The learned
Single Judge referring to above payments as settlement
left open the legal issues involved in the case.
2. The petitioner aggrieved by the said judgment
has come up in this writ appeal. The parties shall be
referred to as described in the Original Petition. In
the Original petition, statement, counter affidavits and
other affidavits were filed by the respondents to which
reply was also filed by the petitioner.
3. The facts of the case as emerged from the
pleadings of the parties are as follows: The
petitioner's husband, Sri.Wilfred D'Cruz, was employed
as Telex Operator in Riyadh (Saudi Arabia) in a company
named "M/s.Jassir.S.AL-Obeid Corporation for Trading and
Contracting". On 18.05.1985 when the Wilfred D'Cruz
was walking towards the bus stop from his office, some
explosive substance kept in a garbage can by the side of
the road exploded, which killed him. The body of the
husband of the petitioner was sent by the authorities of
the Saudi Government after 2= months. The company,
under which the petitioner's husband was employed, sent
a communication dated 28.07.1985 addressed to the Indian
Embassy Riyadh sending a cheque of Saudi Riyal 6668/- as
salary of May, 1985, transportation allowances, Housing
Allowances, overtime work and Ramadan Bonus. The
petitioner sent a letter dated 13.05.1986 (Ext.P4) to
the Ambassador, Embassy of India, Riyadh, Kingdom of
Saudi Arabia requesting that effective steps be taken
against the employer as well as against the Government
so that petitioner and her minor children are justly
compensated. The Embassy of India sent a communication
dated 24.06.1986 to the Ministry of Foreign Affairs,
Kingdom of Saudi Arabia (Ext.P5) requesting the Ministry
to impress upon the authorities concerned for an early
settlement of the case and transfer the death
compensation (blood-money) to the Indian Embassy at the
earliest for the onward disbursement to the legal heirs.
A copy of the letter was also enclosed to the petitioner
informing that death compensation matter is being
pursued and a request was also made to execute Power of
Attorney in favour of the Ambassador, Embassy of India,
Riyadh and to forward to the Embassy to take up the
matter with the concerned authorities. The petitioner
and other legal heirs executed Power of Attorney on
05.09.1986 in favour of the Ambassador of Indian
Embassy, Riyadh, Saudi Arabia.
4. Another letter dated 20.04.1987 was written by
the Embassy of India to the Ministry of Foreign Affairs,
Kingdom of Saudi Arabia, Riyadh requesting to impress
upon the authorities for early settlement of the case
and transfer of the Blood-Money and legal dues to the
Embassy at the earliest to the legal heirs of the
deceased Wilfred D'Cruz. The Embassy of India sent a
letter dated 04.11.1987 to the Ministry of External
Affairs, New Delhi (Ext.P8) whereby the Ministry of
External Affairs was informed that the Embassy of India
has been taking up the case to the Saudi Government at
regular intervals but response from the Saudi Government
regarding the death compensation is awaited. It was
further mentioned that no death compensation would
become payable unless a third party responsibility is
fixed for the bomb-blast.
5. A Member of Parliament, Prof. K.V.Thomas, sent
a letter in the year 1987 which was forwarded by
Ministry of External Affairs on 21.10.1987 regarding
payment of the death compensation due to the death of
Wilfred D'Cruz who died in Riyadh on 18.05.1985.
Another letter was sent by Prof. K.V.Thomas, Member of
Parliament on 12.01.1992 (Ext.P9). The Embassy of
India, Riyadh sent a letter dated 27.09.1993 to the
petitioner informing that no death compensation is
admissible as no one has been held responsible for the
death of petitioner's husband. It was further stated
that under Shariat Laws, death compensation is to be
paid by the person held responsible for the death. The
Petitioner sent a representation dated 04.11.1994 to the
Prime Minister's office referring to the correspondence
with the Embassy of India and by which the petitioner
requested that necessary action may be taken so that the
long outstanding blood-Money/death compensation is paid
to the family by the Saudi authorities without further
delay. Thereafter the petitioner filed the Original
Petition with the following prayers:
"i. Issue a writ of mandamus or other appropriate writ, order
or direction, directing the respondents to take necessary steps to
get the Blood Money/death compensation from the Saudi
Government immediately.
ii. Issue a writ of mandamus or other appropriate writ, order
or direction, directing the respondent to provide an amount of
Rs.1,00,000/- as death compensation, in the event of failure of the
Saudi Arabian Government to pay the compensation.
iii. Issue such other relief on this Hon'ble Court deems fit
and proper."
6. A statement was filed on behalf of the 1st and
2nd respondents dated 22.10.1997 wherein it was stated
that the Saudi Ministry of Foreign Affairs vide their
note dated 29.10.1988 had informed that the concerned
Saudi Authorities had not held anyone responsible for
the death of the petitioner's husband and under the
'Shariat Law', death compensation is not admissible.
7. Counter affidavit dated 17.06.1998 on behalf
of 1st and 2nd respondents was filed wherein a copy of the
letter dated 27.09.1993 by the Embassy of India
addressed to the petitioner has been brought on record
and it was mentioned that no death compensation is
admissible as no one has been held responsible for the
death of the petitioner's husband(Ext.R1(a)). Copy of
letters dated 24.06.1986, 10.01.1987 and 20.04.1987 sent
by the Embassy of India to the Ministry of Foreign
Affairs, Kingdom of Saudi Arabia, Riyadh requesting for
early settlement of the case and transfer of blood-Money
(death compensation Money) has been brought on record.
