Margret D Cruz Aged 54 Years vs Union Of India on 1 March, 2013

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Kerala High Court

Margret D Cruz Aged 54 Years vs Union Of India on 1 March, 2013

This writ appeal has been field against the judgment dated 01.03.2013 in O.P. No. 13514 of 1997 by which judgment the learned Single Judge disposed of the Original Petition directing the 1st and 2nd respondents to comply with the order passed by the Prime Minister's Office dated 15.02.2013, sanctioning the financial assistance of Rs.5 lakhs to the family of the petitioner and further directing the State Government to disburse an amount of Rs.1 lakh to the petitioner. The learned Single Judge referring to above payments as settlement left open the legal issues involved in the case.

2. The petitioner aggrieved by the said judgment has come up in this writ appeal. The parties shall be W.A. No. 1271 of 2013 -: 2 :- referred to as described in the Original Petition. In the Original petition, statement, counter affidavits and other affidavits were filed by the respondents to which reply was also filed by the petitioner.

3. The facts of the case as emerged from the pleadings of the parties are as follows: The petitioner's husband, Sri.Wilfred D'Cruz, was employed as Telex Operator in Riyadh (Saudi Arabia) in a company named "M/s.Jassir.S.AL-Obeid Corporation for Trading and Contracting". On 18.05.1985 when the Wilfred D'Cruz was walking towards the bus stop from his office, some explosive substance kept in a garbage can by the side of the road exploded, which killed him. The body of the husband of the petitioner was sent by the authorities of the Saudi Government after 2= months. The company, under which the petitioner's husband was employed, sent a communication dated 28.07.1985 addressed to the Indian Embassy Riyadh sending a cheque of Saudi Riyal 6668/- as salary of May, 1985, transportation allowances, Housing Allowances, overtime work and Ramadan Bonus. The W.A. No. 1271 of 2013 -: 3 :- petitioner sent a letter dated 13.05.1986 (Ext.P4) to the Ambassador, Embassy of India, Riyadh, Kingdom of Saudi Arabia requesting that effective steps be taken against the employer as well as against the Government so that petitioner and her minor children are justly compensated. The Embassy of India sent a communication dated 24.06.1986 to the Ministry of Foreign Affairs, Kingdom of Saudi Arabia (Ext.P5) requesting the Ministry to impress upon the authorities concerned for an early settlement of the case and transfer the death compensation (blood-money) to the Indian Embassy at the earliest for the onward disbursement to the legal heirs. A copy of the letter was also enclosed to the petitioner informing that death compensation matter is being pursued and a request was also made to execute Power of Attorney in favour of the Ambassador, Embassy of India, Riyadh and to forward to the Embassy to take up the matter with the concerned authorities. The petitioner and other legal heirs executed Power of Attorney on 05.09.1986 in favour of the Ambassador of Indian W.A. No. 1271 of 2013 -: 4 :- Embassy, Riyadh, Saudi Arabia.

4. Another letter dated 20.04.1987 was written by the Embassy of India to the Ministry of Foreign Affairs, Kingdom of Saudi Arabia, Riyadh requesting to impress upon the authorities for early settlement of the case and transfer of the Blood-Money and legal dues to the Embassy at the earliest to the legal heirs of the deceased Wilfred D'Cruz. The Embassy of India sent a letter dated 04.11.1987 to the Ministry of External Affairs, New Delhi (Ext.P8) whereby the Ministry of External Affairs was informed that the Embassy of India has been taking up the case to the Saudi Government at regular intervals but response from the Saudi Government regarding the death compensation is awaited. It was further mentioned that no death compensation would become payable unless a third party responsibility is fixed for the bomb-blast.

5. A Member of Parliament, Prof. K.V.Thomas, sent a letter in the year 1987 which was forwarded by Ministry of External Affairs on 21.10.1987 regarding W.A. No. 1271 of 2013 -: 5 :- payment of the death compensation due to the death of Wilfred D'Cruz who died in Riyadh on 18.05.1985. Another letter was sent by Prof. K.V.Thomas, Member of Parliament on 12.01.1992 (Ext.P9). The Embassy of India, Riyadh sent a letter dated 27.09.1993 to the petitioner informing that no death compensation is admissible as no one has been held responsible for the death of petitioner's husband. It was further stated that under Shariat Laws, death compensation is to be paid by the person held responsible for the death. The Petitioner sent a representation dated 04.11.1994 to the Prime Minister's office referring to the correspondence with the Embassy of India and by which the petitioner requested that necessary action may be taken so that the long outstanding blood-Money/death compensation is paid to the family by the Saudi authorities without further delay. Thereafter the petitioner filed the Original Petition with the following prayers:

"i. Issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents to take necessary steps to W.A. No. 1271 of 2013 -: 6 :- get the Blood Money/death compensation from the Saudi Government immediately.

ii. Issue a writ of mandamus or other appropriate writ, order or direction, directing the respondent to provide an amount of Rs.1,00,000/- as death compensation, in the event of failure of the Saudi Arabian Government to pay the compensation.

iii. Issue such other relief on this Hon'ble Court deems fit and proper."

6. A statement was filed on behalf of the 1st and 2nd respondents dated 22.10.1997 wherein it was stated that the Saudi Ministry of Foreign Affairs vide their note dated 29.10.1988 had informed that the concerned Saudi Authorities had not held anyone responsible for the death of the petitioner's husband and under the 'Shariat Law', death compensation is not admissible.

