It is not everyday
that a seemingly procedural legal question of jurisdiction turns into an
inflammatory international incident. When the incident involves two nations
that have never shied away from the dramatic, there is always the risk that the
ensuing hyperbole will distract attention from the viability of options that
each nation has. It is thus imperative for the Government of India to both
recognise the legal complexity of the matter involving the killing of two
Indian fishermen by two Italian marines 20.5 nautical miles off the coast of
Kerala, as well as to respect the rule of law while acting firmly to secure its
national interest. Looked at closely, though there is much in the law that has
been seemingly intractable so far, there is much else that affords scope for
decisive diplomatic action.
THE
KEY ISSUE
The key legal issue at
the centre of the original controversy is which State, India or Italy, may
legitimately exercise jurisdiction over the dispute. To answer this involves a
determination of three further questions: The interpretation of the applicable jurisdictional
provisions of the United Nations Convention on the Law of the Sea (UNCLOS) to which both India and Italy are parties; the extension
of domestic criminal law to the Contiguous Zone, an area adjacent to the territorial waters extending up to 24
nautical miles from the coast,
and the issue of sovereign immunity of the Marines, which has traditionally
been regarded as an exception to the exercise of territorial criminal
jurisdiction. The Supreme Court, despite its order on January 18, 2013, has not
ruled conclusively on these matters and it is open to the petitioners to
challenge India’s jurisdiction at trial.
In addition, the order
of the Supreme Court on February 22, 2013 allowing the Marines to return to
Italy must be recognised as an unprecedented order dealing with an
unprecedented situation. Unlike the Kerala High Court decision, which allowed
the Marines to travel home for Christmas by way of relaxing their bail
conditions, the Supreme Court order was passed in a legal vacuum. Given that the
Court found that the Kerala courts had no jurisdiction and the Centre had not
yet set up a special court, the order to allow the Marines to return for four
weeks was an equitable relief, based on good faith and the solemn assurances of
the Italian Ambassador to India.
The legal correctness
of both orders of the Supreme Court and the wisdom of actions of the government
till date are a subject of intense legal debate. At this time however, as the
Government of India mulls next steps, it is imperative that unlike in these two
instances, it henceforth uses the extant legal complexity and the unprecedented
nature of the situation to its advantage. Doing so will allow it to secure two
key interests: Justice for the fishermen and restoring the bruised dignity of the
Supreme Court of India.
A
QUESTION OF JUSTICE
At the heart of this
complex diplomatic and legal row lies a human tragedy. Fishermen Valentine and
Ajesh died while plying their trade off the coast of Kerala. How they died,
whether they were killed and who killed them are questions which can only be
conclusively answered at a trial. The path to bringing the accused to justice
in India consequently recommends itself to the Central government: proceed with
the trial of the marines as per the order of the Supreme Court, as if they were
present.
This involves
expeditiously setting up a Special Court, investing it with the staff and
resources necessary for a fair trial, summoning the accused, and appointing
competent legal aid lawyers to defend them if they are unwilling to appear and
co-operate with the court. Such a step will be crucial for three reasons.
First, it will reiterate the Government of India’s stated position in both the
Kerala High Court and the Supreme Court that India is jurisdictionally competent
to conduct the trial in this case. This is diplomatically vital for India to
demonstrate a consistent position, asserting its own jurisdiction over the
dispute. Second, it is essential to ensure that the Supreme Court judgment of
January 18, 2013, authoritatively stating that it is the Union of India that is
competent to try this matter, is respected. Allowing a judicial order of such
importance to become a dead letter would be a serious breach of the rule of
law. Third, beginning such a trial would provide a clear legal basis to declare
the accused a ‘proclaimed offender’ under Section 82 of the Code of Criminal
Procedure. This would set the legal foundation for an international arrest
warrant against the accused, restricting their right to travel outside Italy,
presumably a key facet of their work as naval officers. Justice to the
fishermen and their families in the current circumstances would remain illusory
without a trial court making at least these preliminary determinations, thereby
setting the stage for a final determination of guilt.
