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《外国人侵权索赔法》允许美国法院对外国人在美国犯下侵犯人权的侵权行为提供帮助。根据这一规定,案件已在美国地方法院提起诉讼。

1976年的(美国)外国主权豁免法案 (“FSIA”)规定“外国应免受司法管辖权”。是否“国家”这个词包括了代表国家的个人这个问题一直在不断争论中,伴随着各种矛盾的决定。最近,在2010年6月1日,美国最高法院给出了否定的答案。[1]仔细地讨论豁免权,它认为个人不受FSIA的保护,以及“在普通法下，请愿者是否可能享有豁免权,和他是否可能有其他有效防御严重的指控的措施,是地方法院在还押候审时首先要解决的问题。”[2]

Introduction

In April 2010, while on a visit to the US, the Road Transport and Highways Minister Kamal Nath was served a notice by a federal district court for his alleged role in the 1984 anti-Sikh riots. The case was filed by a Sikh group called Sikhs for Justice under the Alien Torts Claims Act for against humanity, degrading treatment and wrongful killing.

The Alien Torts Claims Act enables US courts to provide relief in torts that are committed by Aliens that affect persons in US. It is under this provision that the case has been filed in the US district court.

The (US) Foreign Sovereign Immunities Act, 1976 (“FSIA”) provides that a “foreign state shall be immune from the jurisdiction”. Whether the word 'state' includes individuals acting on behalf of the State has been in constant dispute - with various conflicting decisions. Very recently - on June 1, 2010, the Supreme Court of the US has decided that it does not. [1] Discussing immunities in great detail, it held that individuals were not protected under the FSIA, and “[w]hether petitioner may be entitled to immunity under the common law, and whether he may have other valid defenses to the grave charges against him, are matters to be addressed in the first instance by the District Court on remand.” [2]

The Kamal Nath issue has spiraled into a big debate involving various ethical and political aspects - whether the US courts should be congratulated for providing justice that Indian courts failed to give, whether an Indian should submit himself to the jurisdiction of a US court, especially in light of the difficulty being faced in moving forward with the Bhopal Gas trail, and so on. There is a legal aspect involved as well - the propriety of a US court trying an Indian Minister for a crime committed on Indian soil over two decades ago. Prima facie, it sounds absurd. But then again, the US Supreme Court has taken to distributing justice without being impeded by petty jurisdictional issues; indeed, the US has taken to distributing justice without being impeded by petty jurisdictional issues!

This paper does not consider the morality of Minister Nath being tried in the US. Nor does it scrutinize his alleged role in the riots. It focuses on a very specific legal aspect - whether he is entitled to any sort of immunity from such proceedings, and if so, what is the procedure for claiming the same. This paper studies, primarily, US case law to come to a conclusion that Minister Nath is unlikely to be granted immunity from trial.

Part I discusses the notion of Head of State Immunity under common law. Part II describes the availability of the immunities – the conditions that need to be fulfilled in order for immunity to be granted. Part III discusses the