8. Another statement dated 09.12.1999 has been
filed by the Ministry of External Affairs wherein it was
again stated that no death compensation due to bomb-
blast could be given under the 'Shariat Law' because the
Saudi Authorities had not held anyone responsible for
the same. Petitioner filed an application for
impleadment seeking to implead the Secretary, Ministry
of Overseas Indian Affairs, Government of India, Central
Secretariat, New Delhi as additional respondent. The
petitioner was permitted to amend the writ petition, by
order dated 13.12.1999, by adding an additional prayer,
i.e. prayer No.(iv) which reads as under:
"(iv) issue a writ of mandamus, any other order, writ or
direction, directing the first respondent herein to raise the claim
petition against the Saudi Arabian Government for payment of blood
money/death compensation to the petitioner before the
International Court of Justice as the State's claim immediately."
9. A copy of the letter dated 09.11.1999, wherein
the Ministry of External Affairs has brought on record
the advice given by the Legal & Treaties Division of the
Ministry stating that:
"(i) Individual parties cannot take the matter before the
International Court of Justice (ICJ).
(ii) Chapter II of the Statute of International Court of Justice
categorically states that "only States may be parties in cases before
the Court". Therefore, the petitioner, has no legal right to plead that
the matter may be referred to ICJ.
(iii) ICJ would deal only with matters concerning
International Law. This being a case, where only Saudi Law is
applicable, it cannot be taken before the ICJ."
9. A counter affidavit on behalf of the
respondents dated 28.06.2010 was filed by the Joint
Secretary(Consular), Ministry of External Affairs, New
Delhi wherein the communication dated 09.11.1999 was
relied and it was reiterated that compensation if any
has to be granted by the Saudi Government as per their
local laws. There is no bilateral treaty with Saudi
Arabia as far as payment of such compensation is
concerned. It was mentioned that the Ministry of
Overseas Indian Affairs has taken several
measures/initiatives to help distressed Indian nationals
residing abroad. The details of the measures taken were
indicated in paragraph 6 of the counter affidavit.
10. The learned Single Judge, who heard the writ
petition, issued various directions to the respondent
directing the matter to be placed before the concerned
Minister under the Ministry of Overseas Affairs and pass
appropriate orders granting some reliefs to the
petitioner. The learned Single Judge passed an order on
18.12.2012 observing that the Minister in the special
power has to pass an appropriate order enabling the
petitioner to get the relief of Rs.5 lakhs as the
minimum relief and the Ministry can modulate the scheme
to that effect. The learned Single Judge also noticed
that the State Government, after assessing the financial
background of the litigant, had offered Rs.1 lakh to the
petitioner. An affidavit was filed stating that the
Ministry has taken up the issue with the Prime
Minister's office and the Hon'ble Prime Minister has
sanctioned a financial assistance of Rs.5 lakhs to the
family of deceased Wilfred D'Cruz from the Prime
Minister's discretionary fund as a relief measure.
After noticing the aforesaid development which took
place during the pendency of the writ petition, the
learned Single Judge decided to close the writ petition
with the following directions:
"9. In view of the above, I propose to close this case
directing the first and second respondents to comply with the order
of Prime Ministers Office dated 15.02.2013 sanctioning the
financial assistance of Rs.5,00,000/- to the family of the petitioners
within a period of one month on furnishing necessary address, bank
account details, etc. to the respondents or to the counsel appearing
for the respondents. As decided by the cabinet of the State
Government, the amount of Rs.1,00,000/- sanctioned by the State
Government, shall also be disbursed to the petitioner within a
period of one month from the date of this judgment. In view of the
settlement, the legal issues involved in this case are left open. The
petitioner upon receipt of the relief amount is directed to file a
memo for the compliance and proper acquittance of receipt of the
amounts before this honourable court and the registry may accept
the same."
11. The amount of Rs.5 lakhs and Rs.1 lakh as
directed by learned Single Judge were paid to the
petitioner which fact is not disputed in this appeal.
12. The appellant has filed this writ appeal
challenging only a part of the judgment by which learned
Single Judge declined to command the Government of India
to prefer a claim against the Saudi Arabian Government
in the International Court of Justice for and on behalf
of the appellant for the death compensation. The prayer
made in this appeal in this context is relevant to be
noticed which is as follows:
"For these and among other grounds that would be urged at
the time of hearing it is most respectfully prayed that, that part of
the judgment dated 01.03.2013 in O.P. No.13514 of 1997 of
learned Single Judge declining to command the Government of
India to prefer a claim against the Saudi Arabian Government in the
International Court of Justice for and on behalf of the appellant for
the death compensation of her husband may be set aside and allow
the writ appeal."
13. Thus, in view of the above, the scope of this
appeal is confined only to the relief claimed by the
petitioner in the writ petition seeking a mandamus
directing the Union of India to raise the claim against
the Saudi Arabian Government for payment of blood-
money/death compensation to the petitioner before the
International Court of Justice as the State's claim.
14. We have heard Sri.A.X. Varghese, learned
counsel appearing for the appellant and
Sri.S.Krishnamoorthy, learned Central Government Counsel
and Sri.C.R.Syam Kumar, learned Government Pleader.