PROSECUTING
FOR CONTEMPT OF COURT
Getting the accused
back to face trial in India must be sought through alternative, legally tenable
means. A key avenue is to sue the Italian Ambassador to India, Daniele Mancini,
for contempt of court. If the Marines do not return by March 22, when the four
weeks granted by the Supreme Court expires, the Ambassador would be breaching
his obligation, to ensure their return to India, in a sworn affidavit in his
official capacity before the Supreme Court, thereby committing an egregious act
of contempt.
It is thus imperative
that the Government of India files a contempt petition before the Supreme Court
at the appropriate time. It has been widely suggested that filing such a
petition may be meaningless because the Ambassador enjoys diplomatic immunity.
While superficially the objection seems weighty, a deeper legal analysis
suggests otherwise. First, the power to punish for contempt itself is a
constitutional power vested in the Supreme Court by virtue of Article 129. On
the contrary, the principle of diplomatic immunity, well-recognised
internationally in numerous conventions, is made applicable in India by Section
2 of the Diplomatic
Relations (Vienna Convention) Act, 1972 (Hereinafter “Act”). This Section, which gives certain provisions of the Vienna Convention on
Diplomatic Relations, 1961, (Hereinafter “Vienna
Convention”) including the principle of diplomatic immunity, domestic
application, starts with a non-obstante clause that implies that it overrides
other laws. However it is a
fundamental legal fallacy to contend that such a statutory law can override a
constitutional power. It is an equal
fallacy to contend that it overrides the Constitution on the basis of being
customary international law, applicable to all nation states. India’s
constitutional scheme is, in principle, unambiguously dualist, i.e. for
international law to be binding, it requires domestic incorporation. This is
especially so when the international law in question ‘modifies the laws of the
state’ [Maganbhai
Ishwarbhai Patel v. Union of India, (Supreme Court, 1969)].
Second, the Republic
of Italy, by approaching the Supreme Court of India through a writ petition
itself, has arguably waived its claims to any sovereign immunity in respect of
this matter. According to Section 5 of the Act
read with Article 32 of the Vienna Convention, sovereign immunity can be waived
in respect of counter-claims in matters where proceedings are initiated in a
domestic court by a diplomatic agent. In Indian National
Steamship Company v. Maux Faulbaum,
the Calcutta High Court held that the Government of Indonesia in approaching
the Calcutta High Court for relief had waived its sovereign immunity.
Consistent state practice in other jurisdictions supports this view that when a
state itself institutes proceedings before a foreign national court, it
relinquishes its immunity. Italy, and by necessary implication its Ambassador,
cannot, in law, be allowed to have its cake and eat it too.
Finally, Section 4 of
the Act can be used by India to withdraw certain privileges and immunities, if
it appears that Italy is in breach of its obligations under the Vienna
Convention. Under Article 41 of the
Vienna Convention, it is a duty on those enjoying privileges and immunities to
respect the laws and regulations of the receiving (host) state. There is little doubt that by falsely swearing on
affidavit before the Supreme Court of India, and brazenly disrespecting its
order, the Italian Ambassador has shown wanton disregard for the laws and
regulations of India. Moreover, such disregard has fundamentally tarnished the
dignity of the Supreme Court of India. In these circumstances, it would be
entirely permissible to withdraw Italy’s, and by consequence, its Ambassador’s
immunity from jurisdiction of Indian courts in this matter.
Each of these, and
other legal options that exist at this time, must be analysed carefully by the
Government of India, in terms of its strategic value, political viability and
international repercussions. The law governing the substantive dispute and
possible next steps is undeniably complex. The Government of India must view
this complexity as an opportunity and act decisively to uphold India’s national
interest.
(Arghya Sengupta is a Stipendiary Lecturer in
Law at Pembroke College, University of Oxford and Founder, Vidhi Centre for
Legal Policy, New Delhi
Neha Jain, Associate Professor, University of
Minnesota School of Law, provided inputs on questions of international law)