7. Counter affidavit dated 17.06.1998 on behalf of 1st and 2nd respondents was filed wherein a copy of the letter dated 27.09.1993 by the Embassy of India addressed to the petitioner has been brought on record and it was mentioned that no death compensation is admissible as no one has been held responsible for the death of the petitioner's husband(Ext.R1(a)). Copy of W.A. No. 1271 of 2013 -: 7 :- letters dated 24.06.1986, 10.01.1987 and 20.04.1987 sent by the Embassy of India to the Ministry of Foreign Affairs, Kingdom of Saudi Arabia, Riyadh requesting for early settlement of the case and transfer of blood-Money (death compensation Money) has been brought on record.

8. Another statement dated 09.12.1999 has been filed by the Ministry of External Affairs wherein it was again stated that no death compensation due to bomb- blast could be given under the 'Shariat Law' because the Saudi Authorities had not held anyone responsible for the same. Petitioner filed an application for impleadment seeking to implead the Secretary, Ministry of Overseas Indian Affairs, Government of India, Central Secretariat, New Delhi as additional respondent. The petitioner was permitted to amend the writ petition, by order dated 13.12.1999, by adding an additional prayer, i.e. prayer No.(iv) which reads as under:

"(iv) issue a writ of mandamus, any other order, writ or direction, directing the first respondent herein to raise the claim petition against the Saudi Arabian Government for payment of blood money/death compensation to the petitioner before the W.A. No. 1271 of 2013 -: 8 :- International Court of Justice as the State's claim immediately."

9. A copy of the letter dated 09.11.1999, wherein the Ministry of External Affairs has brought on record the advice given by the Legal & Treaties Division of the Ministry stating that:

"(i) Individual parties cannot take the matter before the International Court of Justice (ICJ).

(ii) Chapter II of the Statute of International Court of Justice categorically states that "only States may be parties in cases before the Court". Therefore, the petitioner, has no legal right to plead that the matter may be referred to ICJ.

(iii) ICJ would deal only with matters concerning International Law. This being a case, where only Saudi Law is applicable, it cannot be taken before the ICJ."

9. A counter affidavit on behalf of the respondents dated 28.06.2010 was filed by the Joint Secretary(Consular), Ministry of External Affairs, New Delhi wherein the communication dated 09.11.1999 was relied and it was reiterated that compensation if any has to be granted by the Saudi Government as per their local laws. There is no bilateral treaty with Saudi Arabia as far as payment of such compensation is W.A. No. 1271 of 2013 -: 9 :- concerned. It was mentioned that the Ministry of Overseas Indian Affairs has taken several measures/initiatives to help distressed Indian nationals residing abroad. The details of the measures taken were indicated in paragraph 6 of the counter affidavit.

10. The learned Single Judge, who heard the writ petition, issued various directions to the respondent directing the matter to be placed before the concerned Minister under the Ministry of Overseas Affairs and pass appropriate orders granting some reliefs to the petitioner. The learned Single Judge passed an order on 18.12.2012 observing that the Minister in the special power has to pass an appropriate order enabling the petitioner to get the relief of Rs.5 lakhs as the minimum relief and the Ministry can modulate the scheme to that effect. The learned Single Judge also noticed that the State Government, after assessing the financial background of the litigant, had offered Rs.1 lakh to the petitioner. An affidavit was filed stating that the Ministry has taken up the issue with the Prime W.A. No. 1271 of 2013 -: 10 :- Minister's office and the Hon'ble Prime Minister has sanctioned a financial assistance of Rs.5 lakhs to the family of deceased Wilfred D'Cruz from the Prime Minister's discretionary fund as a relief measure. After noticing the aforesaid development which took place during the pendency of the writ petition, the learned Single Judge decided to close the writ petition with the following directions:

"9. In view of the above, I propose to close this case directing the first and second respondents to comply with the order of Prime Ministers Office dated 15.02.2013 sanctioning the financial assistance of Rs.5,00,000/- to the family of the petitioners within a period of one month on furnishing necessary address, bank account details, etc. to the respondents or to the counsel appearing for the respondents. As decided by the cabinet of the State Government, the amount of Rs.1,00,000/- sanctioned by the State Government, shall also be disbursed to the petitioner within a period of one month from the date of this judgment. In view of the settlement, the legal issues involved in this case are left open. The petitioner upon receipt of the relief amount is directed to file a memo for the compliance and proper acquittance of receipt of the amounts before this honourable court and the registry may accept the same."

11. The amount of Rs.5 lakhs and Rs.1 lakh as W.A. No. 1271 of 2013 -: 11 :- directed by learned Single Judge were paid to the petitioner which fact is not disputed in this appeal.

12. The appellant has filed this writ appeal challenging only a part of the judgment by which learned Single Judge declined to command the Government of India to prefer a claim against the Saudi Arabian Government in the International Court of Justice for and on behalf of the appellant for the death compensation. The prayer made in this appeal in this context is relevant to be noticed which is as follows:

"For these and among other grounds that would be urged at the time of hearing it is most respectfully prayed that, that part of the judgment dated 01.03.2013 in O.P. No.13514 of 1997 of learned Single Judge declining to command the Government of India to prefer a claim against the Saudi Arabian Government in the International Court of Justice for and on behalf of the appellant for the death compensation of her husband may be set aside and allow the writ appeal."