15. Sri.A.X.Varghese, learned counsel for the
appellant in support of the writ appeal contends that
the Saudi Arabian Government did not do anything to
prevent the Bomb explosion and failed to conduct a fair
investigation and prosecution of the culprits who are
responsible for the bomb blast, hence the Central
Government ought to have preferred a claim in the
International Court of Justice against the Saudi Arabia
for getting compensation to the appellant, in the event
of failure of the Saudi Arabian Government to award
compensation of Rs.10 lakhs.
16. It is submitted that the learned Single Judge
ought to have found that the issues became a question of
international law when there was no proper investigation
and when the perpetrator of the bomb blast was not
identified and arrested and prosecuted by the Saudi
Arabian Government. The Saudi Arabian authorities
failed to conduct an adequate investigation to apprehend
the assailants due to which the matter comes to the
realm of international law. For and on behalf of the
Indian citizen, the India Government alone is empowered
to make a claim in the International Court of Justice.
Learned counsel for the appellant has also referred to
various cases decided by the International Court of
Justice and International Commission according
compensations to the alien victims on account of the
failure of the Government where the alien is working.
17. Sri.S.Krishnamoorthy, learned counsel
appearing for the respondent submits that under the
'Shariat Law' applicable in Saudi Arabia the death
compensation can be awarded only when the criminal
liability is fixed on any person and he is apprehended.
It is submitted that since no one could be apprehended
for the bomb blast, death compensation has not been
awarded to the petitioner which fact was communicated to
the petitioner by the Embassy of India, Riyadh. It is
submitted that there is no bilateral treaty between
India and Saudi Arabia to refer such claims before any
International organisation. It is submitted that under
the International Court of Justice only the State
parties can raise the claim. Individual claim for any
compensation regarding an incident cannot be raised in
the International Court of Justice. It is submitted
that on the direction of learned Single Judge,
substantial relief has already been granted to the
petitioner by payment of Rs.6 lakhs (Rs.5 lakhs+ Rs.1
lakh) as compensation, to which Government of India was
not liable to pay. Hence the petitioner is not entitled
for any further relief.
18. Learned Government Pleader referring to the
Statute of International Court of Justice contends that
under the said Statute, the claim as raised by the
petitioner in this case cannot be a subject matter
before the International Court of Justice. It is
submitted that the prayer of the petitioner to direct
the Government of India to refer the case to the
International Court of Justice is misconceived and
cannot be granted in this writ appeal.
19. The only issue to be considered in this Writ
Appeal is as to whether the Writ Petitioner had made
out a case for issuing a writ of mandamus directing
the Union of India to raise the claim of compensation
(blood money) against the Kingdom of Saudi Arabia (for
short, "KSA") consequent to the death of Wilfred D'cruz
which took place on 18.05.1985 in Riyadh, KSA in a
bomb blast, in the International Court of Justice. In
support of the above claim, learned counsel for the
petitioner, elaborating his submissions, contended that
there has been denial of justice on the part of the
Government of Saudi Arabia in paying the death
compensation (blood money) to the petitioner since it
failed to apprehend the culprits and for such cause,
the Union of India is obliged to take up the claim in
the International Court of Justice against the
Government of Saudi Arabia.
20. It is submitted that Wilfred D'cruz, an
Indian National suffered a wrong in the KSA which could
not be redressed by law enforcement agency. The
incident thus constituted a breach of International law.
It is an indirect international wrong which can be
remedied in the International Forum since before the
International Court of Justice, it is the State which
can raise the claim. The Union of India ought to have
raised the claim. The KSA which had failed in its duty
of repression and punishment of the guilty person is
indirectly responsible in the International Forum to
compensate the petitioner. Learned counsel for the
petitioner in support of his submission relied on
Strake's International Law (11th Edn.) and D.W.Greig's
International Law, 2nd Edn. Shri A.X.Varghese, learned
counsel for the petitioner has also referred to and
relied on certain cases decided by the International
Commissions, viz., Thomas H.Youmans v. United Mexican States
(1926), Harry Roberts v. United Mexican States (1926),
Laura M.B.Janes v. United Mexican States (1925), etc.
21. International Court of Justice was
established by the United Nations Charter and came
into existence in February, 1946. Chapter XIV
contains a heading "The International Court of Justice".
Article 92 of the Charter provided as follows:
"The International Court of Justice shall be the principal
judicial organ of the United Nations. It shall function in accordance
with the annexes Statue, which is based upon the Statue of the
Permanent Court of International Justice and forms an integral part
of the present Charter."
The International Court of Justice was created as the
successor to the permanent court of International
Justice, established pursuant to Article 14 of the
covenant of the league of Nations in 1921 and was
modeled closely on that body.
22. International Court of Justice, principal
judicial organ of the United Nations is a standing
Tribunal to which States may bring their disputes and
it is also empowered to give advisory opinion to the
United Nations organs and specialised agencies.
Jurisdiction of the International Court of justice is
derived from the parties to the case which may be
given either directly in respect of a specific dispute
or in advance in respect of a definite class or
category of disputes. The Statute of the court
also provides for acceptance of a general jurisdiction
by a simple declaration which may however, be subject
to reservation.
23. Before we deliberate over the issues raised,
it is necessary to recaptulate the facts and events
of the case to appreciate as to whether the facts of
the case makes out a case for issuing a writ of
mandamus to refer the case of the petitioner to the
International Court of Justice.
