United Nations Organization Not A State Under Article 12 Of The Constitution: Delhi HC [Read Judgment]

The Delhi High Court on May 15, 2019, in the case of Sanjaya Bahel v. Union of India & Others has observed that United Nations Organization (UNO) is not a "State" within the meaning of Article 12 of the Constitution of India and is not amenable to the jurisdiction of the Court under Article 226 of the Constitution.

A single-judge Bench of JusticeSuresh Kumar Kait was hearing a petition concerning the immunity enjoyed by the UNO under the United Nations (Privileges and Immunities) Act, 1947.

The petition was filed by a former UNO employee who was found guilty of misconduct pursuant to the findings of a Procurement Task Force. In 2007, the US Federal Court convicted the petitioner in the trial and sentenced him to 97 months of imprisonment and 2 years of mandatory probation.

In November 2018, the petitioner wrote to Ministry of External Affairs, New Delhi, seeking grant of permission to initiate legal action against respondents' under Section 86 of Civil Procedure Code, 1908. In its reply, the Ministry stated that the consent of Government of India is not required to initiate a legal suit against the respondent as it is not a foreign state and is only an Internal Organization of UNO. It also said that respondent and its officials enjoy immunity under the United Nations (Privileges and Immunities) Act, 1947.

Arguing on the maintainability of the said petition, the counsel for the petitioner submitted before the court that the Latin maxim Ubi jus ibi remedium which means that if there is a right, then there must necessarily be a remedy attached to it is a settled law that no one should be left remediless and the petitioner has exhausted all his remedies and has made all possible efforts to invoke the prescribed provisions for appeal on due process.

He argued that Section 2 of Article II of the Schedule of the Act, 1947 which gives blanket immunity to respondent no.2 to waive its immunity is something which makes respondent no.2 a judge in its own cause and, therefore, against the basic tenets of justice delivery system. No immunity is or can be infallible or absolute under all circumstances, the counsel said.

Further, the counsel submitted that the petitioner is not seeking any relief for which the respondent no. 2 has to invoke the immunity granted to it under the Act, 1947. Rather the petitioner is seeking to invoke the writ jurisdiction of this Court for the purpose of non-adherence of the due process (Rule 110.4 of the Staff rules (ST/SGB/2002/1) which the respondent nos.2 and 3 were bound to follow in order to ensure free and fair disciplinary process of the petitioner who was a serving officer with respondent no.2.

After hearing both the parties, the court observed that the United Nations, its property and assets wherever located and by whomsoever held, enjoy immunity from every form of legal process except insofar as any particular case wherein it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.

The Court said that a writ under Article 226 lies only when a petitioner establishes that his or her fundamental right or some other legal right has been infringed. The claim as made by the petitioner would not be maintainable against respondent no.2 unless the said respondent is a State or other authority within the meaning of Article 12 of the Constitution of India.

Relying on a decision of the High Court inHindustan Engineering & General Mazdoor Union (Regd) & Ors. v. Union of India & Ors (2000), the Court said that “I am of the considered opinion that United Nations is not a State under Article 12 of the Constitution of India and is not amenable to the jurisdiction of this Court under Article 226 of the Constitution of India. Thus the present petition is not maintainable and is, accordingly, dismissed with no order as to costs.”

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