Section 86 CPC - Suits Against Foreign States, Rulers, Ambassadors and Envoys

Section 86 of the Code of Civil Procedure, 1908 regulates civil suits against foreign States and specified diplomatic representatives in India. It generally requires the Central Government's written consent, protects foreign-State property from execution without consent, and restricts arrest of designated persons.

Section 86 CPC: meaning and subsection-by-subsection explanation

Section 86(1): Prior written consent to sue a foreign State

A foreign State cannot ordinarily be sued in an otherwise competent Indian court without the consent of the Central Government, certified in writing by a Secretary to that Government. The provision contains a specific exception: a person may sue a foreign State without that consent in the person's capacity as a tenant of immovable property held, or claimed to be held, from that foreign State.

The exception is confined to the statutory circumstances. The plaintiff must still establish jurisdiction, a cause of action and any other applicable procedural requirements.

Section 86(2): Grounds and scope of Government consent

Consent may relate to one specified suit, several specified suits or suits of a specified class or classes. It may also identify the court in which the foreign State may be sued. The Central Government may grant consent only if it appears that the foreign State:

1. Has itself sued the applicant: The foreign State instituted a suit in the court against the person seeking consent.
2. Trades within the court's local jurisdiction: The foreign State carries on trade there, itself or through another.
3. Holds relevant immovable property: It possesses immovable property within the jurisdiction, and the proposed suit concerns that property or money charged on it.
4. Has waived the privilege: The foreign State has expressly or impliedly waived the privilege conferred by Section 86.

These are statutory grounds for considering consent, not an automatic right to approval. Whether the foreign State's conduct constitutes waiver or trade requires assessment of the facts and applicable judicial decisions.

Section 86(3): Execution against foreign-State property

No decree may be executed against the property of a foreign State without the Central Government's consent certified in writing by a Secretary. Thus, obtaining a decree does not itself authorise attachment, sale or another execution step against protected property.

Section 86(4): Persons covered by the preceding protections

The protections in the preceding subsections also apply, as provided by the statute, to:

• Any Ruler of a foreign State;
• Any Ambassador or Envoy of a foreign State;
• Any High Commissioner of a Commonwealth country; and
• Specified members of the staff of a foreign State or the staff or retinue of an Ambassador, Envoy or High Commissioner, where designated by a general or special Central Government order.

Coverage of a particular staff member must not be assumed without checking the relevant governmental designation and applicable law.

Section 86(5): Protection against arrest under the CPC

The following persons are not to be arrested under the Code of Civil Procedure: foreign Rulers; foreign Ambassadors or Envoys; Commonwealth High Commissioners; and such specified staff or retinue members as the Central Government designates by general or special order. This is a civil-procedure rule; it should not be confused with a blanket statement about every kind of legal proceeding.

Section 86(6): Opportunity of hearing before refusal

Before refusing a request for consent under subsection (1), wholly or partly, the Central Government must give the applicant a reasonable opportunity of being heard. This procedural safeguard applies to refusal of the consent request.

Important legal terms

• Foreign State: A State outside India; consult Section 87A CPC for the statutory definition used in this part of the Code.
• Immunity from suit: A procedural protection restricting when proceedings can be brought against specified foreign entities or persons.
• Consent certified in writing: The written certification by a Secretary to the Central Government required under Section 86.
• Execution of decree: The legal process used to enforce a court's decree, which is separately restricted under Section 86(3).
• Waiver: Conduct or a statement amounting to relinquishment of a legal privilege, assessed in its legal context.

Practical steps for a proposed civil claim

1. Identify the proposed defendant: Determine whether the party is a foreign State or another person covered by Section 86(4).
2. Check the claim and jurisdiction: Identify the civil right asserted, competent court and any applicable limitation period.
3. Consider the tenant exception: Assess whether Section 86(1)'s specific immovable-property tenancy exception genuinely applies.
4. Prepare a consent request where required: Set out the proposed claim, parties, jurisdiction and facts relevant to the grounds listed in Section 86(2).
5. Preserve the written decision: Confirm whether the consent is certified in writing and whether it is limited to particular suits or courts.
6. Assess execution separately: If enforcement against foreign-State property is contemplated, consider the distinct written-consent rule under Section 86(3).

Example: A commercial claimant wishes to sue a foreign State over a transaction allegedly carried out through an office in India. The claimant should examine whether the State trades within the proposed court's jurisdiction and, unless an applicable exception exists, seek the required Central Government consent before filing. Even if the claimant obtains a decree, execution against foreign-State property involves a separate consent requirement.

Related CPC sections and official legal sources

• Section 84 CPC - When foreign States may institute suits.
• Section 85 CPC - Government appointment of persons to represent foreign Rulers.
• Section 87 CPC - Style of foreign Rulers as parties to suits.
• Section 87A CPC - Definitions of foreign State and Ruler.
• Section 87B CPC - Application of Sections 85 and 86 to certain former Indian State Rulers, subject to its terms.
• India Code (official legislative repository) - Search for the Code of Civil Procedure, 1908, Act 5 of 1908, and check the latest text and amendments.
• Legislative Department, Government of India - Official legislative resources.

Other potentially applicable rules, including the Diplomatic Relations (Vienna Convention) Act, 1972 and applicable international-law principles, should be considered separately. Section 86 does not by itself resolve every question of diplomatic immunity.

Frequently asked questions

Can an Indian citizen sue a foreign State in India?

Section 86(1) generally requires the Central Government's written, certified consent before the suit, subject to its specific tenant exception and any other applicable law.

Is Government consent always necessary for a tenant's suit?

Section 86(1) expressly permits a person suing as a tenant of immovable property held or claimed from a foreign State to sue without that consent. The suit must still be otherwise maintainable.

Can a decree against a foreign State be enforced immediately?

Not against foreign-State property without the separately required consent under Section 86(3).

Must an applicant be heard before consent is refused?

Yes. Section 86(6) requires a reasonable opportunity of being heard before a request under subsection (1) is refused in whole or in part.

This article provides general legal information, not advice on any particular dispute. Verify the operative statutory text, government orders, judicial decisions and relevant treaty or diplomatic rules before taking action.