24. The incident in which Wilfred D'cruz killed
on 18.05.1985 has been pleaded by the petitioners
herself in paragraphs 1 and 2 of the Writ Petition
which is to the following effect:
"1. The petitioner is a widow living in the midst of
poverty and starvation with her two minor children in the above said
address. The petitioner's husband Mr.Wilfred D'cruz died in a bomb
blast in Riyadh, Saudi Arabia on 10.05.1985. The deceased
Mr.D'cruz was employed in a Company by name "M/s.Jassir S.AL-
Obeid Corporation for Trading and Contracting" in Saudi Arabia, as
Telex Operator and derived an amount of Rs.15,000/- as salary per
month.
2. The petitioner's husband Mr.Wilfred D'cruz was killed
in a bomb blast as averred which took place on one of the public
streets in Riyadh, Saudi Arabia. The incident occurred when some
explosive substances kept in a garbage can by the side of the road,
exploded as the petitioner's husband walking towards a bus stop
from his office, which killed him instantaneously. The photo copy of
the news item published in the Kerala Times, a Malayalam daily,
dated 25.05.1985 is produced herewith and marked as Exhibit
P1."
25. As noted above, the Embassy of India, Riyadh,
KSA has taken up the issue of settlement of the case
with the Ministry of External Affairs of KSA vide
letters dated 24.06.1986, 10.01.1987 and 20.04.1987. It
is to be noted that Prof.K.V.Thomas, a Member of
Parliament from Kochi, Kerala had also taken up the
case of the petitioner with the Ministry of external
affairs, New Delhi by letter dated 21.10.1987. The
Embassy of India, Riyadh, KSA sent letter dated
04.11.1987 to the Ministry of Exteranal Affairs, New
Delhi where it was stated that no death compensation
would become payable unless a third party responsibility
is fixed for the bomb blast. The letter further
stated that the Saudi Government has not succeeded in
determining the identity of the people responsible for
the bomb blast. After receipt of the aforesaid letter
dated 04.11.1987, both Prof. K.V.Thomas and the
petitioner had again represented the matter before
the Government of India. Petitioner also submitted an
application dated 10.09.1993 to the Prime Minster of
India complaining about non-receipt of the death
compensation (blood money) of her husband, Wilfred
D'cruz. The Embassy of India, Riyad, KSA sent
communication dated 27.09.1993 to the petitioner
wherein it has been stated that no death compensation
is admissible as no one could be held responsible for
the death of petitioner's husband. It was further
communicated that under the Saudi Law (Sheriyat Law)
death compensation is to be paid by the person held
responsible for the death and in the instant case no
one has been held responsible for the death. It is
useful to quote the letter dated 27th September, 1993,
which is to the following effect:
"EMBASSY OF INDIA
post box No.94387
Riyadh 11693 (SAUDI ARABIA)
Tel: 477 7006 (4 times)
Fax: 4778627
Telex: 406077 INDEMB SJ
27thSEPTEMBER, 1993
No.RIY/L/142/85
Shrimati Margret D'cruz
House No.16/1940
Thoppumpady,
Cochin -5,
Kerala.
Madam,
Please refer to your letter dated nil addressed to the Prime
Minister, a copy of which was endorsed to this Embassy, regarding
settlement of death of compensation in respect of late Shri Wifred
D'Cruz.
2. As advised you earlier, no death compensation is
admissible as no one has been held responsible for the death of
your husband. You may like to know that under Saudi Laws, death
compensation is to be paid by the person held responsible or the
death and in the instant case no one has been held responsible for
the death of your husband. The legal dues, amounting to SR.6668/-
and service benefits amounting to Rs.51,863.86 have already been
received by you.
Yours faithfully,
Sd/-
(M.S. Narayan)
Attache (Labour)"
26. As noted above, a statement was filed by
respondents 1 and 2 on 22.09.1997 wherein the
following was stated:
"As per the instruction received by Fax Message from the
Embassy of India, Riyadh, Saudi Arabia, by the Regional Passport
Officer, Cochin, it is hereby stated that the matter of death claim
of the petitioner's husband was vigorously pursued at regular
intervals by the Embassy with the concerned Saudi Authorities. But
the Saudi Ministry of Foreign Affairs vide their Note dated 29th
October, 1998, had informed that the concerned Saudi Authorities
had not held anyone responsible for the death of the petitioner's
husband. As such, under the "Shariat Law" death compensation is
not admissible."
27. A counter affidavit has also been filed on
behalf of respondents 1 and 2 dated 17.06.1998 wherein
in paragraph 4, the following has been stated:
"4. The petitioner was paid Saudi Riyals (6668) towards
salary for May 85 and Saudi Riyals 16,000/- towards service
benefits and the matter was vigorously pursued at regular intervals
by the Embassy with the concerned Saudi Authorities. Several
communications were sent to the Foreign Office of the Kingdom of
Saudi Arabia requesting them to pay the compensation amount
payable in this case. In spite of the best efforts of the respondents,
the Govt. of Saudi Arabia did not send a favourable reply. This is
because the Govt. of Saudi Arabia could not apprehend the person
who caused the explosion resulting in the death of the petitioner's
husband. Copies of the communications sent to the Foreign Office
of the Kingdom of Saudi Arabia are annexed as Exhibit r1(b), R1(c),
R1(d)."