13. Thus, in view of the above, the scope of this appeal is confined only to the relief claimed by the petitioner in the writ petition seeking a mandamus directing the Union of India to raise the claim against W.A. No. 1271 of 2013 -: 12 :- the Saudi Arabian Government for payment of blood- money/death compensation to the petitioner before the International Court of Justice as the State's claim.

14. We have heard Sri.A.X. Varghese, learned counsel appearing for the appellant and Sri.S.Krishnamoorthy, learned Central Government Counsel and Sri.C.R.Syam Kumar, learned Government Pleader.

15. Sri.A.X.Varghese, learned counsel for the appellant in support of the writ appeal contends that the Saudi Arabian Government did not do anything to prevent the Bomb explosion and failed to conduct a fair investigation and prosecution of the culprits who are responsible for the bomb blast, hence the Central Government ought to have preferred a claim in the International Court of Justice against the Saudi Arabia for getting compensation to the appellant, in the event of failure of the Saudi Arabian Government to award compensation of Rs.10 lakhs.

16. It is submitted that the learned Single Judge ought to have found that the issues became a question of W.A. No. 1271 of 2013 -: 13 :- international law when there was no proper investigation and when the perpetrator of the bomb blast was not identified and arrested and prosecuted by the Saudi Arabian Government. The Saudi Arabian authorities failed to conduct an adequate investigation to apprehend the assailants due to which the matter comes to the realm of international law. For and on behalf of the Indian citizen, the India Government alone is empowered to make a claim in the International Court of Justice. Learned counsel for the appellant has also referred to various cases decided by the International Court of Justice and International Commission according compensations to the alien victims on account of the failure of the Government where the alien is working.

17. Sri.S.Krishnamoorthy, learned counsel appearing for the respondent submits that under the 'Shariat Law' applicable in Saudi Arabia the death compensation can be awarded only when the criminal liability is fixed on any person and he is apprehended. It is submitted that since no one could be apprehended W.A. No. 1271 of 2013 -: 14 :- for the bomb blast, death compensation has not been awarded to the petitioner which fact was communicated to the petitioner by the Embassy of India, Riyadh. It is submitted that there is no bilateral treaty between India and Saudi Arabia to refer such claims before any International organisation. It is submitted that under the International Court of Justice only the State parties can raise the claim. Individual claim for any compensation regarding an incident cannot be raised in the International Court of Justice. It is submitted that on the direction of learned Single Judge, substantial relief has already been granted to the petitioner by payment of Rs.6 lakhs (Rs.5 lakhs+ Rs.1 lakh) as compensation, to which Government of India was not liable to pay. Hence the petitioner is not entitled for any further relief.

18. Learned Government Pleader referring to the Statute of International Court of Justice contends that under the said Statute, the claim as raised by the petitioner in this case cannot be a subject matter W.A. No. 1271 of 2013 -: 15 :- before the International Court of Justice. It is submitted that the prayer of the petitioner to direct the Government of India to refer the case to the International Court of Justice is misconceived and cannot be granted in this writ appeal.

19. The only issue to be considered in this Writ Appeal is as to whether the Writ Petitioner had made out a case for issuing a writ of mandamus directing the Union of India to raise the claim of compensation (blood money) against the Kingdom of Saudi Arabia (for short, "KSA") consequent to the death of Wilfred D'cruz which took place on 18.05.1985 in Riyadh, KSA in a bomb blast, in the International Court of Justice. In support of the above claim, learned counsel for the petitioner, elaborating his submissions, contended that there has been denial of justice on the part of the Government of Saudi Arabia in paying the death compensation (blood money) to the petitioner since it failed to apprehend the culprits and for such cause, the Union of India is obliged to take up the claim in W.A. No. 1271 of 2013 -: 16 :- the International Court of Justice against the Government of Saudi Arabia.

20. It is submitted that Wilfred D'cruz, an Indian National suffered a wrong in the KSA which could not be redressed by law enforcement agency. The incident thus constituted a breach of International law. It is an indirect international wrong which can be remedied in the International Forum since before the International Court of Justice, it is the State which can raise the claim. The Union of India ought to have raised the claim. The KSA which had failed in its duty of repression and punishment of the guilty person is indirectly responsible in the International Forum to compensate the petitioner. Learned counsel for the petitioner in support of his submission relied on Strake's International Law (11th Edn.) and D.W.Greig's International Law, 2nd Edn. Shri A.X.Varghese, learned counsel for the petitioner has also referred to and relied on certain cases decided by the International Commissions, viz., Thomas H.Youmans v. United Mexican States (1926), Harry Roberts v. United Mexican States (1926), Laura M.B.Janes v. United Mexican States (1925), etc. W.A. No. 1271 of 2013 -: 17 :-

21. International Court of Justice was established by the United Nations Charter and came into existence in February, 1946. Chapter XIV contains a heading "The International Court of Justice". Article 92 of the Charter provided as follows:

"The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexes Statue, which is based upon the Statue of the Permanent Court of International Justice and forms an integral part of the present Charter."

The International Court of Justice was created as the successor to the permanent court of International Justice, established pursuant to Article 14 of the covenant of the league of Nations in 1921 and was modeled closely on that body.

