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CPC, 1908 — Section 86: Suits against foreign Rulers, Ambassadors and Envoys

🗺 Part IV · Suits in Particular Cases — Map (§§79–88 overview) ↗
CPC, 1908 · Part IV · Suits in Particular Cases · Sovereign & diplomatic immunity

Section 86 — Suits against foreign Rulers, Ambassadors and Envoys

A foreign State — and its Ruler, Ambassadors, Envoys and specified staff — cannot be sued in an Indian court without the Central Government’s written consent. Consent comes only on limited grounds; even a decree cannot be executed against a foreign State’s property without it; and these persons cannot be arrested at all. This is sovereign immunity in statutory form.

§ 86

How to read Section 86

The immunity

No foreign State may be sued in a competent court except with the Central Government’s consent, certified in writing by a Secretary — the statutory face of sovereign immunity.

When consent comes

Consent is given only on limited grounds — the State sued first, trades here, holds property here, or waived immunity (sub-s. 2). And no decree is executed against its property without consent (sub-s. 3).

Persons & fairness

The shield covers foreign Rulers, Ambassadors, Envoys, Commonwealth High Commissioners and specified staff (4) — who also cannot be arrested (5); and the Government must hear an applicant before refusing consent (6).

The bare Act

Section 86 · verbatim

(1) No 1*** foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government:

Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid 2a foreign State from whom he holds or claims to hold the property.

(2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which 3the foreign State may be sued, but it shall not be given, unless it appears to the Central Government that 3the foreign State—

(a) has instituted a suit in the Court against the person desiring to sue 4it, or
(b) by 5itself or another, trades within the local limits of the jurisdiction of the Court, or
(c) is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon, or
(d) has expressly or impliedly waived the privilege accorded to 4it by this section.

6(3) Except with the consent of the Central Government, certified in writing by a Secretary to that Government, no decree shall be executed against the property of any foreign State.

(4) The preceding provisions of this section shall apply in relation to—

7(a) any Ruler of a foreign State;
8(aa) any Ambassador or Envoy of a foreign State;
(b) any High Commissioner of a Commonwealth country; and
(c) any such member of the staff 9of the foreign State or the staff or retinue of the Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in this behalf,

10as they apply in relation to a foreign State.

11(5) The following persons shall not be arrested under this Code, namely:—

(a) any Ruler of a foreign State;
(b) any Ambassador or Envoy of a foreign State;
(c) any High Commissioner of a Commonwealth country;
(d) any such member of the staff of the foreign State or the staff or retinue of the Ruler, Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country, as the Central Government may, by general or special order, specify in this behalf.

(6) Where a request is made to the Central Government for the grant of any consent referred to in sub-section (1), the Central Government shall, before refusing to accede to the request in whole or in part, give to the person making the request a reasonable opportunity of being heard.

Amendment notes — all by Act 104 of 1976, s. 29 (w.e.f. 1-2-1977)

1. Words “Ruler of a” omitted.   2. “a foreign State” subs. for “a Ruler”.   3. “the foreign State” subs. for “the Ruler”.   4. “it” subs. for “him”.   5. “itself” subs. for “himself”.   6. Sub-section (3) substituted.   7. Clause (a) inserted.   8. Old clause (a) re-lettered as (aa).   9. Words subs. for “or retinue of the Ruler, Ambassador”.   10. Subs. for “as they apply in relation to the Ruler of a foreign State”.   11. Sub-sections (5) and (6) inserted.

Key terms decoded

Sovereign immunity

The principle that one sovereign is not subject to the courts of another — par in parem non habet imperium (an equal has no authority over an equal). § 86 gives it statutory shape.

Foreign State

A State outside India recognised as such by the Central Government (§ 87A). Since 1976 the section speaks of the foreign State rather than its “Ruler”.

Consent of the Central Government

The key that unlocks a suit — it must be certified in writing by a Secretary to the Government. Without it, no suit lies.

Tenant proviso

The one exception that needs no consent: a tenant may sue the foreign State from whom he holds (or claims to hold) the very property.

The four grounds (sub-s. 2)

Consent is given only if the State sued first (a), trades here (b), holds property here and is sued about it (c), or has waived immunity (d) — restrictive immunity.