By a statement dated 09.12.199 filed on behalf of the
Ministry of External affairs, the communication dated
09.11.1999 has been brought on record, where the
following was stated:
"(i) Individual parties cannot take the matter before the
International Court of Justice (ICJ)
(ii) Chapter II of the Statute of International Court of
Justice categorically states that "only States may be parties in
cases before the Court". Therefore, the petitioner, has no legal right
to plead that the matter may be referred to ICJ.
(iii) ICJ would deal only with matters concerning
International Law. This being a case, where only Saudi Law is
applicable, it cannot be taken before the ICJ."
28. Another counter affidavit on behalf of the
Ministry of External Affairs dated 28.06.2010 has been
filed wherein in paragraph 4, the following has been
pleaded:
"4. However, we have again consulted the Legal &
Treaties Division of the Ministry of External Affairs which confirmed
that the case cannot be referred to the ICJ since it is an individual
case that happened in Saudi Arabia in 1985. Compensation, if any,
has to be granted by the Saudi Government as per their local laws.
There is no bilateral treaty with Saudi Arabia as far as payment of
such compensation is concerned."
29. From the above it is clear that the Embassy
of India, Riyadh has pursued the matter of payment of
compensation (blood money) consequent to the death of
Wilfred D'cruz. However, no compensation could be
payable to the petitioner since the KSA could not
identify the person who caused the death, who according
to Saudi Law was liable to pay compensation.
30. Whether in the facts of the present case,
Government of India was obliged in law to submit the
claim on behalf of the petitioner as States claim
before the International Court of Justice?
31. The Statute of International Court of Justice
contains different Articles for organisation of the
court, competence of the court procedure and other
matters. Chapter II of the Statutes contains a heading
"Competence of the Court". Articles 34, 35, 36 and 37
which are relevant for the present case are as follows:
"34.
1. Only states may be parties in cases before the Court.
2. The Court, subject to and in conformity with its Rules, may
request of public international organizations information relevant to
cases before it, and shall receive such information presented by
such organizations on their own initiative.
3. Whenever the construction of the constituent instrument
of a public international organization or of an international
convention adopted thereunder is in question in a case before the
Court, the Registrar shall so notify the public international
organization concerned and shall communicate to it copies of all the
written proceedings.
35.
1. The Court shall be open to the states parties to the
present Statute.
2. The conditions under which the Court shall be open to
other states shall, subject to the special provisions contained in
treaties in force, be laid 25 down by the Security Council, but in no
case shall such conditions place the parties in a position of
inequality before the Court.
3. When a state which is not a Member of the United Nations
is a party to a case, the Court shall fix the amount which that party is
to contribute towards the expenses of the Court. This provision shall
not apply if such state is bearing a share of the expenses of the
Court.
36
1. The jurisdiction of the Court comprises all cases which the
parties refer to it and all matters specially provided for in the
Charter of the United Nations or in treaties and conventions in force.
2. The states parties to the present Statute may at any time
declare that they recognize as compulsory ipso facto and without
special agreement, in relation to any other state accepting the same
obligation, the jurisdiction of the Court in all legal disputes
concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would
constitute a breach of an international obligation ;
d. the nature or extent of the reparation to be made for the
breach of an international obligation.
3. The declarations referred to above may be made
unconditionally or on condition of reciprocity on the part of several
or certain states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-
General of the United Nations, who shall transmit copies thereof to
the parties to the Statute and to the Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the
Permanent Court of International Justice and which are still in force
shall be deemed, as between the parties to the present Statute, to
be acceptances of the compulsory jurisdiction of the International
Court of Justice for the period which they still have to run and in
accordance with their terms.
6. In the event of a dispute as to whether the Court has jurisdiction,
the matter shall be settled by the decision of the Court.
37
Whenever a treaty or convention in force provides for
reference of a matter to a tribunal to have been instituted by the
League of Nations, or to the Permanent Court of International
Justice, the matter shall, as between the parties to the present
Statute, be referred to the International Court of Justice."
32. Both India and Saudi Arabia are members of the
United Nations and thus necessarily become party to the
Statute of International Court of Justice. Thus there
is no lack of competence in raising international claim
before the International Court of Justice against the
party States by India.
33. In this context it shall not be out of place
to mention that recently International Criminal
Court has also come into existence by Statute with
effect from 04.07.2002. The International Criminal
Law is relatively new discipline and does not pretend
to be a complete system of criminal law. It is not
intended to be for replacement of totality of domestic
law. The International Criminal Court has
jurisdiction over the "most serious crimes of
International concerns, crimes against community, War
Crimes, Aggression, etc." However, in view of the fact
that the present case where we are only called upon to
consider as to whether the present matter could have
been taken by International Court of justice no further
consideration is necessary in the above regard. As
noted above, we have to confine ourselves to the
question as to whether Government of India is obliged
to lodge the claim before the International Court of
Justice against the KSA for death compensation.
34. We shall now refer to the views of celebrity
author of International Law, D.W. Greig., 2nd Edition,
who has elaborately dealt with the subject. In Chapter
X, "International Claims-I State Responsibility" makes
the statement of law in the following words:
"International law is only concerned with the wrongful acts
of one international person against another on the international
plane. It is not concerned with the injury suffered by individuals
except in so far as such injury entitles a state or international
organisation to present a claim on their behalf against the entity
responsible. Although international responsibility concerns the
rights of international organizations as well as the rights of states,
for the moment the discussion will deal with the rights and
obligations of states: the way in which the rules of state responsible
have been adapted to claims by and against international
organisations will be considered in a later chapter Obvious
examples of wrongful acts by one state against another would be
the invasion of its territory, the sinking or seizing of a ship flying its
flag in time of peace, the shooting down of one of its aircraft, the
arrest of its ambassador, or the breach of a treaty obligation owed
to that other state. All such cases involve a direct international
wrong against the other state for which the first state is responsible.
