Preet Bharara, U.S. Attorney for the Southern District of New York has urged a federal court to ignore a case brought by human rights activists against Prime Minister of India Narendra Modi. In an Oct. 19 letter to the U.S. District Court for the Southern District of New York in a case filed by the American Justice Center and other entities, Bharara argues that the U.S. law and international law recognizes Modi’s immunity while in office. The AJC hearkened back to the 2005 visa ban on Modi on the basis of alleged human rights violations during the 2002 Gujarat communal riots.
According to information contained in Bharara’s letter, the Indian Embassy in Washington formally requested the U.S. government to determine that Prime Minister Modi was immune from the lawsuit. Ironically, the clarification was being sought even as the Prime Minister was meeting President Obama at the White House. In a letter dated Sept. 30, the day of the bilateral heads-of-state meeting the State Department’s Acting Legal Adviser Mary E. McLeod sent a letter to Joyce Branda, acting Assistant Attorney General in the Justice Department saying, “Department of State recognizes and allows the immunity of Prime Minister Modi as a sitting head of government from the jurisdiction of the United States District Court in this suit while in office.”
The Sept. 30 State Department letter urges the Justice Department to seek early dismissal of the case, saying, “This letter recognizes the particular importance attached by the United States to obtaining the prompt dismissal of the proceedings against Prime Minister Modi in view of the significant foreign policy implications of such an action.”
Bharara argues that the Obama administration is the sole authority to decide on immunity and that under principles of customary international law and for the implementation of an effective foreign policy and conduct of international relations, Prime Minister Modi had immunity from the suit.
He cites several precedent-setting cases similar to the one relating to Modi which showed that the “Executive Branch retains its historic authority to determine a foreign official’s immunity from suit, including the immunity of foreign heads of state and heads of government.”
According to Bharara, “When the Executive Branch determines that a sitting head of state or head of government is immune from suit, judicial deference to that determination is predicated on compelling considerations arising out of the Executive Branch’s authority to conduct foreign affairs under the Constitution.”
Hence, Bharara concludes, “In this case, because the Executive Branch has determined that Prime Minister Narendra Modi, as the sitting head of a foreign government, enjoys head of state
immunity from the jurisdiction of U.S. courts in light of his current status, Prime Minister Modi is entitled to immunity from the jurisdiction of this Court over this suit.”
The lawsuit under contention was filed the day Modi left Delhi for the United States Sept. 26, by AJC and two Godhra survivors. At that time the State Department had clearly said Modi had complete diplomatic immunity and personal inviolability and could not even be handed documents or subpoenaed for the case.
The AJC said in a statement it would contest the Obama administration’s position on the issue, Press Trust of India reported. One of the attorneys at AJC, Gurpatwant Pannu, who has also filed lawsuits against Congress Party leader Sonia Gandhi and others on the issue of the 1984 massacre of Sikhs, is quoted saying, “The suggestion by the US Department of State not only violates the US laws and established US policy on the issue of human rights violations but also violates several provisions of US Laws such as Human Rights Enforcement Act and International Religious Freedom Act.”