Report No. 69
III. Provision in the Code of Civil Procedure as to Recognition of Foreign States
22.6. Section 87(2), Code of Civil Procedure-Recognition of foreign States.-
There are some statutory provisions in India which may be noted. In the Code of Civil Procedure,1 a specific provision is found in section 87A(2) on the subject of recognition of foreign States, in these terms-
"87A. (2) Every court shall take judicial notice of the fact-
(a) that a State has or has not been recognised by the Central Government;
(b) that a person has or has not been recognised by the Central Government to be the head of a State."
The normal practice is to consult the Government of India in such matters. The question of recognition of a foreign state came up before the Bombay High Court2 a few years ago. The plaintiff company-the Dyn Industrial Undertaking Ltd-was carrying on business in fertilisers. It entered into some contracts with the defendant-the German Democratic Republic-for the sale and supply of certain goods to the Republic. The plaintiff filed a civil suit on 5th June, 1969, for a sum of Rs. 20 lacs, being the balance of the price of the goods supplied to the defendant.
One of the pleas taken by the defendant was, that the defendant was a sovereign independent State. As the suit was filed without the prior consent of the Government of India as contemplated by section 86 of the Code of Civil Procedure, 1908, the suit was liable to be dismissed. In this connection, one of the questions which arose for the consideration of the Court, was whether the German Democratic Republic was recognised by the Government of India. The High Court decided the point in favour of the defendant, and enunciated the following principle of law:-
"It is not for the court to pronounce any opinion on the point whether the Government of India has recognised a foreign Government as a sovereign State. The court has to ascertain this fact on the information made available to it by the Government of India, and for that purpose, necessary evidence can be allowed to be adduced even at the stage of appeal."
1. Section 87A(2), Code of Civil Procedure, 1908.
2. The German Democratic Republic v. The Dynam Industrial Undertaking Ltd., (1971) 73 Born 1183.
IV. Other Provisions in Indian Statute Law
22.7. Question of foreign jurisdiction.-
It should be noted that section 97A(2) if the Code of Civil Procedure, 1908, to which we have referred above1 is not the only procedural provision concerning foreign relations. There are other situations in which a court may take judicial notice of international facts, or in regard to which special statutory procedural provisions may apply. For example, section 6 of the Foreign Jurisdiction Act of 1947, enacts2
"6(1). If in any proceeding, civil or criminal, in a court established in India or by the authority of the Central Government outside India, any question arises as to the existence or extent of any foreign jurisdiction of the Central Government, the Secretary to the Government of India in the appropriate department shall, on the application of the court, send to the court the decision of the Central Government on the question, and that decision shall for the purpose of the proceeding, be final.
"(2) The court shall send to the said secretary, in a document under the seal of the court or signed by a judge of the court, questions framed so as properly to raise the question, and sufficient answers to those questions shall be returned to the court by the Secretary and those answers shall on production thereof, be conclusive evidence of the matters therein contained."
1. Para. 22.6, supra.
2. Section 6, Foreign Jurisdiction Act, 1947, (previously entitled. "Extra Provincial Jurisdiction Act").
22.8. Reference may now be made to judicial approach on the subject. In Case law. Hardeodas Jagannath v. State of Assam, AIR 1970 SC 724: (1969) 2 SCR 259 (267), the court sought an executive certificate as to two matters:
(1) whether the Dominion of India exercised extra provincial jurisdiction over certain territories on 15th April, 1948, and
(2) whether the Dominion of India had extra-provincial jurisdiction on that date to extend the Assam Sales Tax Act, 1947 to that territory. In view of the insufficiency of material, the court thought it proper to avail itself of the procedure indicated by the Foreign Jurisdiction Act.
22.9. Other points.-
Besides such provisions, there may be other questions on which a certificate can be sought from the Government. It is not our intention to enumerate all these questions exhaustively. But we may mention that the Supreme Court, in one case,1 consulted the Central Government where the question was whether Pondicherry was an acquired territory of India within the meaning of Article 1(3)(c) of the Constitution. As to immunity claimed by a person on the ground that he is a diplomatic representative, a Central Act2 makes the view of the Central Government, as communicated by the Secretary to Government in the Ministry of External Affairs, conclusive proof.
1. N. Masthan Sahib v. Chief Commissioner, AIR 1962 SC 797: (1962) 1 Supp SCR 981 (993).
2. Section 9, Diplomatic Relations etc. Act, 1972 (43 of 1972).