Group President, Group Managing Director & Editor In Chief: Dr.Shelly Ahmed

Wednesday, April 09, 2014

What Is The Truth Behind Sonia Gandhi’s Trips To The US?

By Rahul Seth | INNLIVE

SPECIAL REPORT Last year in September, a US court had reportedly served a summons to Congress President Sonia Gandhi in a human rights violation case related to the anti-Sikh riots of 1984. The summons were served after a group called SFJ (Sikhs for Justice) filed a civil suit in a Brooklyn Federal Court alleging that Mrs Gandhi was guilty of shielding some Congress members who had played an active role in the 1984 riots.
The court sent the summons at a time when Sonia Gandhi was reported to be in the US to for a “routine medical checkup”. She had gone to the US after being briefly hospitalised at AIIMS, New Delhi. One may recall that she had felt some uneasiness and had to abruptly leave the Lok Sabha debate on the Food Security Bill — an event that was recounted many times by Rahul Gandhi in his election rallies. 

Unlike some of her other foreign trips, this particular trip was not a “secret”. There were media reports informing the public in advance that she indeed would be travelling abroad for medical reasons. Here is a Firstpost report based on a PTI copy, which quotes Congress general secretary Janardhan Dwivedi confirming Sonia’s trip to the US for six to eight days. The Congress party had requested the media to respect Mrs Gandhi’s privacy and not pry too much into the affair — a request that was respected by the media. 

The only time any major news report relating to Sonia Gandhi was filed from the US was when this US court suddenly sent a summons to her. Here is a  WSJ report that documents this development, and also reiterates that Sonia Gandhi was in the US for a medical checkup when the court issued the summons. The WSJ report says that the responsibility for delivering the summons to Sonia Gandhi lay with the plaintiff, ie the SFJ. 

According to a report, the SFJ did leave copies of the summons in the hospital in a rather “improper” manner, but the hospital staff never delivered them to Sonia Gandhi. So based on media reports, Sonia Gandhi was in the US but she never received the summons. But here is the surprise element: Sonia Gandhi apparently claimed to the court that she did not receive the summons because she was not in the US from 2 September to 9 September 2013. 

Why would Sonia Gandhi claim something that was different from what was told to the media by Dwivedi? The media reports clearly said that she was in US, even though she might not have received the summons. Following this seemingly bizarre claim, the US court reportedly asked Sonia Gandhi to provide them her passport to prove her travel claims. 

And as per the latest reports, Sonia Gandhi has refused to provide the passport. The issue here is not the case against her. Prima facie, the US court has no jurisdiction, either personal or on this subject matter, to summon her for any human rights violation that may have happened in India. Jaideep Prabhu, in this article, argues why the case against Sonia is weak. 

He further suggests, and rightly so, that as a nation India should object to such treatment to Indian leaders. The issue here is what made Sonia Gandhi claim that she was not in the US during the period when every bit of public information speaks to the contrary? A statement submitted to a court can’t be made so casually. 

Around three years ago, India Today tried to get details of Sonia Gandhi’s foreign trips through an RTI, and no specific information was received. Now her latest claims about her whereabouts last September make her international travels “mysterious” again. What is the truth about her travels to the US?

On the other hand, INNLIVE examines whether the idea that a state's laws can apply beyond its jurisdiction violates the cardinal principle of national sovereignty.

In response to a class action suit filed by human rights group Sikhs For Justice, the district court of the eastern district of New York issued a summons to Congress president Sonia Gandhi for her alleged role in shielding those involved in the 1984 anti-Sikh riots from justice. Under the US Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA), foreigners may be sued in US courts for violations committed against the laws of nations even in foreign jurisdictions.

For most of its history, the ATS, passed in 1789, had an insignificant role, featuring only twice in judicial history until Filártiga v Peña-Irala in 1980. The case involved two Paraguayans who sued a former Paraguayan official for torture and murder of their family while in Paraguay. The court ruled that the case brought by an alien was a tort and violated the law of nations. Since the law of nations is a customary international law and has always been a part of US federal common law, US courts had jurisdiction over the case. It is important to note that this case was brought against an actual perpetrator of a brutality, unlike the case against Sonia Gandhi.

In Sosa v Alvarez-Machain in 2004, the US Supreme Court (SCOTUS) held that while ATS authorised federal courts to recognise private damages, common international law was to be interpreted in a very limited manner. Otherwise, it could raise several questions, including repercussions on US foreign relations. 
Given this conservative position, it is unlikely that the shielding of alleged criminals 20 years after the fact will be taken seriously.

In April 2013, in Kiobel v Royal Dutch Petroleum, the nine-judge bench of SCOTUS unanimously ruled against the extraterritorial presumption of US law.

Four argued that ATS applied only when: 1. the defendant was American; 2. the event took place in US jurisdiction; or 3. the conduct substantially affected US interest, while the other five cited caution urged in Sosa in matters of foreign policy. Thus, relief for violations outside US jurisdiction cannot be granted. This verdict clearly indicates that the appellant’s claim against Sonia Gandhi is unlikely to impress the court.

In 1992, however, the US Congress passed the TVPA, which expressly held the understanding on Filártiga. Yet, the TVPA also has its restrictions - the law applies only to individuals acting in official capacity and provides relief against torture and extrajudicial killings only. The TVPA does not consider cases of obstruction of justice, as Sonia Gandhi’s accusers claim.

Furthermore, she has held an official position only since 1999, as an MP. The summons against Sonia Gandhi under these statutes is twice removed — she has been accused of shielding, not perpetrating the crimes.

Moreover, no court has found those persons Sonia Gandhi allegedly shields to be guilty. Prima facie, it appears unlikely that a serious case can be mounted against her barring the broadest interpretation of ATS.

Beyond its legal (de)merits, the idea that a state’s laws can apply beyond its jurisdiction violates the fundamental principle of national sovereignty. Presently, only the US has such a law, and if this principle were to be expanded to other states, one could imagine lawsuits against George W Bush, Ariel Sharon, and others. Consequently, the only bar to a state suing the leader of another state is their differential in power.

To India, any such suit is an affront to her national sovereignty. The notion that India will allow its leaders to be tried by foreign powers is destabilising and a matter of national shame. It is worth repeating that Sonia Gandhi’s alleged wrongdoing is nowhere near the magnitude of crimes the ATS or TVPA was intended for, and the suit should hold hardly any water.

In some ways, this event is a lesson to those who have in the past run to the US with India’s domestic problems, via their epistolary genius or their efforts to deny recognition — visas, magazine covers, speaker’s platforms — to other elected Indian officials. Yet as one nation, India must strenuously object to the treatment of its leaders thus from foreign countries.
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