The ongoing controversy over the refusal of the Italian government to permit the return of the marines has attracted a lot of attention of the press, public and politicians. The blame game has begun with the opposition accusing the ruling UPA-2 of conniving in orchestrating their departure while calls for various forms of retaliation are being made by columnists and retired bureaucrats in the mainstream press and by the hoi polloi on social media. Whereas the government does not appear to have formally replied to the Italian offer of negotiations, the public sees it as an affront to our dignity to engage in any such dialogue with those who have failed to keep their word.

Apart from questions about why they were allowed to leave in the first place, it is also being asked – rhetorically to some extent – having agreed to submit to Indian jurisdiction, how they could renege on the promise made. That is not entirely correct: the Italian government has never recognized India’s authority to try the marines. They submitted to the process only for lack of an alternative while continuing to insist at every stage that their position has not changed. One only needs to look at the press statements of the Italian foreign ministry to recognize this fact. That being said, it is true that they did give a formal undertaking to return them for trial in India which they have now reneged on and must now pay a price for.

For their part, the Italians claim that they made numerous efforts to resolve this matter through negotiations but were unsuccessful. This is likely true – one only has to recall the public statements of their Prime Minister, phone conversation with Dr.Singh, temporary recall of their ambassador and repeated entreaties to the MEA both in Rome and Delhi last year. No word has been forthcoming from the government of India what the difficulty was/is in resolving the issue of jurisdiction. The only answer heard is that the Indian courts have already answered in the affirmative while still permitting the marines and their government to raise these questions again during the course of the trial and thereafter. Hence, having been providing with all the available remedies under law, the requirements of due process have been fully met and no claim of injustice can be entertained.

On the face of it, this assertion is correct. Jurisdictional challenges were raised in both the Kerala High Court and subsequently in the Supreme Court. Both of them ruled that India had jurisdiction to try them. However, upon a closer examination of these rulings, several concerns come to light, the thread common to all of them being that a part of the challenges they raised were dismissed without adequate or convincing reasoning at both levels. There are also other debatable aspects of the judgments some of which cut against the Italians’ assertions. Without going into great detail about the facts for reasons of brevity, I explain below the several gray areas of these judgments.

Analysis of the Judgments:
The Kerala High Court correctly framed the issues as stated below:
(i) Whether the Italian Marines on board the vessel who shot down two Indian fishermen, on board a boat registered in India, in the territorial sea / contiguous zone / Exclusive Economic Zone of India are liable to be prosecuted for murder in accordance with the IPC and other domestic laws of India.

(ii) Whether the Italian Marines are entitled to sovereign immunity against the prosecution in India.

Question (i) has a number of sub-parts to it. The jurisdictional aspect involved the scope of the Indian Penal Code(IPC)  sections 2 (punishment of offences committed within India), 3 (punishment of offences committed beyond but which by law may be tried within India) and 4 (extension of code to extra territorial offences). The first question is whether this occurred within or outside India. India, as the IPC defines it in section 18, means the territory of India and there is some debate whether it refers only to land or also includes the “territorial waters” of India which extend up to a distance of 12 nautical miles from the shore. That is not salient here because the incident occurred at ~20.5 nautical miles away – clearly beyond the territorial waters and falls in what is called the “contiguous zone”. Therefore, it is not within India and section 2 would not be ordinarily applicable. But under the Maritime Act, 1976, the Indian state claims full and exclusive sovereign rights in the “Exclusive Economic Zone (EEZ)”, a region extending from 12-200 nautical miles off shore which includes the contiguous zone and has conferred upon the Union government the authority to extend Indian laws to this area with such restrictions and modifications as it thinks fit. Under s.7(7) of this law, both the IPC and Criminal Procedure Code(CrPC) have been extended to this region through a gazette notification with an additional provision s.188A inserted into the CrPC which allows any person committing an offence in the region to be “dealt with in respect of such offence as if it had been committed in any place in which he may be found or in such other place as the Central Government may direct….”. This legal fiction, it was argued, allows the marines to be investigated and charged for murder just like any other individual on the mainland.