On the other hand, there are a large number of situations
in which the injury suffered by the claimant state is indirect, or in
which the responsibility of the respondent state will only arise
indirectly, or in which both the injury and the responsibility are
indirect."
Grieg thus categorized International wrongs as
direct International wrong and indirect International
wrong. Present is not a case of direct International
wrong since there is no allegation that the KSA is
responsible for the death caused to Wilfred D'cruz.
While explaining indirect International wrong,
followoing is stated:
"It was suggested that International wrongs that have for the
purposes of the present discussion been termed "indirect" may be
classified into three separate categories, depending upon the
circumstances that give rise to them. These indirect wrongs arise
(a) where nationals of state A cause injury to nationals of state B,
who are later unable to obtain justice from the courts or authorities
of state A; (b) where the officials or organs of state A directly injure
by their acts or omissions a national of state B; or (c) when acts of
individuals in the state A cause damage to the property of state B in
circumstances where state A should have prevented the damage.
Although these separate situations are similar in that they often
raise some of the legal issues, they are not identical. Situation ) in
particular will be dealt with separately at the end, but the
discussion of (a) and (b) will of necessity require comparisons to be
drawn, because between them the similarities are greatest..."
The author further elaborating the basis of
responsibility for indirect wrong refers to the ground
under the heading "denial of justice". It is stated as
follows:
"It is obvious enough that every injury suffered by an alien in
foreign territory is not an international wrong. The American in
Paris who is beaten up by local hooligans is not for that reason
alone entitled to have a diplomatic claim presented on his behalf
against the French Government by the State Department. The injury
is a wrongful act according to French law: international law is in no
way concerned with the incident.
The matter can only come on to the international plane if the
French authorities can be in some way inculpated in what occurred.
This may be the case if the French authorities had connived at or
failed to take adequate measures to prevent such incidents against
foreigners (a possibility which is dealt with later); or if, following the
incident, the French authorities fail to make an adequate attempt to
apprehend those responsible, or if the French courts fail to do
justice that we are concerned. It is this denial of justice which will
bring the matter on to the international plane."
Another principle which has been referred to by Greigh
is exhaustion of local remedies. The author states
that a State cannot succeed in a claim on behalf of its
national before an International Tribunal unless all
the remedies available under the local law have been
tried and found wanting. The following principle is
stated by Greigh:
"It is a well-established principle of international law that a
state cannot succeed in a claim on behalf of its national before an
international tribunal unless all the remedies available under the
local law have been tried and found wanting. However, while this
general proposition of the rule, and from the reasons behind it, are
capable of being resolved by reference to such a proposition."
35. Strakes International Law (11th Edn.) also
throws considerable light on the nature of States
responsibility. In Chapter X dealing with States
responsibility writes that most of the cases which come
under the above heading concern injuries suffered by
citizens abroad. He further opines that where the
illegal acts are committed by private citizens and not
by an organ or official of the State the grounds for not
imputing liability to the State are much stronger.
The following principle is stated:
"Where the illegal acts are committed by private citizens
and not by an organ or official of the state the grounds for not
imputing liability to the state are much stronger, for the doctrine of
imputability rests on the assumption that the delinquency has
been committed by an agency at least of the state concerned, or by
persons actually acting on behalf of the state. But here again, by
their omissions, or default, the agencies of the state may have
broken some independent duty of international law, and liability
may then be imputed to the states for example, if it if fails in its
duty of repression and punishment of the guilty persons or if it has
actually inspired the illegal act or acts committed, or if it has
become an accessory after the fact by wilfully benefiting from the
wrongful act or acts of the private citizen or citizens concerned, or
if, by conduct or declaration (oral or written) it has authorised or
ratified the unlawful act or acts. It is sometimes said that before a
state is liable in this connection, there must be some implied
complicity in the wrongful act either by negligent failure to prevent
the injury, or to investigate the case, or to punish the guilty
offender. In this connection the inordinate upsurg during recent
years of terrorist acts committed by the individuals or groups has
raised problems concerning the extent to which the states, in the
territory of which these acts have been perpetrated, may be liable
in respect of the injuries or losses caused by these acts. Inter alia,
it has been suggested that the local state may incur liability by
reason of the negligent creation of opportunities for the
commission of terrorist acts, or by the failure to punish terrorists
adequately for their crimes or at all, or because of the failure to
permit their extradition to a state competent to try and punish
them."
