Lawsuit Against Modi in US Court Over Kashmir Decision Unlikely to Go Far

The lawsuit was filed by a pair of unnamed US-based Kashmiris.

New Delhi: Just ahead of his visit to US, a Texas-based federal court has issued a summons to Prime Minister Narendra Modi for his government’s decision to change the constitutional status of Jammu and Kashmir and also alleged human rights abuses in the state in its aftermath.

This is the second time that Modi’s US sojourn has triggered the filing of a lawsuit. A federal court had similarly summoned Modi in September 2014, but the lawsuit was subsequently dismissed in January 2015.

The lawsuit, according to the Houston Chronicle, was filed by a pair of unnamed US-based Kashmiris. The newspaper identified their attorney as Gurpatwant Singh Pannu of Kashmir Khalistan Referendum Front. Pannu is largely known to Indian officials as the legal head for ‘Sikhs for Justice’ (SFJ), which was banned by the Indian government in July this year.

The 73-page legal document is filed under the Torture Victim Protection Act of 1991, that allows for civil suits in US courts against foreign officials. Even the 2014 lawsuit was filed under TVPA and Alien Tort Claims Act.

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Besides Modi, the lawsuit also names home minister Amit Shah and the general officer commanding of the Srinagar-based 15 Corps, Lieutenant Kanwal Jeet Singh Dhillon. They have been accused of “extrajudicial killing” and “wrongful death, battery, emotional distress, crimes against humanity”.

The Texas federal court has been chosen as Modi will be landing first in Houston, where he is scheduled to address a large Indian-American gathering, “Howdy Modi” at the NRG Stadium. US President Donald Trump is also scheduled to make an appearance with Modi at the event.

Pannu was quoted by Houston Chronicle as saying they would attempt to serve the court summons to Modi before he left Houston. However, with Modi and Trump expected to be under a heavy security blanket, it is extremely unlikely that a process server will get near the Indian prime minister. The next attempt, according to Pannu, will be made in New York when Modi is scheduled to get an award from the Bill and Melinda Gates Foundation.

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Not only is Modi unlikely to be served the summons physically, but a US federal court is highly unlikely to sustain the lawsuit, unless there is approval from the State department. 

On January 14, 2015, the US district court for the Southern District of New York had dismissed the lawsuit against Modi for his alleged role in Gujarat riots “in light of the determination by the Executive Branch that Prime Minister Modi is entitled to immunity as the sitting head of a foreign government, he is immune from the jurisdiction of this Court in this suit.”

So far, no US courts have ruled against the immunity from prosecution of a sitting head of state once it is recognised by the executive branch of government.

Rather, there have been a host of lawsuits that have been dismissed against sitting foreign leaders, ranging from then Zimbabwe President, Robert Mugabe, to Sri Lankan leader Mahinda Rajapaksa and Myanmar President Thein Sein.

Explaining the reasoning for the executive branch’s position in the 2016 lawsuit against Thein Sein, then US attorney Preet Bharara had noted that the determination by the administration is “controlling” and “not subject to judicial review”. The US Supreme Court has also recognised “that the courts of the United States are bound by Suggestions of Immunity submitted by the Executive Branch”.