Who May Sue

An insolvent. On insolvency the right to sue for wrongs to property passes to the official assignee or receiver, because it is part of the estate available to creditors. A right of action for a purely personal wrong, such as defamation or assault, remains with the insolvent himself.

A convict. A person undergoing a sentence does not lose the right to sue. On the contrary, the Supreme Court has held that a prisoner retains the fundamental right to life, and compensation has been awarded for custodial violence and unlawful detention.

An alien enemy. A subject of a State at war with India, or a person voluntarily residing in or carrying on business in enemy territory, cannot sue in an Indian court during the war without permission from the Central Government. His right is suspended and not destroyed, and he may sue after the war ends.

A foreign State. A foreign sovereign State may sue in an Indian court, subject to the conditions in section 86 of the Code of Civil Procedure 1908, which requires the consent of the Central Government.

A foreign national. This is an Indian development and it is worth a paragraph of its own.

The foreign national, and the case that decided it

Facts. Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988, decided on 28 January 2000. Hanuffa Khatoon, a national of Bangladesh, was gang-raped by railway employees in a room of the Rail Yatri Niwas at Howrah station. A practising advocate, Chandrima Das, moved the High Court under article 226 claiming compensation for the victim, and the High Court awarded Rs. 10 lakhs against the Railways. The Railways argued that the wrong was that of individual employees, that the remedy lay in private law, that the petitioner was a stranger to the victim, and that the victim was a foreign national.

Held. The appeal was dismissed. The Court held that the right to life under article 21 is available to every person and not only to a citizen, so a foreign national may enforce it; that the employees were performing functions of a commercial character on behalf of the Union, which made the Union liable; that a practising advocate could bring the petition in the public interest; and that compensation in public law is an appropriate remedy for the violation of a fundamental right.

Why it matters here. It settles that nationality does not decide who may sue in India for a violation of the right to life, and it is the leading case on the width of the class of plaintiffs.

Where somebody sues on another's behalf

The next friend. A minor or a person of unsound mind sues through a next friend, who is not himself the plaintiff.

The legal representative. On death the action, where it survives, is brought by the executor, administrator or representative of the deceased. Chapter [Death and the Fatal Accidents Act 1855] works this out, and Manjuri Bera v. Oriental Insurance Co. Ltd, (2007) 10 SCC 643, holds that a legal representative who is not a dependant may still receive a statutory no-fault amount, because it forms part of the estate.

The State as parens patriae. Parens patriae is Latin for parent of the country, and it describes the power of the State to act for those who cannot act for themselves.

Facts. Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, decided on 22 December 1989 by five judges. After the escape of methyl isocyanate gas at Bhopal, Parliament passed the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985, giving the Union Government the exclusive right to represent the victims in all claims arising out of the disaster, in India and abroad. Its validity was challenged.

Held. The Act was upheld on the doctrine of parens patriae: the State is under an obligation to protect the rights of citizens who are unable to protect themselves, and the victims, poor and disorganised in the face of a multinational corporation, were such a class. The Court read into the Act a requirement of notice and hearing to the victims where a settlement is proposed, and held that the State was obliged to see that the victims were compensated even if the company could not pay.

Why it matters here. It is the largest Indian example of somebody other than the injured person suing for them, and chapter [The Bhopal Gas Disaster] takes the story further.

A representative complaint. Under section 35 of the Consumer Protection Act 2019, one or more consumers having the same interest may complain on behalf of all of them, with the permission of the Commission, which is the consumer law's version of the same idea.

A worked example

A school bus overturns because of the driver's negligence. Among those hurt are Reena, aged nine; her mother, who was accompanying the class; a German exchange student; and the bus company's rival, whose contract to supply the school was cancelled because of the accident.

Reena may sue, through a next friend. Her age does not reduce the duty owed to her.

Her mother may sue in her own name.

The German student may sue in the ordinary courts, and if a public authority is responsible may also claim compensation under article 226, because Chandrima Das holds that article 21 protects every person and not only a citizen.

The rival may not sue. His loss is real but no legal right of his has been infringed; it is damnum sine injuria.

What it does NOT mean

It does not mean a person who suffers most is always the plaintiff. The right infringed decides, not the loss suffered.

It does not mean a minor's claim is weaker. It is brought differently, through a next friend, and it is worth as much.

It does not mean a corporation can sue for anything. It can sue for injury to property, business and trading reputation, not for wrongs which by their nature can be done only to a human being.

It does not mean an alien enemy loses his rights forever. His right to sue is suspended during the war, not extinguished.

Quick revision

1. General rule: any person whose legal right is infringed may sue; loss and privity are not required.
2. Minor and person of unsound mind: sue through a next friend.
3. Unborn child: may sue after birth for prenatal injury.
4. Married woman: sues in her own name.
5. Corporation: property, business and trading reputation only.
6. Insolvent: rights of action relating to property pass to the assignee; personal wrongs remain with him.
7. Alien enemy: right suspended during war; a foreign State sues subject to section 86 of the Code of Civil Procedure 1908.
8. Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988: article 21 protects every person, so a foreign national may claim.
9. Charan Lal Sahu v. Union of India, AIR 1990 SC 1480: the State may sue as parens patriae for victims unable to protect themselves.
10. Section 35 of the Consumer Protection Act 2019 allows a representative complaint by consumers having the same interest.

Test yourself

1. Who may sue in tort? Discuss the position of the special classes of plaintiffs. The general rule is that any person whose legal right has been infringed may sue, whether or not he has suffered loss and whether or not he has any relationship with the defendant. Special provision exists for several classes. A minor and a person of unsound mind sue through a next friend. A child injured in the womb may sue after birth. A married woman sues in her own name. A corporation may sue for wrongs to its property, business and trading reputation, but not for wrongs that can only be committed against a natural person. On insolvency, rights of action relating to property pass to the assignee while personal claims stay with the insolvent. A convict retains his right to sue and, in India, his right to compensation for custodial violence. An alien enemy cannot sue during the war without the permission of the Central Government, and a foreign State sues subject to section 86 of the Code of Civil Procedure 1908. A foreign national may sue and may also enforce article 21, as Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988, holds.

2. Can a person who has suffered no loss sue in tort? Yes, where a legal right of his has been infringed and the tort is actionable without proof of damage. The maxim is injuria sine damno: the law presumes damage where a right is violated, and the plaintiff succeeds, though the damages may be nominal. Conversely, a person who has suffered heavy loss but can point to no right of his that was infringed cannot sue at all, which is damnum sine injuria. So the test is the infringement of a right, not the presence of loss.

3. Explain the doctrine of parens patriae with an Indian case. Parens patriae means parent of the country, and it describes the power and obligation of the State to protect the rights of those who cannot protect themselves. In Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, a Bench of five judges upheld the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985, which gave the Union Government the exclusive right to represent the victims of the gas leak in all claims in India and abroad. The Court held that the victims were poor and disorganised and faced a multinational corporation, so that the State was the proper representative, but it read into the Act a requirement that victims be given notice and an opportunity to be heard where a settlement was proposed, and held that the State was bound to ensure that they were compensated even if the company could not pay.

4. Can a foreign national claim compensation in India for a tort committed by public servants? Yes. In Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988, a Bangladeshi woman was gang-raped by railway employees at Howrah station, and compensation of Rs. 10 lakhs awarded by the High Court against the Railways was upheld. The Supreme Court held that the right to life guaranteed by article 21 is available to every person and not only to citizens, that the employees were performing functions of a commercial character on behalf of the Union so that the Union was liable, that a practising advocate could bring the petition in the public interest, and that compensation in public law is an appropriate remedy for the violation of a fundamental right.