A few objections to this may be raised. Firstly, under s.14, Maritime Act, 1976, no prosecution for any offence under the Act may be made without the sanction of the Central government. Because the IPC and CrPC have been extended through a notification issued under this Act, it may be argued that this statutory requirement must apply to all prosecutions for offences in the EEZ, overriding any rule to the contrary including but not limited to s.188A. This argument appears to have neither been raised and considered by the courts at any stage nor was any such sanction sought by the Kerala police for offences other than those coming under the Suppression of Unlawful Acts (SUA) Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (more on that later). The second is that s.188A, CrPC has not been notified under the CrPC and a new provision cannot be introduced through a gazette notification under the Maritime Act, 1976 but must be incorporated only through an amendment enacted by parliament – in simple words, this is an expansion of the scope of a criminal law which cannot be accomplished in this manner. The Kerala HC did not dispute this contention but held that ‘non-addition of s.188A would not affect the applicability of the IPC and CrPC to the EEZ’, the remainder of the notification still being valid. s.188A does not create any new offence or enlarge the scope of any offence; it only clarifies which court(s) in India may take cognizance of them and the role of the Center in determining the same and could be plausibly argued to come within the scope of the term ‘modifications’ permitted under s.7(7)(a), Maritime Act, 1976 . The SC affirmed the government’s authority to extend sovereign rights to the EEZ but did not specifically deal with this question. Instead it held that because the EEZ does not come within the territory of the state of Kerala, it is the Union rather than the state which has jurisdiction over the marines without explaining whether s.188A is a valid addition or not; if so, then why the state would lack authority to investigate the incident under s.179 and s.183, CrPC and try them for the said offences particularly when the Union of India had not invoked its authority to transfer the case to another place; if not, then what the basis is for the Union government rather than the state to be inquiring into it.

A second issue is with respect to the scope of s.7(7) under which this notification extending IPC and CrPC to the EEZ was made. While s.7(7), Maritime Act, 1976 confers broad authority on the Central government to extend any enactment to the EEZ, the scope of rights proclaimed by India in the Act in s.4, Maritime Act as well as in art.56, UN Convention on Laws of the Sea (UNCLOS) (ratified by India in 1995) are more limited. The Indian parliament has not enacted any law to domestically incorporate UNCLOS which raises a real question of enforceability under its provisions when they come in conflict with domestic law. Nonetheless, the SC held that India must abide by it and that while India did not have sovereignty in the EEZ, it did enjoy sovereign rights there. If that is the case, then does it mean that the scope of enactments notified under s.7(7) would be necessarily limited by the rights recognized in international law? The SC discusses international precedents and the answer appears to be a qualified yes at least as far as criminal laws apply but it seems that the court was reluctant to provide greater clarity particularly when they are not in harmony. A look at the final order demonstrates this: “The Union of India is therefore directed, consultation with the Chief Justice of India, to set up a Special Court to try this case and to dispose of the same in accordance with the provisions of the Maritime Zones Act, 1976, the Indian Penal Code, the Code of Criminal Procedure and most importantly, the provisions of UNCLOS 1982, where there is no conflict between the domestic law and UNCLOS 1982.

The marines argued, inter alia, that proceedings cannot be initiated against them under article 97 of UNCLOS. That provision states: “In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.” The ship being under the Italian flag and the marines being nationals of that country, they claimed they were immune to Indian jurisdiction. No one disputed that there was no collision here; so the only remaining question was whether this fell within the scope of ‘incident of navigation’. The Kerala HC said that the term can only apply to an event having a bearing on navigation and opening fire on a fishing boat clearly does not qualify. In the SC, the government argued that ‘incident’ is akin to ‘accident of navigation’ and it was not contemplated that homicide would fall under it. The judges agreed (para. 94) saying that an ‘incident’ cannot involve a criminal act in whatever circumstances.

Lastly, the Kerala HC held that the marines may also be tried under section 3, IPC (punishment of offences committed beyond but which by law may be tried within India) in conjunction with section 3, SUA Act. The Italians raise several objections of which a couple hold merit. The first is that the Act gives authority only to the Central government to arrest the accused and investigate the matter whereas all of that was done in this case by the Kerala police when the matter came before the HC. Sanction for prosecution is also required from the Central government under s.12 (it is not clear whether it had been granted). The second is the scope of section 3 of the Act which is the domestic equivalent of the SUA Convention (which is yet to come into force) and specifies the offences coming within its purview. The most relevant provision here would be s.3(1)(a) which specifies punishment for anyone committing an offence unlawfully and intentionally “against a person on boarda ship which is likely to endanger …safe navigation of the ship…” That raises the question: if the firing incident had no bearing on navigation as the HC proclaimed and the SC appeared to agree with, then is it reasonable to claim that they are covered by the SUA Act which requires that the offence be related to safe navigation of the ship? The judgments are silent on this crucial point. Lastly, the order of the SC transferring the case to a special court to be set up by the Central government is also contrary to s.5(1) of this Act which empowers the Chief Justice of the HC with that authority.