22. International Court of Justice, principal judicial organ of the United Nations is a standing Tribunal to which States may bring their disputes and it is also empowered to give advisory opinion to the United Nations organs and specialised agencies. Jurisdiction of the International Court of justice is W.A. No. 1271 of 2013 -: 18 :- derived from the parties to the case which may be given either directly in respect of a specific dispute or in advance in respect of a definite class or category of disputes. The Statute of the court also provides for acceptance of a general jurisdiction by a simple declaration which may however, be subject to reservation.

23. Before we deliberate over the issues raised, it is necessary to recaptulate the facts and events of the case to appreciate as to whether the facts of the case makes out a case for issuing a writ of mandamus to refer the case of the petitioner to the International Court of Justice.

24. The incident in which Wilfred D'cruz killed on 18.05.1985 has been pleaded by the petitioners herself in paragraphs 1 and 2 of the Writ Petition which is to the following effect:

"1. The petitioner is a widow living in the midst of poverty and starvation with her two minor children in the above said address. The petitioner's husband Mr.Wilfred D'cruz died in a bomb blast in Riyadh, Saudi Arabia on 10.05.1985. The deceased W.A. No. 1271 of 2013 -: 19 :- Mr.D'cruz was employed in a Company by name "M/s.Jassir S.AL- Obeid Corporation for Trading and Contracting" in Saudi Arabia, as Telex Operator and derived an amount of Rs.15,000/- as salary per month.

2. The petitioner's husband Mr.Wilfred D'cruz was killed in a bomb blast as averred which took place on one of the public streets in Riyadh, Saudi Arabia. The incident occurred when some explosive substances kept in a garbage can by the side of the road, exploded as the petitioner's husband walking towards a bus stop from his office, which killed him instantaneously. The photo copy of the news item published in the Kerala Times, a Malayalam daily, dated 25.05.1985 is produced herewith and marked as Exhibit P1."

25. As noted above, the Embassy of India, Riyadh, KSA has taken up the issue of settlement of the case with the Ministry of External Affairs of KSA vide letters dated 24.06.1986, 10.01.1987 and 20.04.1987. It is to be noted that Prof.K.V.Thomas, a Member of Parliament from Kochi, Kerala had also taken up the case of the petitioner with the Ministry of external affairs, New Delhi by letter dated 21.10.1987. The Embassy of India, Riyadh, KSA sent letter dated 04.11.1987 to the Ministry of Exteranal Affairs, New W.A. No. 1271 of 2013 -: 20 :- Delhi where it was stated that no death compensation would become payable unless a third party responsibility is fixed for the bomb blast. The letter further stated that the Saudi Government has not succeeded in determining the identity of the people responsible for the bomb blast. After receipt of the aforesaid letter dated 04.11.1987, both Prof. K.V.Thomas and the petitioner had again represented the matter before the Government of India. Petitioner also submitted an application dated 10.09.1993 to the Prime Minster of India complaining about non-receipt of the death compensation (blood money) of her husband, Wilfred D'cruz. The Embassy of India, Riyad, KSA sent communication dated 27.09.1993 to the petitioner wherein it has been stated that no death compensation is admissible as no one could be held responsible for the death of petitioner's husband. It was further communicated that under the Saudi Law (Sheriyat Law) death compensation is to be paid by the person held responsible for the death and in the instant case no W.A. No. 1271 of 2013 -: 21 :- one has been held responsible for the death. It is useful to quote the letter dated 27th September, 1993, which is to the following effect:

"EMBASSY OF INDIA post box No.94387 Riyadh 11693 (SAUDI ARABIA) Tel: 477 7006 (4 times) Fax: 4778627 Telex: 406077 INDEMB SJ 27thSEPTEMBER, 1993 No.RIY/L/142/85 Shrimati Margret D'cruz House No.16/1940 Thoppumpady, Cochin -5, Kerala.

Madam, Please refer to your letter dated nil addressed to the Prime Minister, a copy of which was endorsed to this Embassy, regarding settlement of death of compensation in respect of late Shri Wifred D'Cruz.

2. As advised you earlier, no death compensation is admissible as no one has been held responsible for the death of your husband. You may like to know that under Saudi Laws, death compensation is to be paid by the person held responsible or the death and in the instant case no one has been held responsible for the death of your husband. The legal dues, amounting to SR.6668/- and service benefits amounting to Rs.51,863.86 have already been received by you.

W.A. No. 1271 of 2013 -: 22 :-

Yours faithfully, Sd/-

(M.S. Narayan) Attache (Labour)"

26. As noted above, a statement was filed by respondents 1 and 2 on 22.09.1997 wherein the following was stated:

"As per the instruction received by Fax Message from the Embassy of India, Riyadh, Saudi Arabia, by the Regional Passport Officer, Cochin, it is hereby stated that the matter of death claim of the petitioner's husband was vigorously pursued at regular intervals by the Embassy with the concerned Saudi Authorities. But the Saudi Ministry of Foreign Affairs vide their Note dated 29th October, 1998, had informed that the concerned Saudi Authorities had not held anyone responsible for the death of the petitioner's husband. As such, under the "Shariat Law" death compensation is not admissible."

