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Thursday, December 22, 2016


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Court Says India Immune From Torture Suit by Sikh




A Sikh political activist who claims he was tortured in India after being extradited from the United States cannot sue the Indian government or Indian officials in American courts, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel upheld a district judge’s ruling that diplomatic assurances given to the State Department, that Kulvir Singh Barapind’s legal and political rights would be respected upon his return to face murder charges, did not amount to a waiver of sovereign immunity.

Barapind sued the Republic of India, the State Government of Punjab, the Punjab police and various government officials in U.S. District Court in Fresno. His complaint argued that the Foreign Sovereign Immunities Act permitted the action because the Indian government violated an understanding with the State Department that he would not be tortured.

Barapind came to the United States from India in 1993 and applied for asylum. He claimed that his leadership role in a Sikh nationalist political organization that supports the secession of the state of Punjab from India had resulted in multiple arrests and torture at the hands of “Indian security forces.”

While the asylum claim was pending, the Indian government asked for Barapind’s extradition. The U.S. government brought judicial proceedings in 1997, which led to eight years of litigation, culminating in a district court order finding him extraditable on three counts of murder, out of 13 charges on which extradition was sought. 

Turns to State Department

Barapind then turned to the State Department, seeking relief under the Foreign Affairs Reform and Restructuring Act, or FARRA, which, among other things, implements the Convention Against Torture.

A series of notes were exchanged with India, in which that country’s government insisted that as a signer of the Convention Against Torture, it would protect Barapind’s rights, not only under the treaty, but under India’s human rights law and criminal laws, which prohibit the use of force or coercion against suspects.

Barapind was returned to India in 2006. He was acquitted on the murder charges in 2008, and remained in India, resuming his religious and political activities, his complaint said. Barapind claimed the Indian government and its officials violated the agreement when they arrested him on Sept. 20, 2012 and tortured him for five days. 

Ishii, however, found that he had no jurisdiction over the subject matter and dismissed the action.

Judge Jane Restani of the Court of International Trade, sitting on the Ninth Circuit by designation, said the district judge was correct.

Restani explained that the Ninth Circuit has found implied waivers of sovereign immunity in only a limited number of circumstances, as when the foreign state has agreed to arbitration in another country, has agreed that a contract is governed by the law of a foreign country, has filed a responsive pleading that does not assert sovereign immunity, or has entered into a written agreement contemplating that disputes will be heard by U.S. courts.

No Applicabilty

None of those circumstances applies to Barapind’s action, she said. The diplomatic understanding on which he relies is not a contract, does not specify what country’s laws it should be interpreted under, and does not suggest that India agreed to litigate in the United States in the event it were accused of violating its commitments, Restani said.

“Moreover, the Understanding contemplates that the conduct at issue—the potential torture of Barapind—would occur in India,” she said. She also noted that the Convention Against Torture “is not self-executing and by itself does not have the status of law within the United States.”

She distinguished Joseph v. Office of the Consulate Gen. of Nigeria (1987) 830 F.2d 1018, in which the Ninth Circuit held that consular immunity did not bar an action for damage to a house that the plaintiff had rented to the consulate, to serve as a consular officer’s residence. The court in that case noted that the leasing of the residence was a transaction of “wholly local nature,” so that it was “virtually inconceivable that the Consulate contemplated that adjudication of disputes would occur outside of the United States.”

In the present case, Restani said, it could not reasonably be assumed that by exchanging diplomatic notes with respect to the potential torture of Barapind in India, the parties contemplated that disputes would be litigated in the United States or under U.S. law.

Judges Carlos T. Bea and Sandra S. Ikuta joined the opinion.

The case is Barapind v. Government of the Republic of India, 14-16983.


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