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Updated: April 21, 2012 09:38 IST

Amid Centre's flip-flop, Court may let Italian ship leave

Special Correspondent
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Italian marine Massimiliano Latorre hugs his sister at the central prison in Thiruvananthapuram on Friday.
AP Italian marine Massimiliano Latorre hugs his sister at the central prison in Thiruvananthapuram on Friday.

The Centre tied itself in knots on Friday, telling the Supreme Court that India had no jurisdiction to detain an Italian ship involved in the shooting deaths of two Indian fishermen off the coast of Kerala, only to clarify several hours later that the senior legal official who made this dramatic claim on its behalf had given his personal opinion.  

Additional Solicitor-General Harin Raval submitted before a Bench of Justices R.M. Lodha and H.L. Gokhale that the Italy-flagged tanker, Enrica Lexie, was not in Indian waters when the shooting incident occurred.

Echoing legal arguments made by the Italian government — which wants the two marines now facing serious charges in a Kerala court repatriated to face trial back home — he said the ship was in international waters 20.5 nautical miles off the Indian coast whereas India's territorial jurisdiction extended only up to 12 nautical miles. The ASG's assertion directly contradicts statements by high officials in Kerala as well as the Ministry of External Affairs, which rejected Rome's claim that an Indian court had no right to try its marines for the shooting.

“Are you saying that Kerala police have no jurisdiction to probe?,” the Bench asked the ASG. “It is very unfortunate and it can't be acceptable.  How can you take such a stand, when two Indian citizens have been killed?” it said. The ASG insisted this was the Centre's stand. The Bench then indicated that the detained ship be allowed to leave India after it imposed certain conditions.  

Later in the day, however, the Ministry of Shipping issued a press release claiming that Mr. Raval had spoken without the Central government's consent when he said the Kerala police had no jurisdiction to detain the Italian ship. “The Central government has not filed any affidavit in the matter,” it stated, “nor any such instructions were given to the government counsel.”  “There is no difference of opinion between the Centre and the State government.”

South Block officials told The Hindu that the Shipping Ministry issued its clarification after the MEA protested the stand taken by the ASG in court. Mr. Raval was not immediately available for comment.

 On April 10, the Supreme Court had issued notice to the Centre, the Kerala Police, Cochin Port Trust and others on a special leave petition from the owners of Enrica Lexie challenging a Kerala High Court order refusing to allow the ship to leave port.

When counsel for Kerala said the ship should not be allowed to proceed, the court wondered whether the property from where the offence was committed could be attached when it was not involved in the commission of the offence.

The Bench, while adjourning the hearing to April 30, directed that fresh notice be issued to the wife of one of the victims in the shooting incident.

Earlier, the Kerala High Court had directed the State police to allow the ship to leave India on its furnishing a bond for Rs. 3 crore and giving an undertaking before the Deputy Conservator, Cochin Port Trust, that the vessel, master, and crew would be produced as and when required by the authorities concerned. However, a Division Bench stayed that order acting on appeals filed by a legal heir of one of the killed fishermen.

The ship's owners contended that the High Court ought not to have entertained a writ petition as it was not maintainable. It said the two persons responsible for the death of the fishermen were arrested and the firearms used were also seized from the ship. The forensic report had clearly stated that the ship was not involved in any way in the incident. Since the vessel was carrying over one lakh tonnes of oil, its detention was causing a loss of about Rs. 200 crore. The SLP sought quashing of the impugned order and an interim stay of its operation.  

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I wish to clarify one more thing. EEZ means Exclusive Economic Zone
where a country has the right to do Economic activities for the benefit
of the country like drilling for gas , oil etc, which extends up to 200
n miles . Criminal jurisdiction ends at 12 n miles.Here we should understand one thing is that this criminal act was carried out by the mariners not the ship.( Anyway marines are with Indian Govt.- for judiciary to decide about them.) When a ship does a criminal activity like hitting a fishing boat ,(e.g. ship Prabhudaya case) then the ship could be arrested i.e. master of the ship could be held-as master of the ship represents vessel in legal term.
In this case the ship should be allowed to proceed, after sufficient guarantee/ money - as security- has been deposited with the court. Ship has other employees on board. Company has to pay them every month. If the ship remains Idle, it is just killing the company and it's employees.