27. A counter affidavit has also been filed on behalf of respondents 1 and 2 dated 17.06.1998 wherein in paragraph 4, the following has been stated:

"4. The petitioner was paid Saudi Riyals (6668) towards salary for May 85 and Saudi Riyals 16,000/- towards service benefits and the matter was vigorously pursued at regular intervals by the Embassy with the concerned Saudi Authorities. Several W.A. No. 1271 of 2013 -: 23 :- communications were sent to the Foreign Office of the Kingdom of Saudi Arabia requesting them to pay the compensation amount payable in this case. In spite of the best efforts of the respondents, the Govt. of Saudi Arabia did not send a favourable reply. This is because the Govt. of Saudi Arabia could not apprehend the person who caused the explosion resulting in the death of the petitioner's husband. Copies of the communications sent to the Foreign Office of the Kingdom of Saudi Arabia are annexed as Exhibit r1(b), R1(c), R1(d)."

By a statement dated 09.12.199 filed on behalf of the Ministry of External affairs, the communication dated 09.11.1999 has been brought on record, where the following was stated:

"(i) Individual parties cannot take the matter before the International Court of Justice (ICJ)

(ii) Chapter II of the Statute of International Court of Justice categorically states that "only States may be parties in cases before the Court". Therefore, the petitioner, has no legal right to plead that the matter may be referred to ICJ.

(iii) ICJ would deal only with matters concerning International Law. This being a case, where only Saudi Law is applicable, it cannot be taken before the ICJ."

28. Another counter affidavit on behalf of the Ministry of External Affairs dated 28.06.2010 has been filed wherein in paragraph 4, the following has been W.A. No. 1271 of 2013 -: 24 :- pleaded:

"4. However, we have again consulted the Legal & Treaties Division of the Ministry of External Affairs which confirmed that the case cannot be referred to the ICJ since it is an individual case that happened in Saudi Arabia in 1985. Compensation, if any, has to be granted by the Saudi Government as per their local laws. There is no bilateral treaty with Saudi Arabia as far as payment of such compensation is concerned."

29. From the above it is clear that the Embassy of India, Riyadh has pursued the matter of payment of compensation (blood money) consequent to the death of Wilfred D'cruz. However, no compensation could be payable to the petitioner since the KSA could not identify the person who caused the death, who according to Saudi Law was liable to pay compensation.

30. Whether in the facts of the present case, Government of India was obliged in law to submit the claim on behalf of the petitioner as States claim before the International Court of Justice?

31. The Statute of International Court of Justice contains different Articles for organisation of the court, competence of the court procedure and other W.A. No. 1271 of 2013 -: 25 :- matters. Chapter II of the Statutes contains a heading "Competence of the Court". Articles 34 , 35 , 36 and 37 which are relevant for the present case are as follows:

"34.

1. Only states may be parties in cases before the Court.

2. The Court, subject to and in conformity with its Rules, may request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative.

3. Whenever the construction of the constituent instrument of a public international organization or of an international convention adopted thereunder is in question in a case before the Court, the Registrar shall so notify the public international organization concerned and shall communicate to it copies of all the written proceedings.

35.

1. The Court shall be open to the states parties to the present Statute.

2. The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid 25 down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.

3. When a state which is not a Member of the United Nations is a party to a case, the Court shall fix the amount which that party is to contribute towards the expenses of the Court. This provision shall W.A. No. 1271 of 2013 -: 26 :- not apply if such state is bearing a share of the expenses of the Court.

36

1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.

2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

a. the interpretation of a treaty;

b. any question of international law;

c. the existence of any fact which, if established, would constitute a breach of an international obligation ;

d. the nature or extent of the reparation to be made for the breach of an international obligation.

3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.

4. Such declarations shall be deposited with the Secretary-

General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.

5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in W.A. No. 1271 of 2013 -: 27 :- accordance with their terms.

6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court. 37

Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice."

32. Both India and Saudi Arabia are members of the United Nations and thus necessarily become party to the Statute of International Court of Justice. Thus there is no lack of competence in raising international claim before the International Court of Justice against the party States by India.

33. In this context it shall not be out of place to mention that recently International Criminal Court has also come into existence by Statute with effect from 04.07.2002. The International Criminal Law is relatively new discipline and does not pretend to be a complete system of criminal law. It is not intended to be for replacement of totality of domestic W.A. No. 1271 of 2013 -: 28 :- law. The International Criminal Court has jurisdiction over the "most serious crimes of International concerns, crimes against community, War Crimes, Aggression, etc." However, in view of the fact that the present case where we are only called upon to consider as to whether the present matter could have been taken by International Court of justice no further consideration is necessary in the above regard. As noted above, we have to confine ourselves to the question as to whether Government of India is obliged to lodge the claim before the International Court of Justice against the KSA for death compensation.

34. We shall now refer to the views of celebrity author of International Law, D.W. Greig., 2nd Edition, who has elaborately dealt with the subject. In Chapter X, "International Claims-I State Responsibility" makes the statement of law in the following words:

"International law is only concerned with the wrongful acts of one international person against another on the international W.A. No. 1271 of 2013 -: 29 :- plane. It is not concerned with the injury suffered by individuals except in so far as such injury entitles a state or international organisation to present a claim on their behalf against the entity responsible. Although international responsibility concerns the rights of international organizations as well as the rights of states, for the moment the discussion will deal with the rights and obligations of states: the way in which the rules of state responsible have been adapted to claims by and against international organisations will be considered in a later chapter Obvious examples of wrongful acts by one state against another would be the invasion of its territory, the sinking or seizing of a ship flying its flag in time of peace, the shooting down of one of its aircraft, the arrest of its ambassador, or the breach of a treaty obligation owed to that other state. All such cases involve a direct international wrong against the other state for which the first state is responsible.