Waiver of privilege

The immunity may be given up expressly or impliedly — e.g. by conduct submitting to the court.

Execution bar (sub-s. 3)

Immunity outlives judgment: no decree is executed against a foreign State’s property without the same written consent.

No arrest (sub-s. 5)

Rulers, Ambassadors, Envoys, Commonwealth High Commissioners and specified staff cannot be arrested under the Code — an absolute bar, with no consent route.

Reasonable opportunity of being heard (sub-s. 6)

Before refusing consent, wholly or in part, the Government must give the applicant a fair hearing — added in 1976.

The picture — the immunity shield

A SUIT · §86(1) EXECUTION · §86(3) ARREST · §86(5) ✗ FOREIGN STATE + its Ruler, Ambassadors, Envoys, High Commissioner, specified staff (4) = IMMUNE KEY = Central-Govt written consent (by a Secretary) opens a SUIT & EXECUTION — but only on a ground: (a) sued first · (b) trades here · (c) property here · (d) waiver. ARREST: barred outright (5). Tenant may sue re property without consent (proviso).

A foreign State and its representatives are immune from suit and from execution unless the Central Government certifies its written consent — and consent itself is confined to four grounds. Arrest is barred with no exception; only the tenant proviso lets a suit through without consent.

Section 86, part by part











A suitCentral-Govt consentcertified by a SecretaryForeign Statemay be suedTenant suing about the very property he holds — no consent needed (proviso).
The bar
No foreign State may be sued in any Court otherwise competent to try the suit
A foreign State is immune — it cannot be sued in an Indian court, even one that would otherwise be fully competent.
The only key
except with the consent of the Central Government certified in writing by a Secretary to that Government
The bar lifts only on the Central Government’s consent, certified in writing by a Secretary. (In 1976 the old “Ruler of a” was dropped — the bar now runs for the foreign State.)
Tenant exception
Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid a foreign State from whom he holds or claims to hold the property.
One suit needs no consent: a tenant may sue the foreign State that is his landlord, about the very property he holds or claims to hold.
Consent given ONLY if the foreign State —(a) sued first(b) trades here(c) property here(d) waiverScope: one suit · several · or a whole class — and may name the court.
Scope · suit(s)
Such consent may be given with respect to a specified suit or to several specified suits
Consent may be tied to a single named suit, or to several named suits — a narrow, suit-specific permission.
Scope · a class
or with respect to all suits of any specified class or classes,
Or it may be broader — covering all suits of a specified class (or classes), a category-wide consent rather than a suit-by-suit one.
Names the court
and may specify, in the case of any suit or class of suits, the Court in which the foreign State may be sued,
And the consent may go further and name the very court in which the foreign State may be sued — channelling the suit to a chosen forum.
Only on a ground
but it shall not be given, unless it appears to the Central Government that the foreign State—
Consent is withheld unless one of four grounds appears — the statute’s version of restrictive immunity.
(a) Sued first
has instituted a suit in the Court against the person desiring to sue it, or
The State itself sued that person in the court — having invoked the court, it can be answered there.
(b) Trades here
by itself or another, trades within the local limits of the jurisdiction of the Court, or
It trades within the court’s jurisdiction (directly or through another) — commercial activity, not a sovereign act.
(c) Property here
is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon, or
It holds immovable property in the jurisdiction and is sued about that property (or money charged on it).
(d) Waiver
has expressly or impliedly waived the privilege accorded to it by this section.
It has given up the immunity — expressly, or impliedly by its conduct.
A decreeSame written consent(certified by a Secretary)Execution vsState property
No execution without consent
Except with the consent of the Central Government, certified in writing by a Secretary to that Government, no decree shall be executed against the property of any foreign State.
Immunity outlives the judgment: even after a decree, no execution may touch a foreign State’s property without the same written consent. (Sub-section (3) was substituted in 1976.)
Protections (1)–(3) extend to:RulerAmbassador / EnvoyHigh CommissionerStaff— exactly as they apply to the foreign State itself (staff: as the Central Govt specifies).
Extends to
The preceding provisions of this section shall apply in relation to
The protections in (1)–(3) are extended to the persons listed below —
As for a State
as they apply in relation to a foreign State.
— exactly as those provisions apply to a foreign State itself.
(a) any Ruler of a foreign State;
(aa) any Ambassador or Envoy of a foreign State;
(b) any High Commissioner of a Commonwealth country;
(c) any specified member of the staff of the foreign State, or the staff or retinue of the Ambassador / Envoy / High Commissioner, as the Central Government specifies by general or special order.
Cannot be ARRESTED under the Code:RulerAmbassador / EnvoyHigh CommissionerStaff✗ Absolute — there is no consent route to arrest.
Absolute bar
The following persons shall not be arrested under this Code, namely:—
For these persons the bar is absolute — no consent route exists: they simply cannot be arrested under the Code.
(a) any Ruler of a foreign State;
(b) any Ambassador or Envoy of a foreign State;
(c) any High Commissioner of a Commonwealth country;
(d) any specified member of the staff / retinue of the Ruler, Ambassador, Envoy or High Commissioner, as the Central Government specifies.
Consent requestto the Central GovtReasonable hearingbefore any refusalGrant / refusewholly or in part
Heard before refusal
the Central Government shall, before refusing to accede to the request in whole or in part, give to the person making the request a reasonable opportunity of being heard.
A duty of fairness: before refusing a consent request — wholly or in part — the Government must give the applicant a reasonable hearing. (Inserted in 1976.)