from:  krishnaraj s
Posted on: Apr 21, 2012 at 21:51 IST

R S Vasan- and are you an expert in International Maritime Law? Do you
have any independent and credible evidence that the shooting occurred in
India's EEZ? It might be that the ASG had spoken the truth, that the shooting
occurred beyond Indian jurisdiction and that the Kerala govt may be in a
very troublesome spot here. In that case this amounts to an illegal
prosecution to win votes in an election. Hope that the truth comes put
soon.

from:  Aritra Gupta
Posted on: Apr 21, 2012 at 19:15 IST

The whole issue should have been settled out of court through diplomatic channels, getting heavy compensation for the families of the fishermen killed. Apparently going strictly by law, the case of the Kerala government is on a weak wicket or in a manner of speaking the case stands literally on waters. However, there is no justification for the strange stand taken by Rawal. Was he speaking for the Indian government or Italian government? What a mess he has created! It is indeed intriguing too. Governance in India under this Sonia Gandhi-led UPA is in a shambles! God knows what more is in store for the hapless Indian people. RC Rajamani, New Delhi

from:  RC Rajamani
Posted on: Apr 21, 2012 at 16:07 IST

The law is an ass and it can be interpreted in any which way as the
ASG has chosen to do by not understanding the gravity of what he is
saying.The more one looks at it, the more clearer it becomes that it
could well have something with the elections. The simple truth here and the way it is to be interpreted is that this happened in the Exclusive Economic Zone of India where India has full rights for harnessing the living and non living resources. Indian fishermen have full right to carry on the legitimate fishing . The
shooting is an interference in the legitimate business of our fishermen. period. So those who have interfered by shooting and causing death to our fishermen must be put in the jail and tried for interfering and causing death by their actions. Nothing more and nothing less.

from:  R S Vasan
Posted on: Apr 21, 2012 at 13:14 IST

whether we like it or not, it is a fact that as per international law,
of which India is a signatory, the criminal law of a country applies
only up to 12 n miles from coast. Hence, as the shooting act has
happened more than 12 n miles from the Indian coast, our law will not
apply (and hence Indian police can not interfere in the matter). Those
Italian marines can be tried for this criminal act, only in the country
of registry of the ship, not in India. This is a fact.

Now, our politicians had made so much statements against the Italian
marines, as the incident has happened during piraavom election so as
to garner votes, now they can not contradict themselves.

This case will go like Vodafone case, where SC said that there is no
law in India to tax vodafone for overseas agreements. Politicians
should have enacted proper law in the parliament before going to tax
vodafone. Similarly, being a signatory of international law, we have accepted
our criminal jurisdiction up to 12 n miles.

from:  krishnaraj s
Posted on: Apr 21, 2012 at 13:12 IST

The stand taken by Harin Raval, ASG in the Supreme Court in EnricaLexie case that India had no jurisdiction to detain an Italian ship involved in the shooting deaths of two fishermen is strange. First he said that he was appearing as an ASG in the case meaning thereby tat he was appearing on behalf of central government , later due to remarks of the court and fearing a political fall out in Kerala he backtracked from his previous stand he said that he was xpressing his personal views in the court. In my view the ASG when he appears in the court he represents Govt. of India. His views will be reflective of the views of central government. There is no place of personal views in the court unless asked for especially by the court.

from:  BIMAL CHANDRA JHA
Posted on: Apr 21, 2012 at 11:55 IST

Is the ASG am independant entity or a govt servant? Is there any unified understanding of the issues they are deliberating about? Could this be the case of Italian money talking through ASG?

from:  NANI
Posted on: Apr 21, 2012 at 10:46 IST

There may be reasons beyond layman's comprehension about the compelling reasons for the release of the Italian ship. I do not want to make inferences, but if the ship is released and the marines despatched off to Italy, it will open a pandora's box. The central Govt should take the case as per the laws of the land, not on political or religious pressures

from:  jayachandran menon
Posted on: Apr 21, 2012 at 10:14 IST

the shifting stand of the government has made the solicitor general in
an embarrassing position.

from:  ssubramanyan
Posted on: Apr 21, 2012 at 09:52 IST

From the very beginning the shoot out incident was taken 'carelessly' by
both governments. One would wonder an ASG can express 'personal' opinion
in a case like this, which involves international laws and
conventions.Any 'poor' briefing given to an ASG should have contained
the crucial information on the site of the crime. Pity on the Indian Law
establishment and the BOSSES who 'manage' it.