On the other hand, there are a large number of situations in which the injury suffered by the claimant state is indirect, or in which the responsibility of the respondent state will only arise indirectly, or in which both the injury and the responsibility are indirect."

Grieg thus categorized International wrongs as direct International wrong and indirect International wrong. Present is not a case of direct International wrong since there is no allegation that the KSA is responsible for the death caused to Wilfred D'cruz. While explaining indirect International wrong, W.A. No. 1271 of 2013 -: 30 :- followoing is stated:

"It was suggested that International wrongs that have for the purposes of the present discussion been termed "indirect" may be classified into three separate categories, depending upon the circumstances that give rise to them. These indirect wrongs arise

(a) where nationals of state A cause injury to nationals of state B, who are later unable to obtain justice from the courts or authorities of state A; (b) where the officials or organs of state A directly injure by their acts or omissions a national of state B; or (c) when acts of individuals in the state A cause damage to the property of state B in circumstances where state A should have prevented the damage.

Although these separate situations are similar in that they often raise some of the legal issues, they are not identical. Situation ) in particular will be dealt with separately at the end, but the discussion of (a) and (b) will of necessity require comparisons to be drawn, because between them the similarities are greatest..." The author further elaborating the basis of responsibility for indirect wrong refers to the ground under the heading "denial of justice". It is stated as follows:

"It is obvious enough that every injury suffered by an alien in foreign territory is not an international wrong. The American in Paris who is beaten up by local hooligans is not for that reason alone entitled to have a diplomatic claim presented on his behalf against the French Government by the State Department. The injury is a wrongful act according to French law: international law is in no W.A. No. 1271 of 2013 -: 31 :- way concerned with the incident.

The matter can only come on to the international plane if the French authorities can be in some way inculpated in what occurred. This may be the case if the French authorities had connived at or failed to take adequate measures to prevent such incidents against foreigners (a possibility which is dealt with later); or if, following the incident, the French authorities fail to make an adequate attempt to apprehend those responsible, or if the French courts fail to do justice that we are concerned. It is this denial of justice which will bring the matter on to the international plane."

Another principle which has been referred to by Greigh is exhaustion of local remedies. The author states that a State cannot succeed in a claim on behalf of its national before an International Tribunal unless all the remedies available under the local law have been tried and found wanting. The following principle is stated by Greigh:

"It is a well-established principle of international law that a state cannot succeed in a claim on behalf of its national before an international tribunal unless all the remedies available under the local law have been tried and found wanting. However, while this general proposition of the rule, and from the reasons behind it, are capable of being resolved by reference to such a proposition."

35. Strakes International Law (11th Edn.) also W.A. No. 1271 of 2013 -: 32 :- throws considerable light on the nature of States responsibility. In Chapter X dealing with States responsibility writes that most of the cases which come under the above heading concern injuries suffered by citizens abroad. He further opines that where the illegal acts are committed by private citizens and not by an organ or official of the State the grounds for not imputing liability to the State are much stronger. The following principle is stated:

"Where the illegal acts are committed by private citizens and not by an organ or official of the state the grounds for not imputing liability to the state are much stronger, for the doctrine of imputability rests on the assumption that the delinquency has been committed by an agency at least of the state concerned, or by persons actually acting on behalf of the state. But here again, by their omissions, or default, the agencies of the state may have broken some independent duty of international law, and liability may then be imputed to the states for example, if it if fails in its duty of repression and punishment of the guilty persons or if it has actually inspired the illegal act or acts committed, or if it has become an accessory after the fact by wilfully benefiting from the wrongful act or acts of the private citizen or citizens concerned, or if, by conduct or declaration (oral or written) it has authorised or ratified the unlawful act or acts. It is sometimes said that before a state is liable in this connection, there must be some implied W.A. No. 1271 of 2013 -: 33 :- complicity in the wrongful act either by negligent failure to prevent the injury, or to investigate the case, or to punish the guilty offender. In this connection the inordinate upsurg during recent years of terrorist acts committed by the individuals or groups has raised problems concerning the extent to which the states, in the territory of which these acts have been perpetrated, may be liable in respect of the injuries or losses caused by these acts. Inter alia, it has been suggested that the local state may incur liability by reason of the negligent creation of opportunities for the commission of terrorist acts, or by the failure to punish terrorists adequately for their crimes or at all, or because of the failure to permit their extradition to a state competent to try and punish them."