How the six sub-sections work as one body

Immune — unless the Government opens the door

(1) Consent to sue

No suit against a foreign State without the Central Government’s written consent — bar one tenant exception.

(2) Scope & grounds

Consent fits the suit(s), and comes only if the State sued first / trades / holds property / waived.

(3) Execution

No decree executed against its property without the same consent.

(4) Who is covered

Rulers, Ambassadors, Envoys, Commonwealth High Commissioners and specified staff.

(5) No arrest

Those persons cannot be arrested under the Code — absolutely.

(6) Heard first

Before refusing consent, the Government must give the applicant a hearing.

The whole section was recast by Act 104 of 1976 — switching to “foreign State” language, substituting the execution bar (3) and adding the no-arrest list (5) and the hearing-before-refusal duty (6).

What the 1976 amendment did

Act 104 of 1976, s. 29 (w.e.f. 1-2-1977) — a single recast with many parts

Replaced “Ruler of a [foreign State]” with “foreign State” throughout — the immunity now runs for the State itself (notes 1–5).
Substituted the execution bar in sub-section (3) (note 6).
In sub-section (4), inserted clause (a) (any Ruler) and re-lettered the old (a) as (aa); recast the staff clause (notes 7–10).
Inserted sub-sections (5) (no arrest of these persons) and (6) (a hearing before consent is refused) (note 11).

Connected provisions

Section 86 is the core of Part IV’s foreign-sovereigns group (§§ 83–87B): a foreign State suing (§ 84), its appointed agents (§ 85), suits against it and its representatives (§ 86), the style of foreign Rulers (§ 87) and the definitions of “foreign State” and “Ruler” (§ 87A); § 87B applies §§ 85–86 to Rulers of former Indian States.

§ 85 ←Persons appointed to act for a foreign Ruler — the suing side.
§ 87 →The style in which a foreign Ruler is named as a party to a suit.
§ 87ADefinitions of “foreign State” and “Ruler”.
🗺 Part IV MapThe whole of Part IV — suits in particular cases §§ 79–93.
Test yourself
1 Can a foreign State be sued in India without more? — No — only with the Central Government’s written consent, certified by a Secretary [§ 86(1)].
2 On what grounds may consent be given? — if the State sued first, trades here, holds property here (and is sued about it), or waived immunity [§ 86(2)(a)–(d)].
3 Can a decree be executed against a foreign State’s property? — Not without the same written consent [§ 86(3)].
4 Can a foreign Ambassador be arrested under the Code? — No — § 86(5) bars arrest of Rulers, Ambassadors, Envoys, Commonwealth High Commissioners and specified staff.
Part IV · Suits in Particular Cases · Section 86 — Suits against foreign Rulers, Ambassadors and Envoys.