A U.S. federal court this week ordered the State Department to respond to plaintiffs in an ongoing lawsuit filed against Prime Minister Narendra Modi for his alleged complicity in the 2002 anti-Muslim violence in Gujarat, therein requiring the Obama administration to further clarify its position on why it believed Mr. Modi could not be sued.
The order by Judge Analisa Torres of the Federal District Court for the Southern District of New York was issued on Wednesday after the plaintiffs, including human rights group the American Justice Centre, “Jane Doe’s 1-10,” and “John Doe’s 1-10,” filed, on November 14, 2014, a Memorandum of Law in Opposition to Motion.
The memorandum provided legal justification on why the Tort case against Mr. Modi “should move forward” despite the “suggestion of immunity,” submitted to the court on October 19 by U.S. Attorney Preet Bharara.
This week’s order by the District Court requires the State Department to respond to the memorandum by December 10, 2014.
On September 30 a letter from the State Department argued that “a prompt dismissal of the proceedings,” could have “significant policy implications,” an echo of the earlier view expressed by senior U.S. administration officials that Mr. Modi was immune from prosecution while he was in the U.S. because “as a general legal principle sitting heads of government enjoy immunity from suits in American courts”.
Speaking to The Hindu AJC legal advisor Gurpatwant Singh Pannun said that the challenge to the suggestion of immunity for Mr. Modi was based on the rule that foreign sovereign immunity extended only to acts committed by an individual during their tenure as head of a foreign government.
“This case relates to the acts committed by Modi when he was only Chief Minister and not Prime Minister,” Mr. Pannun said, adding that in the U.S. Supreme Court decision in Kiobel v. Royal Dutch, the court ruled that it was “an international duty and important American national interest to not provide safe harbour to human rights violators”.
A question that may be critical to the unravelling of the legal web around the immunity issue is the U.S. government’s view on whether immunity enjoyed at the present time by a foreign dignitary is retroactive, or applies to past acts as well, when that dignitary was not a head of government.
In other instances, including the case of Devyani Khobragade, India’s former Deputy Consul-General in New York who was arrested on visa fraud charges in December 2013, the State Department has argued that full diplomatic immunity from prosecution given to the defendant would generally apply from the day on which the person was officially granted such immunity after assuming the role in question, and not retroactively.