36. Now we come to some cases relied on by the learned counsel for the petitioner where the claims on the basis of States liability were considered by the International Arbitral Tribunal, International Commissions. The first case relied is the Harry Roberts's case (Reports of International Arbitral Awards, vol.4 page 77) decided on November 2, 1926: In the above case, the Commission held Mexico responsible for cruel and inhumane treatment to prisoners. It was alleged that Roberts was kept along with as many as W.A. No. 1271 of 2013 -: 34 :- thirty or forty other men in "a room thrity-five feet long and twenty feet wide with stone walls, earthen floor, straw roof, a single window, a single door and no sanitary accommodations": that the prisoners had no washing facilities; that they were given no opportunity to take exercise; and that the food given to them were "scarce, unclean, and of the coarsest kind." The Mexican Government did not deny these allegations but argued that Roberts had been accorded the same treatment as that given to everyone else. In upholding the American claim on this point the Commission commented that facts "with respect to equality of treatment of aliens and nationals may be important in determining the merits of a complaint of mistreatment of an alien. But such equality is not the ultimate test of the propriety of the acts of authorities in the light of international law. That test is, broadly speaking, whether aliens are treated in accordance with ordinary standards of civilisation. The above case was a case which was primary example of wrong by State authorities W.A. No. 1271 of 2013 -: 35 :- against a foreign national. The above case has no application to the facts of the present case since the present claim is not founded on any excesses committed by the KSA authorities.

37. Another case relied on by he learned counsel for the petitioner is the Youmen's claim where following are the facts of the decision: A group of three United States nationals was being attacked by a Mexican mob. Troops sent to protect them joined in the attack, which resulted in the death of the Americans. The Mexican Government contended that, as the soldiers had acted in complete disregard of their instructions, Mexico could not be held responsible for the deaths. The Commission, while recognizing that a State might not be responsible in certain cases for malicious acts by officials in their private capacity, held that State would almost invariably be responsible for wrongful acts committed by an officer. In this case the soldiers, as in the Caire claim, had been under the immediate supervision and in the presence of the officer in charge W.A. No. 1271 of 2013 -: 36 :- of them.

38. Although the Youmen's decision did relate to a situation which, on the facts, it is possible to classify as a misuse of governmental authority, the Commission primarily dealt with the issue of whether or not the activities had been within, or outside, the scope of authority of the soldiers concerned. As the Commission pointed out, soldiers (or other officials) "inflicting personal injuries or committing wanton destruction or looting always act in disobedience of some rules laid down by superior authority. There could be no liability whatever for such misdeeds if the view were must always be considered as personal acts". Providing the test applied by international law for determining the scope of the officials' apparent authority is a wide one and the misuse by officials of the powers entrusted to them by the State will always fall within the scope of their apparent authority as determined by international law. An official can hardly use his power and position as an official if he is not W.A. No. 1271 of 2013 -: 37 :- acting as an official, even though he may be employing his powers entirely for his own ends. Youmen's case is clearly not attracted nor help the petitioner in the facts of the present case. In the above case troops were sent to protect the three U.S. nationals but they joined in attack which resulted in the death of Americans. The Commission in the facts of the above case held that misuse by Officers of the powers entrusted to them by the State will always fall within the scope of the apparent authority determined by the International Law. The above case thus does not help the petitioner.

39. In Mexico v. U.S. (1926) (the case of Quintanilla) folowing are the facts and deicion: The United States was held responsible for the death of a Mexican national whose body was discovered by a roadside soon after he had been taken into custody by deputy sheriff and three other men. As Quintanilla had been taken into custody by a State official, the State had to account for what happened to him. Whether the deputy W.A. No. 1271 of 2013 -: 38 :- sheriff or someone else had deliberately killed him, the State could not absolve itself from responsibility by ignoring what happened. In the above case claim was allowed on the ground that U.S. National was taken into custody by State official whose body was subsequently discovered by a roadside. State liability was upheld. The said case is clearly distinguishable and does not help the petitioner in the facts of the present case.

40. In U.S. v. Mexico (1926) (Neer' case) following are the facts and decision: A claim was presented on behalf of the widow and daughter of an American citizen who had been shot down by a group of armed men while working in Mexico. The Commission accepted that the local authorities could and should have acted in a more vigorous and effective way, particularly on the day following the incident. Indeed the agent of the State Attorney General and the State Governor, who proposed that the local judge should be removed from office, were obviously of the same W.A. No. 1271 of 2013 -: 39 :- opinion. However, in the view of the Commission, Mexico could not be active and more efficient course of procedure might have been pursued on the one hand, and holding that this record presents such a lack of diligence and of intelligent investigation as continues an international delinquency, on the other hand." Without attempting to lay down a precise formula, it was possible to hold that the treatment of an alien, in order to constitute such a delinquency, "should amount to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of governmental action as far short of international standards that every reasonable and impartial man would readily recognise its insufficiency. Whether the insufficiency proceeds from deficient execution of an intelligent law or from the fact that the laws of the country do not empower the authorities to measure up to international standards is immaterial.

41. Another case which is relevant to be considered is Janes claim (U.S v. Mexico (1926). Jane, W.A. No. 1271 of 2013 -: 40 :- an American National was working in Mexico who was killed by a man, viz., Fedro Crbajal, a former employee of Jane's company. The murder took place in view of several witnesses. In the said case following are the facts and decision: The local police Comisario, although informed of Janes' death within five minutes of the crime, delayed for half an hour in assembling a posse, and then insisted upon a further delay while horses were provided for his men by the mining company. The posse failed to apprehend Carbajal, although the latter had been on foot and remained for a week after the shooting within six miles of the nearby town. Later, when Carbajal moved to a place some seventy-five miles away, his whereabouts was communicated to the authorities in that area, but they also made no move to apprehend him. Later a reward was offered by the mining company, and a detachment of troops was sent to the town where Carbajal was reported to have been, but by then Carbajal had moved on. He was never arrested. The Commission were unanimous in holding that "there W.A. No. 1271 of 2013 -: 41 :- was clearly such a failure on the part of the Mexican authorities to take prompt and efficient action to apprehend the slayer as to warrant an award of indemnity.