The other issue was whether the marines were military personnel entitled to immunity as agents of the Italian state performing a sovereign function. There was also a factual dispute regarding whether the marines were ‘lured’ to port under a false pretense of identifying pirates or were compelled to port by the Coast guard. The state of Italy claimed the former was the case and they were really “guests” of the government of India who ought to be immune to prosecution (the Coast guard’s version was that upon identifying the impugned vessel, it was directed to take it to the port of Cochin and the Captain complied. In the absence of a trial, the veracity of these claims has still not been verified). The Kerala HC dismissed this on the ground that the Italian government had failed to do due diligence to identify the specifics of the incident, lacked bonafides and its petition was ‘hardly reliable’. The government argued this point in the SC stating that existing immunity laws and conventions apply only to diplomats and no provision of law exists under which they can claim protection. The courts only addressed questions of immunity under UNCLOS without referring to the other precedents and conventions which the Italians claimed are evidence of customary international law on this point.

Commentators have noted that the SC allowed the marines to re-agitate the issues of jurisdiction at trial when the evidence would have actually been recorded on these points and that nothing was to come in the way of reconsidering their claims if such applications were made. Absent some fundamental change in the facts of this narrative emerging during the trial – an improbable prospect – this assurance was only notional, not real. Since the jurisdictional grounds had already been heard and disposed of by the HC and SC, it was most unlikely that any trial court would have dared to reverse on such grounds. Even if the same matter had come back to the SC post-trial, it is again equally unlikely that the SC would have gone against its previous determination and reexamined the same questions afresh. On the whole, balance of probability suggests the marines were on an inexorable course towards conviction on one or more counts (see update below).

My conclusion is that though the Italians received the benefit of India’s legal process, its infirmities precluded a complete and authoritative determination of the force of their claims on several aspects. The simplest course that the courts might have taken to avoid many of these complexities (as a first step at least) may have been to subject all prosecutions under the IPC to the sanction requirement laid down in s.14, Maritime Act, 1976, exclude application of the SUA Act to violent incidents resulting from attempts to defend against real or perceived acts of piracy, take investigation and prosecution under the SUA Act out of the purview of the state of Kerala and remand for trial. While the legal foundations of the SC’s views are debatable, politically they were astute. Requiring full conformity with UNCLOS reduces the need for further parliamentary enactment, an unenviable proposition in an emotionally fraught situation atop a fractious polity. Shifting the trial venue to Delhi also diminished the popular pressure to ensure a conviction striking a fine balance between being seen to be doing justice to the dead fishermen while at the same time strengthening the Center’s hand in maneuvering the future legal course.

The judicial process has also had its downsides. Firstly, a definitive view of the domestic legal position in the event of such episodes has not yet emerged with implications for both Indian authorities as well as foreign countries involved in anti-piracy operations in waters adjoining our territory. Secondly, it foreclosed the possibility of an early settlement of this matter. Thirdly, while making the need for negotiations all the more urgent, it probably would have made the task of reaching an agreement – arduous in the first place – even more onerous as anything that did not save the marines from their fate would have been difficult for Italy to accept and anything that did would have been an impossibility for us to swallow.

The Agreement with Italy to Transfer Sentenced Prisoners: 
As previously explained, the marines were headed towards a prison term. But commentators have largely overlooked the implications of the Transfer of Sentenced Persons Agreement India concluded (under the Repatriation of Prisoners Act, 2003) with Italy on 10th August, 2012 which might well have provided the government a legal cover to wriggle out of this difficult situation, caught as it was between the conflicting pressures of the state of Kerala and the Italian authorities.

There were reports last year that the government was in discussions with Italy to conclude it but little on its actual contents. Given that not much has been spoken of it in the press, I suspect the government was anxious to get it done with a minimum of publicity. However, a copy of the text may be freely obtained from the official Italian Gazette. While being no expert on Italian law, I draw attention to provisions that might have been relevant to this case:

Article 9
Continued enforcement of sentence: 
1. Save as provided by article 11 of this agreement, the authorities of the Receiving State shall continue to enforce the sentence complying with the nature and duration of the sentence inflicted by the judgment of the Transferring State.
2. The enforcement of the sentence shall be governed by the law of the Receiving State and that State alone shall be competent to take all appropriate decisions.
3. If the sentence is by its nature or duration or both, incompatible with the law of the Receiving State, that State may, with the prior consent of the Transferring State, adapt the sentence to a sentence prescribed by its own law for a similar offence. As to its nature and duration, the adapted sentence shall, as far as possible, correspond with that imposed by the judgment of the Transferring State. It shall however not aggravate, by its nature or duration, the sentence imposed by the Transferring State.

