Code: Section 86 CPC
(1) No foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government:
Provided that a person may, as a tenant of immovable property, sue without such consent a foreign State from whom he holds or claims to hold the property.
(2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify the Court in which the foreign State may be sued, but it shall not be given unless it appears to the Central Government that the foreign State—
(a) has instituted a suit in the Court against the person desiring to sue it; or
(b) by itself or another, trades within the local limits of the jurisdiction of the Court; or
(c) is in possession of immovable property situated within those limits and is to be sued with reference to such property or for money charged thereon; or
(d) has expressly or impliedly waived the privilege accorded to it by this section.
(3) Except with the consent of the Central Government, certified in writing by a Secretary to that Government, no decree shall be executed against the property of any foreign State.
(4) The preceding provisions of this section shall apply in relation to—
(a) any ruler of a foreign State;
(aa) any Ambassador or Envoy of a foreign State;
(b) any High Commissioner of a Commonwealth country; and
(c) any such member of the staff of the foreign State or the staff or retinue of the Ambassador, Envoy, or High Commissioner as the Central Government may specify,
as they apply in relation to a foreign State.
(5) The following persons shall not be arrested under this Code:
(a) any ruler of a foreign State;
(b) any Ambassador or Envoy of a foreign State;
(c) any High Commissioner of a Commonwealth country;
(d) any such member of the staff of the foreign State or the staff or retinue of the ruler, Ambassador, Envoy, or High Commissioner as the Central Government may specify.
(6) Where a request is made to the Central Government for the grant of consent under sub-section (1), the Central Government shall, before refusing the request wholly or partly, provide the applicant with a reasonable opportunity of being heard.
Explanation of Section 86 CPC
What Is Section 86 CPC?
Section 86 of the Code of Civil Procedure, 1908 deals with legal proceedings against foreign States and certain diplomatic representatives. The provision recognizes the principle of sovereign immunity, which protects foreign governments from being sued in another country’s courts without permission.
As a general rule, a foreign State cannot be sued in India unless the Central Government grants prior consent. This requirement helps maintain diplomatic relations and prevents unnecessary interference with the sovereignty of foreign nations.
Therefore, Section 86 CPC acts as a safeguard that balances individual legal rights with international obligations.
Purpose of Section 86 CPC
The main objective of Section 86 CPC is to ensure that disputes involving foreign States are handled carefully and responsibly.
Foreign governments often engage in commercial activities, own property, or enter into agreements that may create legal disputes. However, unrestricted litigation against foreign States could affect diplomatic relations.
Consequently, the law requires government approval before such suits can proceed. This mechanism allows the Government to assess the legal and diplomatic implications of each case.
Requirement of Central Government Consent
A person wishing to sue a foreign State must first obtain written consent from the Central Government.
The consent must be certified by a Secretary to the Government. Without this approval, even a court that otherwise has jurisdiction cannot entertain the suit.
This requirement serves as a preliminary safeguard and ensures that legal proceedings involving foreign governments do not commence without proper scrutiny.
Circumstances in Which Consent May Be Granted
Section 86 CPC does not grant complete immunity to foreign States. Instead, it identifies situations in which the Central Government may permit a suit.
For instance, consent may be granted if the foreign State has already filed a suit against the proposed plaintiff. Likewise, permission may be given if the foreign State conducts business within the jurisdiction of the court.
Consent may also be appropriate when the dispute concerns immovable property owned by the foreign State or where the foreign State has waived its immunity either expressly or through its conduct.
Therefore, the provision recognizes that foreign States should not be shielded from every legal claim.
Exception for Tenants
The proviso to Section 86(1) creates an important exception.
A tenant occupying property owned by a foreign State may institute a suit without obtaining government consent. This exception applies because landlord-tenant disputes often require immediate legal remedies.
As a result, tenants are not deprived of access to justice merely because the property owner happens to be a foreign State.
Execution of Decrees Against Foreign States
Even after obtaining a decree against a foreign State, enforcement is not automatic.
Section 86(3) requires separate consent from the Central Government before any decree can be executed against the property of a foreign State.
This provision protects diplomatic interests and prevents abrupt enforcement actions that may affect international relations.
Protection of Foreign Rulers and Diplomats
The protections available to foreign States also extend to foreign rulers, ambassadors, envoys, High Commissioners, and certain members of their staff.
These individuals perform official diplomatic functions and represent foreign governments. Therefore, the law grants them special procedural safeguards.
This approach reflects internationally accepted principles of diplomatic and sovereign immunity.
Immunity from Arrest
Section 86 CPC specifically protects foreign rulers, ambassadors, envoys, High Commissioners, and certain notified staff members from arrest under the Code of Civil Procedure.
The purpose of this protection is to ensure that diplomatic representatives can perform their official duties without disruption.
Accordingly, courts cannot order their arrest in civil proceedings governed by the CPC.
Opportunity to Be Heard
The law also protects individuals seeking permission to sue a foreign State.
Before rejecting an application for consent, the Central Government must provide the applicant with a reasonable opportunity to present arguments and explain why the suit should be allowed.
This requirement promotes transparency, fairness, and procedural justice.
Illustration
Example 1: Business Contract Dispute
An Indian company enters into a supply agreement with a foreign government. The foreign government allegedly fails to honor the contract.
Before filing a suit, the company must obtain the consent of the Central Government under Section 86 CPC.
Example 2: Tenant’s Legal Action
A foreign State owns a commercial building in India and leases part of it to a business owner. A dispute arises regarding possession of the premises.
The tenant may directly file a suit without obtaining government consent because the law provides a specific exception for tenants.
Example 3: Property-Related Claim
A foreign State owns land within India. A dispute emerges concerning rights over that property.
Since the matter relates to immovable property situated within the court’s jurisdiction, the Central Government may consider granting consent for the suit.
Common Questions and Answers on Section 86 CPC
1. Can a foreign State be sued in an Indian court?
Answer:
Generally, no. A foreign State can be sued only with the prior consent of the Central Government, certified in writing by a Secretary to the Government.
2. Is there any exception to the requirement of government consent?
Answer:
Yes. A tenant may file a suit against a foreign State regarding immovable property held or claimed under a tenancy without obtaining prior consent from the Central Government.
3. Can a decree against a foreign State be executed immediately?
Answer:
No. Even after obtaining a decree, separate consent from the Central Government is required before executing the decree against the property of a foreign State.
4. Does Section 86 CPC apply only to foreign States?
Answer:
No. The provision also applies to foreign rulers, ambassadors, envoys, High Commissioners of Commonwealth countries, and certain members of their staff or retinue specified by the Central Government.
Conclusion
Section 86 CPC establishes a structured legal framework for suits against foreign States and diplomatic representatives in India. The provision protects sovereign immunity while allowing genuine claims to proceed when the Central Government considers it appropriate. It also safeguards diplomatic officials and foreign representatives from unnecessary legal interference. Consequently, Section 86 CPC plays a significant role in maintaining a balance between access to justice, international diplomacy, and respect for foreign sovereignty.