36. Now we come to some cases relied on by the
learned counsel for the petitioner where the claims on
the basis of States liability were considered by the
International Arbitral Tribunal, International
Commissions. The first case relied is the Harry
Roberts's case (Reports of International Arbitral
Awards, vol.4 page 77) decided on November 2, 1926: In
the above case, the Commission held Mexico responsible
for cruel and inhumane treatment to prisoners. It was
alleged that Roberts was kept along with as many as
thirty or forty other men in "a room thrity-five feet
long and twenty feet wide with stone walls, earthen
floor, straw roof, a single window, a single door and
no sanitary accommodations": that the prisoners had no
washing facilities; that they were given no opportunity
to take exercise; and that the food given to them were
"scarce, unclean, and of the coarsest kind." The
Mexican Government did not deny these allegations but
argued that Roberts had been accorded the same treatment
as that given to everyone else. In upholding the
American claim on this point the Commission commented
that facts "with respect to equality of treatment of
aliens and nationals may be important in determining the
merits of a complaint of mistreatment of an alien. But
such equality is not the ultimate test of the propriety
of the acts of authorities in the light of
international law. That test is, broadly speaking,
whether aliens are treated in accordance with ordinary
standards of civilisation. The above case was a case
which was primary example of wrong by State authorities
against a foreign national. The above case has no
application to the facts of the present case since the
present claim is not founded on any excesses committed
by the KSA authorities.
37. Another case relied on by he learned counsel
for the petitioner is the Youmen's claim where
following are the facts of the decision: A group of
three United States nationals was being attacked by a
Mexican mob. Troops sent to protect them joined in the
attack, which resulted in the death of the Americans.
The Mexican Government contended that, as the soldiers
had acted in complete disregard of their instructions,
Mexico could not be held responsible for the deaths.
The Commission, while recognizing that a State might
not be responsible in certain cases for malicious acts
by officials in their private capacity, held that State
would almost invariably be responsible for wrongful acts
committed by an officer. In this case the soldiers,
as in the Caire claim, had been under the immediate
supervision and in the presence of the officer in charge
of them.
38. Although the Youmen's decision did relate to a
situation which, on the facts, it is possible to
classify as a misuse of governmental authority, the
Commission primarily dealt with the issue of whether or
not the activities had been within, or outside, the
scope of authority of the soldiers concerned. As the
Commission pointed out, soldiers (or other officials)
"inflicting personal injuries or committing wanton
destruction or looting always act in disobedience of
some rules laid down by superior authority. There could
be no liability whatever for such misdeeds if the view
were must always be considered as personal acts".
Providing the test applied by international law for
determining the scope of the officials' apparent
authority is a wide one and the misuse by officials of
the powers entrusted to them by the State will always
fall within the scope of their apparent authority as
determined by international law. An official can hardly
use his power and position as an official if he is not
acting as an official, even though he may be employing
his powers entirely for his own ends. Youmen's case is
clearly not attracted nor help the petitioner in the
facts of the present case. In the above case troops
were sent to protect the three U.S. nationals but they
joined in attack which resulted in the death of
Americans. The Commission in the facts of the above
case held that misuse by Officers of the powers
entrusted to them by the State will always fall within
the scope of the apparent authority determined by the
International Law. The above case thus does not help the
petitioner.
39. In Mexico v. U.S. (1926) (the case of
Quintanilla) folowing are the facts and deicion: The
United States was held responsible for the death of a
Mexican national whose body was discovered by a roadside
soon after he had been taken into custody by deputy
sheriff and three other men. As Quintanilla had been
taken into custody by a State official, the State had to
account for what happened to him. Whether the deputy
sheriff or someone else had deliberately killed him,
the State could not absolve itself from responsibility
by ignoring what happened. In the above case claim was
allowed on the ground that U.S. National was taken into
custody by State official whose body was subsequently
discovered by a roadside. State liability was upheld.
The said case is clearly distinguishable and does
not help the petitioner in the facts of the present
case.
40. In U.S. v. Mexico (1926) (Neer' case)
following are the facts and decision: A claim was
presented on behalf of the widow and daughter of an
American citizen who had been shot down by a group of
armed men while working in Mexico. The Commission
accepted that the local authorities could and should
have acted in a more vigorous and effective way,
particularly on the day following the incident. Indeed
the agent of the State Attorney General and the State
Governor, who proposed that the local judge should be
removed from office, were obviously of the same
opinion. However, in the view of the Commission,
Mexico could not be active and more efficient course
of procedure might have been pursued on the one hand,
and holding that this record presents such a lack of
diligence and of intelligent investigation as continues
an international delinquency, on the other hand."
Without attempting to lay down a precise formula, it
was possible to hold that the treatment of an alien, in
order to constitute such a delinquency, "should amount
to an outrage, to bad faith, to wilful neglect of duty,
or to an insufficiency of governmental action as far
short of international standards that every reasonable
and impartial man would readily recognise its
insufficiency. Whether the insufficiency proceeds from
deficient execution of an intelligent law or from the
fact that the laws of the country do not empower the
authorities to measure up to international standards is
immaterial.
41. Another case which is relevant to be
considered is Janes claim (U.S v. Mexico (1926). Jane,
an American National was working in Mexico who was
killed by a man, viz., Fedro Crbajal, a former employee
of Jane's company. The murder took place in view of
several witnesses. In the said case following are the
facts and decision: The local police Comisario,
although informed of Janes' death within five minutes of
the crime, delayed for half an hour in assembling a
posse, and then insisted upon a further delay while
horses were provided for his men by the mining company.
The posse failed to apprehend Carbajal, although the
latter had been on foot and remained for a week after
the shooting within six miles of the nearby town.
Later, when Carbajal moved to a place some seventy-five
miles away, his whereabouts was communicated to the
authorities in that area, but they also made no move to
apprehend him. Later a reward was offered by the
mining company, and a detachment of troops was sent to
the town where Carbajal was reported to have been, but
by then Carbajal had moved on. He was never arrested.