42. In the above case it is relevant to refer to the opinion of the Commission as stated in paragraphs 17, 19 and 26, which is to the following effect:

"17. Carbajal, the person who killed Janes, was well known in the community where the killing took place. Numerous persons witnessed the deed. The slayer, after killing his victim, left on foot. There is evidence that a Mexican police magistrate was informed of the shooting within five minutes after it took place. The official records with regard to the action taken to apprehend and punish the slayer speak for themselves. Eight years have elapsed since the murder, and it does not appear from the records that Carbajal has been apprehended at this time. Our conclusions to the effect that the Mexican authorities did not take proper steps to apprehend and punish the slayer of Janes is based on the record before us consisting of evidence produced by both Governments.

19. ..At times international awards have held that, if a State shows serious lack of diligence in apprehending and/or punishing culprits, its liability is a derivative liability, assuming the character of some kind of complicity with the perpetrator himself and rendering the State responsible for the very consequences of the individual's misademeanor...The reasons upon which such W.A. No. 1271 of 2013 -: 42 :- finding of complicity is usually based in cases in which a Government would not possibly have prevented the crime, is that the non-punishment must be deemed to disclose some kind of approval of what has occurred, especially so if the Government has permitted the guilty parties to escape or has remitted the punishment by granting either pardon or amnesty.

26. Giving careful consideration to all elements involved, the Commission holds that an amount $12,000, without interest, is not excessive as satisfaction for the personal damage caused the claimants by the non-apprehension and non-punishment of the murderer of Janes."

43. In Janes case there was sufficient ground to hold the Mexico authorities were liable for their inaction in apprehending and punishing the wrong doer. The damages were allowed due to Government's negligence. Present is not a case where any such lapse can be imputed on the KSA. Here the death occurred due to an explosion of an explosive which was kept in a can on the road side garbage and the petitioner's husband who was passing by the roadside street was the victim to the explosion. The claim in Janes case was on its own facts and does not help the petitioner to establish her claim. Furthermore, above three cases were decided by W.A. No. 1271 of 2013 -: 43 :- International Commission/Arbitrators as consented by bnoth the countries involved for decision.

44. From the above discussion, it is clear that International Law recognized both direct International wrong and indirect International wrong. The present being not a case of direct International wrong committed by a foreign State, claim has been stated to be covered under the heading "indirect International wrong". Indirect International wrong can include a situation where National of A State caused injuries to the National of State B. States responsibility can be fastened only when there are circumstances of the State being involved in causing injury to a foreign National. The State liability has not to be readily inferred unless there are materials to show.

45. There is one more aspect of the matter. Any claim for compensation can always be laid according to the municipal law of the Country where cause of action arose. Greigh while considering indirect International wrong in "Chapter X" has referred to a W.A. No. 1271 of 2013 -: 44 :- principle, viz., exhaustion of legal remedies. It is useful to extract the principle as stated in the following words:

""It is a well-established principle of international law that a state cannot succeed in a claim on behalf of its national before an international tribunal unless all the remedies available under the local law have been tried and found wanting. However, while this general proposition of the rule, and from the reasons behind it, are capable of being resolved by reference to such a proposition."

In the present case it is clear that although the Emabassy of India, Riyadh, KSA had taken the claim of the petitioner with the Ministry of Foreign Affairs, KSA, no relief could be obtained diplomatically. It is true that in all cases it is not necessary that a claim under local laws be raised. But the aforesaid principle is also a principle while considering a State to raise a claim before the International Court of Justice. There is one more aspect of the matter which needs consideration. As per the Statute of International Court of Justice it is the State which can be a party to the dispute raised before the W.A. No. 1271 of 2013 -: 45 :- International Court of Justice. Article 34(1) as noted above provides "only States may be parties in the case before the Court." The decision as to whether a particular claim is to be raised in the International Court of Justice is primarily in the discretion of the State. Strake in his International Law while discussing State's responsibility under Chapter X noted that State practice shows that most States regard sponsoring of the claim is entirely within their discretion. The following is stated by Strake in this context:

"Sometimes it is expressed that this right corresponds to an administrative duty of the state towards such of its nationals as have suffered injury. But state practice (for example, of the Department of State of the United Stats) shows that most states regard the sponsoring of claims by nationals as entirely within their discretion.."

46. The petitioner in the writ petition has prayed for a mandamus directing the Union of India to raise a claim in the International Court of Justice for death compensation on account of the death of petitioner's W.A. No. 1271 of 2013 -: 46 :- husband on 18.05.1985. In the present case the petitioner in the Writ Petition had claimed Rs.10 lakhs from the respondents and under the orders of the learned Single Judge, petitioner has received compensation of Rs.6,00,000/- as noted above.

47. In view of the foregoing discussion, we are of the opinion that present is not a case where petitioner has made out a case for issuing a writ of mandamus to the Government of India to raise the claim before the International Court of Justice.

In the result, the Writ Appeal is dismissed.

ASHOK BHUSHAN, CHIEF JUSTICE.

A.M. SHAFFIQUE, JUDGE.

vsv

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