In response to a class action suit filed by human rights group Sikhs For Justice, the district court of the eastern district of New York issued a summons to Congress president Sonia Gandhi for her alleged role in shielding those involved in the 1984 anti-Sikh riots from justice. Under the US Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA), foreigners may be sued in US courts for violations committed against the laws of nations even in foreign jurisdictions.
For most of its history, the ATS, passed in 1789, had an insignificant role, featuring only twice in judicial history until Filártiga v Peña-Irala in 1980. The case involved two Paraguayans who sued a former Paraguayan official for torture and murder of their family while in Paraguay. The court ruled that the case brought by an alien was a tort and violated the law of nations. Since the law of nations is a customary international law and has always been a part of US federal common law, US courts had jurisdiction over the case. It is important to note that this case was brought against an actual perpetrator of a brutality, unlike the case against Sonia Gandhi.
In Sosa v Alvarez-Machain in 2004, the US Supreme Court (SCOTUS) held that while ATS authorised federal courts to recognise private damages, common international law was to be interpreted in a very limited manner. Otherwise, it could raise several questions, including repercussions on US foreign relations.
Given this conservative position, it is unlikely that the shielding of alleged criminals 20 years after the fact will be taken seriously.
In April 2013, in Kiobel v Royal Dutch Petroleum, the nine-judge bench of SCOTUS unanimously ruled against the extraterritorial presumption of US law.
Four argued that ATS applied only when: 1. the defendant was American; 2. the event took place in US jurisdiction; or 3. the conduct substantially affected US interest, while the other five cited caution urged in Sosa in matters of foreign policy. Thus, relief for violations outside US jurisdiction cannot be granted. This verdict clearly indicates that the appellant’s claim against Sonia Gandhi is unlikely to impress the court.
In 1992, however, the US Congress passed the TVPA, which expressly held the understanding on Filártiga. Yet, the TVPA also has its restrictions - the law applies only to individuals acting in official capacity and provides relief against torture and extrajudicial killings only. The TVPA does not consider cases of obstruction of justice, as Sonia Gandhi’s accusers claim.
Furthermore, she has held an official position only since 1999, as an MP. The summons against Sonia Gandhi under these statutes is twice removed — she has been accused of shielding, not perpetrating the crimes.
Moreover, no court has found those persons Sonia Gandhi allegedly shields to be guilty. Prima facie, it appears unlikely that a serious case can be mounted against her barring the broadest interpretation of ATS.
Beyond its legal (de)merits, the idea that a state’s laws can apply beyond its jurisdiction violates the fundamental principle of national sovereignty. Presently, only the US has such a law, and if this principle were to be expanded to other states, one could imagine lawsuits against George W Bush, Ariel Sharon, and others. Consequently, the only bar to a state suing the leader of another state is their differential in power.
To India, any such suit is an affront to her national sovereignty. The notion that India will allow its leaders to be tried by foreign powers is destabilising and a matter of national shame. It is worth repeating that Sonia Gandhi’s alleged wrongdoing is nowhere near the magnitude of crimes the ATS or TVPA was intended for, and the suit should hold hardly any water.
In some ways, this event is a lesson to those who have in the past run to the US with India’s domestic problems, via their epistolary genius or their efforts to deny recognition — visas, magazine covers, speaker’s platforms — to other elected Indian officials. Yet as one nation, India must strenuously object to the treatment of its leaders thus from foreign countries.
Doctoral student in history at Vanderbilt University