CAN INDIAN COURTS compel the missions (i.e., embassies) of foreign States based in Indian territory to judicial proceedings?
In general, the answer is no, because the organs of a State have jurisdictional immunities before the national courts of foreign States (Indian courts, from Sri Lanka’s perspective). The principled rationale for these jurisdictional immunities includes maintaining friendly relations, and ensuring respect for the equality of sovereign States, who should be answerable only to their national courts.
On occasions, however, competing policy considerations give rise to exceptions to jurisdictional immunities. In January 2025, the Madras High Court dealt with such a situation in T. Senthilkumari v The Deputy High Commission for the Democratic Socialist Republic of Sri Lanka in Southern India (2025). A Single Bench comprising Justice D Bharatha Chakravarthy declined the application of jurisdictional immunities for the Sri Lankan Deputy High Commission (‘Sri Lankan mission’). Finding that a diplomatic mission falls within the definition of ‘industry’ under the Industrial Disputes Act, 1947, the Court granted relief to the petitioner in a contractual dispute, ordering her reinstatement. The Sri Lankan mission was served notice, but did not appear in the proceedings.
Finding that a diplomatic mission falls within the definition of ‘industry’ under the Industrial Disputes Act, 1947, the Court granted relief to the petitioner in a contractual dispute, ordering her reinstatement.
In July 2025, a Division Bench of the High Court stayed this order, and may decide the issues afresh. This article addresses not the merits of the industrial dispute, but rather the procedural issue of immunity, focusing on international law, Section 86(1) of the Code of Civil Procedure, 1908 (‘CPC’), and the Diplomatic Relations (Vienna Convention) Act, 1972 (‘Diplomatic Relations Act’).
The article considers the implications of the jurisdictional immunities of Sri Lanka as a State as well as the applicability of ‘diplomatic’ immunity, or lack thereof. It is hoped that the analysis will assist the Division Bench in its deliberation.
The inapplicability of Section 86(1) of the CPC?
Section 86(1) of the CPC provides that:
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.
Section 86(1) codifies the jurisdictional immunities of States before foreign courts within civil procedure in India, yet with the possibility of bringing a suit with the consent of the central government. As observed by the Supreme Court in Mirza Ali Akbar Kashani v. United Arab Republic and Anr (1965),
“…It is not disputed that every sovereign State is competent to make its own laws in relation to the rights and liabilities of foreign States to be sued within its own municipal courts...That being so, it would be legitimate to hold that the effect of s. 86(1) is to modify to a certain extent the doctrine of immunity recognised by International Law. This section provides that foreign States can be sued within the municipal of India with the consent of the Central Government…”
In T. Senthilkumari, it was not shown to the Madras High Court that the petitioner had secured, or even sought consent from the central government to this effect. It is noteworthy that the central government is known to have declined consent in past cases, perhaps prioritising the spirit of friendly relations with foreign States over the settlement of contractual or industrial disputes (e.g., see cases implicating missions and entities from Algeria, the Soviet Union, and Romania). However, despite lacking consent from the central government, the High Court in T. Senthilkumari held that immunity under Section 86(1) did not apply.
The Court relied on the Supreme Court’s decision in H.H. The Maharaja Sahib Shri Bhagatsingh Bahadur of Udaipur v. State of Rajasthan (1963), wherein the Court found that Section 86(1) did not apply to a dispute concerning the petitioner’s retrenchment and conditions of employment by the former ruler of Udaipur. It is to be noted that Section 87B of the CPC provided that the effect of Section 86(1) would extend to suits against former rulers of any ‘former Indian States’ (in this case, the former ruler of Udaipur, a former princely State, which became part of India). However, there is a need for caution; the situations are characteristically different, since the case concerned the former ruler’s privileges under the Indian Constitution. The Court clarified that it was not dealing with a ‘foreign State’, by writing:
It must be emphasized, that these rights, privileges and dignities which are…not in recognition of any sovereign authority continuing to remain vested in them. It is in that view unnecessary to enter upon a discussion as to what immunities and privileges, a foreign sovereign would be entitled to in the Republic of India…
Nevertheless, there is another dimension to Shri Bhagatsingh Bahadur that supports the finding of the Madras High Court—i.e., the holding that disputes brought under the Industrial Disputes Act, 1947, fall outside the scope of the CPC, and therefore, are not technically a ‘suit’ against which immunity is recognised under Section 86(1).
This reasoning was followed by a three-Judge bench of the Supreme Court in Ethiopian Airlines v. Ganesh Narain Saboo (2011), holding that proceedings before consumer forums are not ‘suits’ properly speaking, and hence, do not fall within the scope of Section 86(1) of the CPC, making immunity inapplicable. On this basis, as a matter of Indian civil procedure, it can be said that the Madras High Court correctly did not insist on the central government’s consent in T. Senthilkumari.
On this basis, as a matter of Indian civil procedure, it can be said that the Madras High Court correctly did not insist on the central government’s consent in T. Senthilkumari.
Yet, the question remains whether the Sri Lankan mission may claim that entertaining this suit is consistent with international law. Indian courts have developed a jurisprudence of prioritising national law over international law, in case of any apparent conflicts. However, from the perspective of international law, as stated in Article 3 of the Articles on State Responsibility for Internationally Wrongful Acts (2001),
The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.
