National Security Advisor (NSA) Ajit Doval was conspicuous by his absence in Prime Minister Narendra Modi's entourage during the latter's recently concluded trip to the US.
While officials told The Hindu that Doval stayed back in India to deal with the security situation in Jammu and Kashmir due to the ongoing elections, speculations have been raised that his absence has to do with a summons issued to him by the US District Court for the Southern District of New York.
Sikhs for Justice (SFJ) leader and Khalistani extremist Gurpatwant Singh Pannun had on 17 September sued the Indian government, NSA Doval, former Research and Analysis Wing (RAW) chief Samant Goel, and a few others over an alleged assassination plot against him in New York last year.
In the civil complaint, which has been accessed by The Quint, Pannun states that he is undergoing "severe emotional distress", and harbours fears of an assault on him. He has also stated that the defendants must compensate him for the "damages" caused.
The Ministry of External Affairs (MEA) had, however, dismissed the allegations as being "unwarranted and unsubstantiated", further highlighting that Pannun has been declared a terrorist under the Unlawful Activities Prevention Act (UAPA).
Legal Basis of Pannun's Complaint
While the jury is still out on how the civil lawsuit will proceed, the summons against Doval and the Indian government raises several pertinent questions.
1. If the Indian government refuses to file a reply to Pannun's complaint, what is the worst that could happen?
According to US law, the party against whom a complaint has been filed (in this case, the Indian government) has to respond within 21 days. If they do not do so, that would entail a "default" judgment.
"In case of a default on the part of the defendants, the court will state that the erring party has admitted that they are liable to the charges brought against them," Anandhi Rajan, a US-based based civil litigator with over 30 years of experience, said while speaking to The Quint.
In such a situation, the worst that could happen is that a trial would be brought before the defendants on damages, i.e., a trial to show how the plaintiff (Pannun) has been "damaged" because of the alleged assault and infliction of emotional distress.
"Pannun doesn't have to prove that the Indian government is liable; he just has to prove that it is necessary for them to pay him – that's what happens when you go into default," Rajan said, adding, "For instance, he may say that has had to visit the psychiatrist several times or that he is afraid of going out of his house."
If the jury finds his testimony credible, they can pronounce a judgment stating that Pannun should be paid a certain amount of money in damages by the Indian government. In case the government does not pay up, he can also try and collect the money through the government's assets in the US.
2. Why has Pannun brought a civil and not a criminal case against India?
Another question that has arisen in connection with the lawsuit is that since the allegations are that of an alleged assassination plot against him, why hasn't Pannun brought a criminal case against the Indian government?
This is because an individual cannot initiate criminal proceedings against anybody on their own. Any criminal prosecution has to come from law enforcement. In order to initiate a criminal case, an individual would have to go to the police and say that somebody tried to assault/kill them. Then the authorities would investigate and see if they have enough evidence to go forward with arrests – which is called "probable cause".
"You have to have enough probable cause to be able to go to a judge and ask them to issue an arrest warrant. If you don't have enough evidence proving criminality, a criminal case cannot go forward," Rajan said.
Hence, it is possible that there wasn't enough evidence yet for a criminal lawsuit against the Indian government. But then what was the need for a civil lawsuit?
"Sometimes plaintiffs initiate civil proceedings while waiting for more evidence. First, the intention is to bug the defendants, and then go into discovering information during the civil trial that could support a criminal indictment later. It's a ploy to force the defendants to spit out information regarding what went on."Anandhi Rajan
3. Can foreign officials be protected from prosecution/arrest due to diplomatic immunity?
Yet another aspect of this case is whether Doval could have faced some kind of action if he were to step on to US soil – fears that could explain his absence during PM Modi's recent visit to Delaware for the Quad summit. Also considering that Doval has been a part of most if not all the foreign trips made by the prime minister.
The Foreign Sovereign Immunities Act of 1976 is a US Act that delineates the primary means for bringing a lawsuit against a foreign country or its agencies. Under the Act, foreign states have "immunity" from litigation, which may extend to government officials as well – in this case, Doval.
However, there are a few exceptions in this Act which can allow for prosecution against a foreign state and its representatives. According to the Cornell University Law School's Legal Information Institute, these include:
Money damages sought against a foreign state for personal injury, death or damage to or loss of property caused by its tortious act or omission, occurring in the United States.
Money damages sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking or their support, if the foreign state is a designated sponsor of terrorism.
Commercial activities by a foreign state in or directly affecting the United States.
Hence, since Pannun's lawsuit includes allegations of personal injury in the form of assault against the Indian government and Doval, could the NSA have been arrested in the US?
The answer is still no because the case against Doval is a civil one and not a criminal case.
What if it were a criminal case? Could he have been arrested then? Theoretically, yes.
"If US law enforcement is able to find a loophole in diplomatic immunity, and given that there is a criminal case against a representative of a foreign nation, then he can be arrested if he steps foot in the US. But when it comes to a civil case, nobody can arrest him or compel him to go to court," Rajan said.
4. Previous US court summons to Indian officials and why this case is different?
While the current case has drawn a lot of attention, US courts summoning Indian government officials is not unprecedented. In fact, a large number of summons has been made out on the complaints of Pannun and his SFJ itself.
A Washington federal court had issued summons against the then Indian prime minister Manmohan Singh in April 2013 following a lawsuit by the SFJ, alleging that he was responsible for "funding crimes against humanity perpetrated upon the Sikh community in India".
Congress leader Sonia Gandhi was summoned to a US court in 2016 in connection with the 1984 anti-Sikh riots. Once again, the complainant in the case was the SFJ. The Congress' Kamal Nath was also subject to a subpoena in 2010 in the same case.
More recently, Prime Minister Narendra Modi was summoned by a New York court in 2014 just ahead of his first state visit to the US following a nine-year visa ban. The case, filed by non-profit American Justice Center (AJC), had been made out in connection with the 2002 Gujarat riots.
PM Modi and Home Minister Amit Shah had also been summoned by a Texas court in 2019 over Parliament's decision to abrogate Article 370, which led to the downgrading of special privileges accorded to Jammu and Kashmir. The plaintiff, an organisation called Kashmir Khalistan Referendum Front, had sued the duo for $100 million but the case was subsequently dropped.
Given that Pannun and the SFJ have time and again sued Indian government officials over the years, with most of the cases eventually getting quashed, it is possible that the recent case is a publicity stunt.
However, the pivotal difference between all the previous cases and the recent lawsuit by Pannun is that the previous summons were issued in connection with incidents that transpired outside the jurisdiction of the US. Given that the alleged plot against Pannun took root in New York, that itself could lead to a lengthy trial.
The lawsuit also comes in the backdrop of the introduction of the Transnational Repression Reporting Act of 2024 in the US Congress on 19 September which aims to hold foreign states responsible for "repressive actions" against individuals on US soil. The Act particularly names India, among others.
Also, in a first, White House officials had conducted a meeting with US-based Sikh organisations close on the heels of PM Modi's visit, assuring them of protection against alleged "transnational acts of aggression".
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