Case of the Day: Sikhs for Justice v. Nath
Posted on March 22, 2012
In 1984, two of Indian Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her in New Delhi, setting off a wave of anti-Sikh violence. At the time, Kamal Nath was a member of the Indian parliament. Shortly after the assassination, Nath traveled to Gurudware Rakab Ganj Sahib, one of the sites of the anti-Sikh violence in the capital, but the Indian government later exonerated him against claims that he had incited a riot at Gurudware.
In 2010, Sikhs for Justice and several individuals sued Nath and others, asserting claims of genocide, rape, torture, summary execution, extrajudicial killings, and crimes against humanity against Nath under the Alien Tort Statute and the Torture Victims Protection Act. They attempted to serve the summons and complaint on Nath while he was in New York on official business. They filed an affidavit of service by a process server asserting that she had served Nath in the street in front of the Indian consulate. The judge, however, found that Nath “was not approached or handed papers by anyone in the street, either upon arrival or departure from the consulate.” Instead, when Nath was inside the consulate, the process server spoke with the consulate’s security guard about serving process on Nath. The guard referred her to someone named Sandeep, who looked at the documents, refused to accept them, and “threw the envelope in a trash bin on the sidewalk.” Inside the consulate, a reporter handed Nath a copy of the summons and complaint that the process server had sought to serve outside the consulate. Nath commented on the papers.
Nath moved, of course, to dismiss for insufficient service of process. The judge agreed. I think the plaintiffs had the right idea in trying to serve Nath when he was in the United States, because it seems more than possible that the Indian central authority would refuse to execute a request for service of process under the Hague Service Convention on Article 13 grounds, as it did in the case against Indian diplomat Neena Malhotra in the case of the day from December 5, 2011. “Tag service” is both constitutional and consistent with the Federal Rules of Civil Procedure, and it avoids the Convention altogether. But the decision seems clearly correct. The most interesting question is whether the actual receipt of the documents from the reporter inside the consulate counts as service. The court avoided the question by noting that consular premises are inviolable under Article 31 of the Vienna Convention, and as a result, according to the Restatement, service of process within a consulate is improper and presumptively invalid.
But suppose the service had not been in a consulate. Would the service have been valid? This raises the question of whether the person who hands the documents to the defendant has to be acting with the intention of serving the documents or as agent of the plaintiffs. I have never seen a case on that question before. An interesting question: what is the rationale for holding that service is improper if made by a person not acting on behalf of the plaintiff, and who does not intend to serve process, but instead hands the papers to the defendant for another reason (such as for comment at a news conference)? I’m pretty sure the service has to be invalid in such a case, but I’m not sure why.
Photo credit: US Defense Department