Sunday, 8 May 2016

When court should not issue writ of mandamus to govt of India to raise claim before international court of justice on behalf of its national?

 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 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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