Supreme Court of India
C. SIVASANKARAN versus UNION OF INDIA & ORS. on 7 December 2021
C. SIVASANKARAN
v.
UNION OF INDIA & ORS.
(Writ Petition (Crl.) No. 302 of 2019)
DECEMBER 07, 2021
[A.M. KHANWILKAR, DINESH MAHESHWARI ANDC.T. RAVIKUMAR, JJ.]
Diplomats/Ambassadors – Diplomatic immunity – Ambassador-at-large – Relief(s) claimed in writ petition before High Court onthe assertion that the petitioner being an Ambassador-at-large ofSeychelles, enjoys diplomatic immunity and, therefore, cannot beproceeded with before the Courts in India much less by way ofcriminal action – Argument rejected by High Court – Propriety –Held: Proper – For, the petitioner does not come within the sweepof definition of “diplomatic agent” or for that matter any othercategory of officials referred to in Article 1 of the Vienna Conventionon Diplomatic Relations Done at Vienna on 18.4.1961 – The realstatus of the petitioner was only an Ambassador-at-large – It must,therefore, follow that the petitioner cannot be heard to invoke theargument of diplomatic immunity and if that contention fails, furtherreliefs claimed in the writ petition regarding quashing of concernedcriminal cases cannot be taken forward – Vienna Convention –Diplomatic Relations (Vienna Convention) Act, 1972 – Constitutionof India, 1950 – Art. 32 and 226.
CRIMINAL ORIGINAL JURISDICTION : Writ Petition(Criminal) No.302 of 2019
(Under Article 32 Of The Constitution of India)
Maninder Singh, Sr. Adv., Varun Shankar, Arnav Narain, R. S.Lakshman, Atharv Koppal, Rakshit Ranjan, Advs. for the Petitioner.
Tushar Mehta, SG, Mayank Pandey, Kanu Agrawal, ZohebHussain, Arvind Kumar Sharma, Mukesh Kumar Maroria, Avadh BihariKaushik, Advs. for the Respondents.
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AThe following Order of the Court was passed:
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ORDER
Heard learned counsel for the parties.
The relief(s) claimed in this writ petition under Article 32 of theBConstitution of India is founded on the assertion that the petitioner beingan Ambassador-at-large of Seychelles, enjoys diplomatic immunity and,therefore, cannot be proceeded with before the Courts in India muchless by way of criminal action. This very argument was canvassed bythe petitioner in the writ petition filed before the High Court of Judicatureat Madras, which after considering all the relevant aspects, came to beCrejected vide judgment and order dated 06.11.2019.
Having perused the said judgment, we are in agreement with theview expressed therein. For, the petitioner does not come within thesweep of definition of “diplomatic agent” or for that matter any othercategory of officials referred to in Article 1 of the Vienna Convention onDDiplomatic Relations Done at Vienna on 18.4.1961. This is precisely theopinion expressed by the Madras High Court, which, we hereby affirm.That is a question of fact as well as of law.
The affidavits filed by the respondents including the Central Bureauof Investigation (CBI), for resisting the present writ petition have amongstEother, brought on record communications dated 16.08.2019 and19.08.2019 issued by the Ministry of External Affairs, Government ofIndia, which, in turn, refer to the communication received by it fromSeychelles Government clarifying that the petitioner is Ambassador-at-large of that country and has been issued a diplomatic passport, but hisFpresence in India was not on any official duty on behalf of thatGovernment. There is no reason to doubt the correctness of the positionso stated in the communications and reiterated on affidavit filed beforethis Court dated 2.7.2020. Further, the affidavit also points out that thepetitioner is not covered by Article 31 of the Convention, but falls in theexception contained therein, as his activities being investigated, do notGpertain to any official functions but in respect of his commercial activitiesas such.
As a matter of fact, the judgment of the Madras High Court staresat the face of the petitioner, which has remained unchallenged; and asaforesaid, we are in agreement with the view expressed thereinHparticularly regarding the real status of the petitioner herein being only
an Ambassador-at-large. It must, therefore, follow that the petitionercannot be heard to invoke the argument of diplomatic immunity and ifthat contention fails, further reliefs claimed in the writ petition regardingquashing of concerned criminal cases cannot be taken forward.
Notably, the first relief claimed by the petitioner in the writ petitionis on an erroneous assumption that the provisions of the Vienna Conventionand of the Diplomatic Relations (Vienna Convention) Act, 1972 are ultravires and, thus, urge upon this Court to read down certain provisionssuch as Sections 2 and 3 of the Act. The question of reading down anyprovision would arise only if the petitioner is able to demonstrate that theimpugned provision was otherwise ultra vires the Constitution and thelaw. The latter has not been pleaded nor established in the first place.
As aforesaid, on facts as well as in law, the petitioner is not entitledto diplomatic immunity and as a consequence thereof, the further reliefsclaimed in the writ petition cannot be taken forward. Hence, this writpetition deserves to be dismissed and we so order.
We place on record our serious concern about the manner in whichthe proceedings have been pursued by the petitioner before this Court.In the first place, this writ petition was filed without annexing copy ofthe stated judgment of the Madras High Court though a relevant andmaterial document.
Further, in the rejoinder affidavit, the petitioner has annexed copyof the legal opinion given by a former Judge of this Court. That cannotbe countenanced at all. It needs to be deprecated in strong terms andwe do so.
At the same time, we place on record sincere apology given bythe learned senior counsel appearing for the petitioner concerning filingof the opinion of the former Judge of this Court by the Advocate-on-Record or the counsel advising the petitioner, as the case may be.
Interim relief(s), if any, stands vacated forthwith.
Bibhuti Bhushan Bose
Directions issued.
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