In this vein, it will be argued that the order of the Single Bench in T. Senthilkumari is substantially consistent with international law, and should be upheld by the Division Bench of the Madras High Court.
Inapplicability of jurisdictional immunities for employment disputes
India is a State Party to the United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004 (hereinafter, ‘Jurisdictional Immunities Convention’). It is to be noted that the treaty is not yet in force, as the minimum number of State Parties specified has not yet been reached. However, its provisions should be instructive because of the fact that 25 geographically diverse States have become Parties to it, and as it was based on the rigorous work of the International Law Commission (hereinafter, ‘ILC’) on the topic. With regard to the jurisdictional immunities of foreign States before national courts of a forum State, Article 11(1) recognises the following:
Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.
Simply put, no jurisdictional immunity exists with regard to disputes about employment concerns. In S. v Etat indien (1984), the Italian Federal Tribunal refused to apply immunity in a dispute involving an Italian national employed by the Indian mission for clerical and miscellaneous work, because such a suit ‘could not cause any prejudice to the discharge of State functions’ (ILC Commentary, pp 42).
With India now on the other side, this is analogous to the facts in T. Senthilkumari, where the petitioner worked as a clerk and typist at the Sri Lankan mission.
However, it is pertinent to note that Article 11(2) provides that this non-applicability of immunity is subject to certain conditions. Of these, two notable exclusions include:
“(a) the employee has been recruited to perform particular functions in the exercise of governmental authority ;...
(c) the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;... “
Regarding sub-paragraph (a), the ILC stated the following (para 100) :
The cases examined indicate a tendency for courts to find that they have the jurisdiction to hear disputes relating to employment contracts, where the employment mirrors employment in the private sector. However, there has also been recognition that some employment based on such contracts involves governmental activities by the employees and, in such circumstances, courts have been prepared to grant immunity.
In a case from New Zealand, immunity was affirmed on the basis that the role ‘was performed in administrative and clerical support of sovereign functions’. However, an uncritical reliance on this approach is questionable. Ultimately, the aim behind the non-applicability of immunity or lack thereof, on the facts of each case, is to ‘balance the sovereignty of States with the interests of justice involved when an individual enters into a transaction with a State’ (para 98).
In this regard, the non-applicability of immunity in contractual disputes would become moot if a mission could assert that clerical work supported its sovereign functions in a self-judging manner with no objective scrutiny. It will fall on the present Division Bench to carefully consider how to deal with an objection on the lines of Article 11(2)(a), if the Sri Lankan mission decides to appear in the proceedings and raise it.
Regarding sub-paragraph Article 11(2)(c) relating to ‘reinstatement of an individual’, according to the ILC, there was substantial practice favouring the employer State’s ‘discretionary power of appointment or non-appointment by the State of an individual to any official post or employment position’ (pp 43).
It is worth noting that the relief granted by the Single Bench in T. Senthilkumari included an order that ‘the petitioner will be entitled for reinstatement into service with all continuity of service and attendant benefits’. To the extent that a foreign mission has been compelled to reinstate a retrenched employee, it is doubtful that the decision is in conformity with international law. However, this does not prejudice other reliefs, such as the payment of back wages.
In summary, the VCDR and the Diplomatic Relations Act do not pose any procedural bar to this industrial dispute proceeding on the merits.
Diplomatic law
So far, the discussion has focused on the jurisdictional immunities of Sri Lanka as a State. As mentioned initially, however, of relevance may also be the immunities of diplomats, recognised under the Diplomatic Relations Act in India, which in turn gave effect to the Vienna Convention on Diplomatic Relations, 1961 ( ‘VCDR’). This matter, however, is more straightforward.
The Single Bench in T. Senthilkumari referred to Article 33(1) of the VCDR (which is included in the schedule to the Diplomatic Relations Act), providing that diplomatic agents shall ‘be exempt from social security provisions which may be in force in the receiving State’. The Court’s response to this exemption was that, as per Article 33(2)(a), it applies against the ‘private servants’ of the agent only on the condition that ‘not nationals of or permanently resident in the receiving State’. For the Court, this condition failed as the petitioner was an Indian national.
The better view, it is argued, is that the exemption under Article 33(1) would not apply in the first place. After all, the petition was filed impugning the Sri Lankan mission as the respondent, rather than any particular diplomatic agent. The VCDR does not seem to regulate suits against missions themselves, as this is a matter already addressed under the regime of jurisdictional immunities of a State and its organs. In summary, the VCDR and the Diplomatic Relations Act do not pose any procedural bar to this industrial dispute proceeding on the merits.
Conclusion
The laws on jurisdictional immunities and diplomatic relations do not frequently arise in litigations in national courts, including in India. However, as has been seen in the analysis, these regimes draw a clear balance between the competing interests of the forum State and the sending State (here, the State employing the Indian national).
In the present facts, it is clear that this balance lies in the favour of the industrial dispute proceeding to the merits without the procedural bar of immunity, albeit potentially without the relief of reinstatement. Ultimately, it is hoped that the Division Bench uses this opportunity to set a rich precedent for courts in India and elsewhere dealing with such sensitive circumstances.