An interesting off shoot emerges in diplomat Devyani Khobragade’s case. On September 20, the Delhi High Court had issued an exparte anti-suit injunction restraining her former maid Sangeeta Richard and her husband Phillip Richard from “initiating any action or proceeding or filing any suit or claims” against Devyani in any Court/Tribunal/Forum in any country outside India arising out of or in connection with the employment of the maid. This class of litigation in the realm of conflicts of laws under private international law, by legal parlance, is labelled as an “Anti-suit injunction” and gives rise to an order issued by a Competent Court in India that prevents an offending party from commencing or continuing a proceeding in another jurisdiction or foreign forum. The Foreign Court cannot be and is not restrained in such process as Indian Courts cannot injunct a foreign court. However, if the opposing party contravenes such an order, a Contempt of Court may be issued by the domestic Indian Court against the offending party located in the foreign jurisdiction. Not very often invoked, anti-suit injunctions, are preferred in personal actions of matrimonial causes besides commercial matters and may be used to prevent forum shopping or checking oppressive and vexatious litigation in overseas jurisdictions to avoid conflicting judgments. Most often, its actual success is difficult. Regardless, it is a developing jurisprudence in a country with a 30 million diaspora in 180 countries over the globe contributing immensely to cross border litigations.
DIPLOMAT’S CASE
Undoubtedly, the matter related to employment issues between the parties and was an ex-parte interim injunction. However, upon the matter being heard again on December 13, it is reported that the Delhi High Court was informed that the notice sent by the Court had not been served on Sangeeta in USA. Her husband who was served did not put in appearance and was proceeded exparte. Accordingly, the Delhi High Court again ordered that the Court’s summons be served upon Sangeeta afresh by an approved courier and through ordinary process. Momentarily, the matter rests there as of now till February 05, 2014. Meanwhile, Devyani Khobragade had already been arrested in USA on December 12, creating a diplomatic furore with cross allegations of human rights violations and domestic abuse charges.
Earlier, when the Delhi High Court was seized of the matter in September in the application for interim injunction, it was observed that Devyani posted as Deputy Consul General, Consulate General of India, New York, USA, had employed Sangeeta as a domestic help to take her to USA as India Based Domestic Assistant (IBDA,) which is a facility provided by the Government of India to diplomats serving abroad. A contract dated November 23, 2013 was executed at New Delhi between them whereby Sangeeta was to work only for Devyani in USA and was to return to India promptly upon leaving this employment. Sangeeta proceeded to USA with Devyani on an air ticket given by the Government of India. Reportedly, Sangeeta is stated to have left Devyani’s household in USA on June 21, 2013 and had not returned.
PREVIOUS PENDING MATTER IN DELHI HIGH COURT
Whilst granting the anti-suit injunction in Devyani’s case, the Delhi High Court placed reliance on a previous order of March 14, 2012 passed by it in another pending anti- suit injunction titled Union of India and Others Vs. Shanti Gurung and Others, whose facts were said to be somewhat akin to Devyani’s case. In the previous pending matter, another employee i.e. Shanti was employed as a service staff member under the IBDA and was given a visa by the US Embassy to accompany a career Indian diplomat working on a official full time assignment in USA from 2006 to 2009. Reportedly, Shanti is said to have disappeared from the apartment of the diplomat in 2009 in USA and whereafter an official notification of which was made to the US authorities leading to official revocation of her passport by the Government of India.
The Delhi High Court order of March 14, 2012, in a anti-suit injunction, by the Diplomat and the Union of India, also records that Shanti filed a complaint in the United States District Court, Southern District, New York alleging mal-treatment, forced labour, trafficking, failure to pay wages etc., by the Indian diplomat and to which the Government of India responded in USA objecting to the jurisdiction of US Courts to try the said matter as also raising pleas of invalid service. Regardless, the US Court allowed the motion for default judgment on February 22, 2012 in favour of Shanti and against the diplomat awarding USD 1,458,335 in her favour. A period of 14 days from the service of this judgment was granted to file objections before the US Court.
CONTENTITIOUS CLAIMS
It was averred before the Delhi High Court in the anti- suit injunction to restrain Shanti from pursuing further proceedings in the US Court, that the diplomat and the employee both being Indian citizens in employment of the Union of India, they would be governed by domestic laws of India. Furnishing proof of payments to Shanti in India at a bank in New Delhi, the Delhi High Court observed that it cannot be prima facie conceived that she was trafficked or kidnapped from India. It was also urged that the Courts in United States had no jurisdiction to pass orders against an Indian diplomat posted officially for an assignment in the US on account of sovereign immunity for which reliance was placed on the Hague Service Convention and The Vienna Convention on Consular Relations. It was agitated before The Delhi High Court that if the US default judgment awarding damages was finally decreed, it would “seriously interfere with judicial sovereignty of India besides the same being in violation of the Vienna Convention, The Hague Convention and The Foreign Service Immunity Act, 1976.
OBSERVATIONS AND INJUNCTIONS OF THE COURT
The Delhi High Court in its anti- suit injunction order of March 14, 2012, without expressing any views on the truthfulness of the allegations levelled by Shanti leading to the passing of US default judgment, observed that it was incomprehensible as to why no complaint was made by Shanti till July 2010 specially when she had visited India with the diplomat on vacation in January 2007. The Court found force with the contentions that any order passed by the US Courts would tantamount to interfering in the right of Government of India to determine the terms and conditions of the employment of its diplomatic officers posted abroad including terms by and under which assistants are provided to such diplomats. Furthermore, for any alleged ill-treatment by any employee, the US Courts would have no jurisdiction and the remedy would lie with the Indian Courts as per the Standard agreement between the diplomatic agents and their domestic servants. Applying the tripartite test of prima facie case, balance of convenience and irreparable loss and injury, on March 14, 2012, the Delhi High Court granted an ex-parte anti- suit injunction against Shanti and others from pursuing their complaint or relying upon the default US Judgment to get a final judgment or proceed to enforce the same. Reportedly, the anti-suit injunction in Delhi High Court, where all parties are represented by counsel, is continuing and the matter is pending for February 5, 2014 as also, the Decree of the US Court is stated to still not have been executed.
CONCLUSION
Issues relating to applicability of Indian law in cases such as cited above and the authority of Indian Courts to adjudicate such disputes executed in India between employees and diplomats as also norms of judicial comity requires serious deliberation to avoid conflict of jurisdictions. Personal disputes originating on Indian soil must be determined in India. Anti-Suit Injunctions are perhaps the only answer if there is an impending risk of conflicting judgments and if the proceedings in the court of foreign jurisdiction would perpetuate injustice or usurp the jurisdiction of a domestic Court. A blind eye cannot overlook vexatious or oppressive litigation. Thereafter, violation of an anti-suit injunction passed against an offending party should be seriously pursued in contempt jurisdiction. Surely, Indian Law must come to rescue. The yeoman verdicts of Indian Courts are a big crutch. However, the need for a preventive remedy is stronger than a powerful cure at the end. What can be prevented must be stopped. What should not be suffered should not be endured. Anti suit injunctions in such matters in fit cases must deter oppressive foreign Court orders without technicalities. The majesty of Indian law must prevail.
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