The criticism of the orders of the Supreme Court interdicting the Italian Ambassador from leaving India, (“Diplomatic immunity in Peril” by Anup Surendranath and Shreya Rastogi - The Hindu OP-Ed, 20.3.2013) does not reflect a correct or pragmatic approach. It is fortunate that marines have come back. They should now undergo the due process of law. However, it seems that a critique of the article is still relevant since it contains certain erroneous postulates both in terms of legal principles and in terms of diplomacy.
One fundamental fallacy in the write up seems to be the mechanical adoption of the decision in Cango v. Balgium (2002). In Cango there is no situation of the envoy being party to proceedings of the Court, and obtaining advantage from the court to his fellow citizens only on the basis of such assurance. Again, in Cango, there is no legal situation where even the question of jurisdiction is left to be decided by the Special Court constituted for that purpose on the basis of an international convention. In the English decision cited i.e., Propend Finance Pty Ltd and Anr.(1997) the England and Wales Court has not considered the question of host country’s power to withdraw the privileges and immunities. As our Supreme Court held in another context, “there are no precedents on facts” (2003 (1) Supreme Court Cases 289).
The present issue related to Italy’s earlier decision to withhold the marines could not have been analysed by segregating it from the basic judgment of the Supreme Court dated 18.1.2013 on the marines issue and on the question of jurisdiction. In Republic of Italy v. Union of India (AIR 2013 SCW 836 =2013 (1) KLT 367 SC) the Supreme Court examined the scope and ambit of the United Nations Convention on the Laws of the seas (UNCLOS) and the Maritime Zones Act, 1976 and directed constitution of the Special Court to try the marines. Para 109 of the judgment says that even the question of jurisdiction could be decided afresh, by the Special Court by taking into account the arguments of both the countries. It is quite doubtful whether Italy could get such an objective and dispassionate judicial verdict from any other democratic country, in an identical situation.
It is this judgment of the Supreme Court and not a mere undertaking that was flouted by the initial Italian decision to withhold the marines. Ambassador Daniele Mancini became instrumental to the bad State of affairs that prevailed. Breakers of law who gave the undertaking to abide by a judgment by inviting the judgment and who gave assurance for production of the accused cannot claim legal immunity, even when there is no express waiver.
If the marines did not return, the Ambassador’s action would have amounted to breach of obligations arising under the Vienna convention. Article 41 of the Vienna convention imposes a duty on the member country to abide by the laws of the party nations. It is fundamentally erroneous to assume that an Ambassador can flout the laws of the country where he is officiating, in the guise of diplomatic immunity. In fact, our legislation on diplomatic relations has taken note of it. Section 4 of the Diplomatic Relations (Vienna Convention) Act, 1972 reads as follows:
“Restrictions on privileges and immunities:- If it appears to the Central Government that a State which is a party to the Vienna Convention on Diplomatic Relations, 1961 is in breach of its obligations arising there under or, that the privileges and immunities accorded to an Indian Mission or members thereof in the territory of any State which is a party to the Vienna Convention on Diplomatic Relations, 1961, are less than those conferred by this Act on the Diplomatic mission of that State or members thereof, the Central Government may, notwithstanding anything contained in this Act, by notification in the Official Gazette, withdraw such of the privileges and immunities so conferred from the diplomatic mission of the State or from members thereof as may appear to the Central Government to be proper”.
Therefore, the Central Government could have withdrawn the privileges and immunities which are neither unconditional nor absolute. The “object and reasons” under section 4 of the Act says that its very purpose is “to withdraw any privileges and immunities conferred on the diplomatic mission of a foreign State or members thereof” when it appears to the Government of India that a country has breached the Vienna concord. Thus a “reciprocal or retaliatory action” is inbuilt, as seen from the object clause beneath Section 4. Section 11 of the Act only says that the notification withdrawing the immunity only needs to be placed before the Parliament at a later stage and not even legislation is required for approving the notification. Even a subsequent modification or annulment of the notification will not invalidate the action taken based on the notification. Issuance of such a notification would have put an end to the speculations on the subject and it would have provide a foundational logic for the contempt proceedings in the Supreme Court which is constitutionally guaranteed as per Article 129. The authors seem to think that the scope for further proceedings is confined to the question of waiver of immunity stipulated in Section 5 of the Act which of course, is debatable. The point however, is that there was no requirement of a waiver when a withdrawal of immunity under Section 4 was not only possible but an imperative in the scenario created. The authors have approached the issue based on a wrong premise that the whole exercise of the Supreme Court could only be based on a presumed waiver and nothing else. This proposition is neither correct nor accurate.
In my view, the breach committed by the Italian Ambassador in the event of the marines staying back in Italy would have amounted to offences against lawful authorities and public justice in the country as enumerated under Chapter X and XI of the Indian Penal Code. It would not have been something committed on the high seas and as such there would be no jurisdictional dilemma. The Vienna Convention does not empower the envoys to demean or ridicule the judicial institutions of other countries or to challenge the laws of other republics. Paradoxically, the article suggests such an unacceptable proposition, at least by implication.
The authors further say that the constitutional claim (for initiation of contempt proceedings) by invoking power under Article 129 is doubtful. They argue that the precedents established by the US Supreme Court and followed in Ashik Ahmed v. AHM Sadiqul Hoque (2002) would stare at the Indian Supreme Court in the matter of contempt jurisdiction. Here again, there is no identity of facts justifying the application. Also it has no precedential value in the present Indian context. The authors themselves fairly admit that the “Indian Supreme Court is yet to clarify the issue”. It is well settled that Supreme Court’s contempt power under Article 129 cannot be abridged or restricted by any statute (see the decision in Delhi Judicial Service Association v. State of Gujarat AIR 1991 SC 2176). It is even otherwise fallacious to think that the scope of constitutional power of the Indian Supreme Court in the matter of contempt proceedings against the envoys should depend upon the views of the foreign courts in different fact situations. Such arguments would nullify the spirit of egalitarianism and republicanism, which India could not have afforded when she was deceived and fooled.
It is therefore clear that Italy’s earlier decision was neither sound nor feasible. The Italian government realised it. The fragility of the defence of diplomatic immunity stands exposed by the wisdom that Italy has now shown.
(The author is a lawyer at Kerala High Court. firstname.lastname@example.org)