The Commission were unanimous in holding that "there
was clearly such a failure on the part of the Mexican
authorities to take prompt and efficient action to
apprehend the slayer as to warrant an award of
indemnity.
42. In the above case it is relevant to refer to
the opinion of the Commission as stated in paragraphs
17, 19 and 26, which is to the following effect:
"17. Carbajal, the person who killed Janes, was well
known in the community where the killing took place. Numerous
persons witnessed the deed. The slayer, after killing his victim, left
on foot. There is evidence that a Mexican police magistrate was
informed of the shooting within five minutes after it took place. The
official records with regard to the action taken to apprehend and
punish the slayer speak for themselves. Eight years have elapsed
since the murder, and it does not appear from the records that
Carbajal has been apprehended at this time. Our conclusions to the
effect that the Mexican authorities did not take proper steps to
apprehend and punish the slayer of Janes is based on the record
before us consisting of evidence produced by both Governments.
19. ..At times international awards have held that, if a
State shows serious lack of diligence in apprehending and/or
punishing culprits, its liability is a derivative liability, assuming the
character of some kind of complicity with the perpetrator himself
and rendering the State responsible for the very consequences of
the individual's misademeanor...The reasons upon which such
finding of complicity is usually based in cases in which a
Government would not possibly have prevented the crime, is that
the non-punishment must be deemed to disclose some kind of
approval of what has occurred, especially so if the Government
has permitted the guilty parties to escape or has remitted the
punishment by granting either pardon or amnesty.
26. Giving careful consideration to all elements involved,
the Commission holds that an amount $12,000, without interest, is
not excessive as satisfaction for the personal damage caused the
claimants by the non-apprehension and non-punishment of the
murderer of Janes."
43. In Janes case there was sufficient ground to
hold the Mexico authorities were liable for their
inaction in apprehending and punishing the wrong doer.
The damages were allowed due to Government's negligence.
Present is not a case where any such lapse can be
imputed on the KSA. Here the death occurred due to an
explosion of an explosive which was kept in a can on
the road side garbage and the petitioner's husband who
was passing by the roadside street was the victim to
the explosion. The claim in Janes case was on its own
facts and does not help the petitioner to establish her
claim. Furthermore, above three cases were decided by
International Commission/Arbitrators as consented by
bnoth the countries involved for decision.
44. From the above discussion, it is clear that
International Law recognized both direct International
wrong and indirect International wrong. The present
being not a case of direct International wrong
committed by a foreign State, claim has been stated to
be covered under the heading "indirect International
wrong". Indirect International wrong can include a
situation where National of A State caused injuries to
the National of State B. States responsibility can be
fastened only when there are circumstances of the
State being involved in causing injury to a foreign
National. The State liability has not to be readily
inferred unless there are materials to show.
45. There is one more aspect of the matter.
Any claim for compensation can always be laid according
to the municipal law of the Country where cause of
action arose. Greigh while considering indirect
International wrong in "Chapter X" has referred to a
principle, viz., exhaustion of legal remedies. It is
useful to extract the principle as stated in the
following words:
""It is a well-established principle of international law that a
state cannot succeed in a claim on behalf of its national before an
international tribunal unless all the remedies available under the
local law have been tried and found wanting. However, while this
general proposition of the rule, and from the reasons behind it, are
capable of being resolved by reference to such a proposition."
In the present case it is clear that although the
Emabassy of India, Riyadh, KSA had taken the claim of
the petitioner with the Ministry of Foreign Affairs,
KSA, no relief could be obtained diplomatically. It is
true that in all cases it is not necessary that a claim
under local laws be raised. But the aforesaid
principle is also a principle while considering a
State to raise a claim before the International Court of
Justice. There is one more aspect of the matter which
needs consideration. As per the Statute of
International Court of Justice it is the State which can
be a party to the dispute raised before the
International Court of Justice. Article 34(1) as
noted above provides "only States may be parties in the
case before the Court." The decision as to whether a
particular claim is to be raised in the International
Court of Justice is primarily in the discretion of the
State. Strake in his International Law while
discussing State's responsibility under Chapter X noted
that State practice shows that most States regard
sponsoring of the claim is entirely within their
discretion. The following is stated by Strake in this
context:
"Sometimes it is expressed that this right corresponds to an
administrative duty of the state towards such of its nationals as
have suffered injury. But state practice (for example, of the
Department of State of the United Stats) shows that most states
regard the sponsoring of claims by nationals as entirely within their
discretion.."
46. The petitioner in the writ petition has prayed
for a mandamus directing the Union of India to raise a
claim in the International Court of Justice for death
compensation on account of the death of petitioner's
husband on 18.05.1985. In the present case the
petitioner in the Writ Petition had claimed Rs.10
lakhs from the respondents and under the orders of the
learned Single Judge, petitioner has received
compensation of Rs.6,00,000/- as noted above.
47. In view of the foregoing discussion, we are of
the opinion that present is not a case where
petitioner has made out a case for issuing a writ of
mandamus to the Government of India to raise the claim
before the International Court of Justice.
In the result, the Writ Appeal is dismissed.
ASHOK BHUSHAN,
CHIEF JUSTICE.
A.M. SHAFFIQUE,
JUDGE.
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