from:  anish
Posted on: Apr 21, 2012 at 09:35 IST

Looks like indians life has no value and of an indian fisherman...not at
all. Kerela police says the incident took place in indian waters ans ASG
says it wasn't indian waters. And after everything government says it
was his personal opinion. Italian government are backing their marine
even when they are guilty and Our government doesn't care even when our
fishermen were innocent...

from:  Dinesh Kumar
Posted on: Apr 21, 2012 at 09:19 IST

SC wondered 'Are you saying that Kerala police have no jurisdiction to probe?,” the Bench asked the ASG. “It is very unfortunate and it can't be acceptable. How can you take such a stand, when two Indian citizens have been killed?'. This incident had happened beyond 12 nautical miles of Indian shore up to which India has full jurisdiction. The question is whether it has jurisdiction beyond that and to what extant. If the citeria only is that 'two Indian citizen have been killed' then should it also applicable if it happens in a foreign country? The question is where it happened and whether India has jurisdiction. ASG has told SC that India has no jurisdiction. He has not told anything about conducting a trial and punishing the culprits. Supreme Court has correctly observed about the logic of detaining the ship. In English Manorama on line version it is given that SC has asked if the shooting has happened from a train whether the train is to be detained. To me it is illegal.

from:  vkguptan
Posted on: Apr 21, 2012 at 09:16 IST

Shocking case of vacillation at the highest level of governance! It
seems clear that the ship was indeed in the international waters.
Clearly due to lack of sensible leadership Central Government was unable to firmly handle the situation instead buckled unprofessionally to the fancies of Kerala street politics, sending out unmistakable alarming signals that MMS Government can be played around with impunity. Fortunately our justice system is the saving grace, calling a spade a spade without mincing words.

from:  N.G. Krishnan
Posted on: Apr 21, 2012 at 09:09 IST

This is the case of Indian anarchy. There is no coordination even between govt departments. Is the ASG am independant entity or a govt servant? Is there any unified understanding of the issues they are deliberating about? Could this be the case of Italian money talking through ASG?

from:  Ayyappa
Posted on: Apr 21, 2012 at 08:12 IST

This is the second time government lawyers have put their own opinion in front of
the Supreme Court as opinion of the government. First case was that of the Assistant Attorney General representing governments views on gay rights. This is the second case in which Assistant Solicitor General has put his own opinion that the the ship was in international waters. These two incidents raise question about the competency of the Law Department and its management. It looks like there is no one in charge and no one enforces government policies on the lawyers who supposedly represent the government.

from:  Mohammad Imran
Posted on: Apr 21, 2012 at 08:07 IST

Is this all tied up with the recent elections ? Kerala govt has a very narrow majority and it could not afford to lose the Piravom bi-election. Now that elections are over and Central govt shows the true color. How can the solicitor general can make his personal comment when he is representing Govt ?

I hope to see a day when Kerala have ministers and MPs who pursue Kerala's improvement and interests ardently (not like the current people).

from:  Jcheriant
Posted on: Apr 21, 2012 at 05:10 IST

Can't the govt see one single affair through without bungling it?
However this time it would be even more embarrassing if it is
established that the Marines were indeed in international waters when
the shooting took place. Let me make my stand clear. It is of course atrocious that two Italian marines shot dead Indian fisherman who were engaged in their legitimate trade. However that alone cannot be a justification for the Marines being brought over to India and tried for the murder they committed. What must be established is whether they were in Indian jurisdiction when they murdered our people. If they were, they should rot in an Indian jail. If they weren't, then this becomes an illegal show of muscle by our govt. As the country of Gandhiji, we should be fair to both sides even while pursuing justice. In this case, that implies following due process, not converting the Indian judicial system to a kangaroo court to renew the govt's flagging nationalist credentials.

from:  Aritra Gupta
Posted on: Apr 21, 2012 at 04:35 IST

“It is very unfortunate and it can't be acceptable. How can you take
such a stand, when two Indian citizens have been killed?” Justice should not depend on whether Indians are killed or Italians. "Stand" should not change based on nationality and race. If it is right that at 20+ nautical miles, it is international, let it be so. Not to include our sentiments and emotions.

from:  Kiran
Posted on: Apr 21, 2012 at 02:43 IST
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