Article 11
Pardon, Amnesty or Commutation: 
1. Either of the Contracting States may grant pardon, amnesty or commutation of the sentence in accordance with its domestic law, giving immediate communication thereof to the other State.
2. The Receiving State, after being informed of one of the above measures of clemency, shall immediately enforce it in compliance with its own laws.

Since these events never really occurred, we can only speculate but it is very likely that after conviction and appeals, the government of India would have agreed to the immediate transfer of the prisoners back to Italy under this arrangement. In that event, articles 9(3) and 11(1) would be pertinent. The first possibility, unlikely but still existent, is that this incident not being actionable under the laws of Italy, India would have been persuaded under art.9 (3) to consent to reduction of the sentence to time already spent in jail. The second and more probable course would have been for the President of Italy to have pardoned them. Either way, given the strong public belief in that country in the innocence of their soldiers, it is unlikely that the marines would have spent any significant amount of time behind bars. Of course, there might still have been outrage in India if the media had gotten wind of it but the government would have had less explaining to do than at present. Moreover, since it would all have been perfectly legal and above board, few hard feelings would have been caused in the higher echelons of either establishment. But it must be noted that the outcome in either instance would have been the same – the marines would probably have returned home and been released subsequently albeit with a delay of a year or two. In that sense, their failure to return may have actually saved us the expense of a trial (it is still possible that we might end up having a trial if only to declare them proclaimed offenders) and further appeals that would have otherwise inevitably followed.

By refusing to honor a stated commitment, the Italian government has brought dishonor upon itself and created a rift between the two states. While a diplomatic response is therefore called for, the Indian public need not overreact given these realities as, I suspect, their actions are going to hurt them more than us in the long run.

Future Course
That brings me to the last part of this long essay. What is to be done now? India has already downgraded its relations with Italy by not appointing a new ambassador. Daniel Mancini should now be expelled and curtains brought to bear upon this saga….for now. Prosecuting the ambassador is an unwarranted exercise which will needlessly create more problems for us than them. By violating the Vienna Convention on Diplomatic Relations, 1961, India will lose the moral high ground of having acted lawfully not to mention create apprehensions in the minds of other states about the nature of our system, the authority of its government, its willingness to respect international norms and the risks to the liberties of diplomats who serve here. Sending foreign under-trials on home visits to cast votes is as incomprehensible as demanding affidavits from diplomats without thought given as to their enforceability. The Supreme Court should not now compound its misguided humanitarian quest further with illegal orders to detain diplomats in order to avenge any perceived injury to its pride. It is time to let go of the matter and leave it to the Executive branch to deal with the offending state and its officials using the various means at its disposal.

That said, a reduction in ties should not be the last word on the subject. To avoid a detrimental impact to anti-piracy operations in our waters, India needs to sit down with the European states and other nations operating there to reach amicable settlement(s) on this issue. Joint investigations, tribunals, corpus fund(s) for compensation and other solutions can be considered. It must also build consensus domestically to incorporate suitable changes in domestic law. Now that the immediate crisis has come to an unexpected end, the goal should be to prevent the next one. Only time will tell us whether UPA-2 will show the necessary will and creativity to see it through.

Update: Harish Salve, in his interview with Karan Thapar, appeared to indicate that the SC order holding that the Italian marines could be tried in India subject to article 100, UNCLOS (which simply states: “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State”) would have, had they remained in India, provided a way out. I am not privy to any inside information that he may have but based on the public facts, this may have been a possibility only if the Union government managed to reach an agreement with the government of Italy promising not to prosecute them here (probably in exchange for a commitment to follow up the matter in that country itself).  Failure to reach such an understanding so far, while no guarantee of what the future might have held, does lean in favor of a continued status quo. The government would have also had to convince the Indian courts and thereby the Indian public of this arrangement. There may well have been challenges to this both from within and outside, entailing as it would have, a complete U-turn of the official position publicly held so far, a move fraught with political implications.  Thus, while the prospect surely existed, I continue to remain skeptical of its coming to fruition.

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