India’s pragmatic decision not to invoke its anti-piracy law against two Italian marines accused of killing two Indian fishermen off the Kerala coast in February 2012 sets the stage for some tangible judicial progress in the case. Italy’s diplomatic pressure, especially a dramatic move to recall its Ambassador in New Delhi for consultations, may have spurred the government to make up its mind after considerable dithering. Ultimately, the decision is reasonable as it is difficult to characterise the shooting, which happened on the basis of the impression that the fishermen were pirates, as an unlawful act that threatened navigation security. For far too long, the legal process has been delayed, initially on the question of jurisdiction and later on whether the Centre should allow the National Investigation Agency to proceed against the marines under the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 — which prescribes the death penalty for those causing death during an act of violence against any ship or vessel. The NIA, which has a charge sheet ready and was waiting only for the outcome of the petition before the Supreme Court, may have to rework the final report, as SUA has been dropped and fresh penal provisions may have to be incorporated. Having given an assurance against awarding capital punishment earlier, it would have been unacceptable for India to apply a law that provides for mandatory death sentence.
The delay itself was due to a legal dilemma that the NIA faced. The Act that gives statutory status to the NIA has a schedule of offences it can investigate, and SUA is one of them. Further, the shooting incident took place in the Contiguous Zone, bringing the matter into the realm of maritime security and conferring the requisite jurisdiction to the agency. Without SUA, the NIA would undoubtedly be handicapped in its prosecution. Invoking the law, on the other hand, was unpalatable for Italy, as it felt that it will amount to classifying the country as a “terrorist state”. The next legal battle is already on, as the marines have now challenged the jurisdiction of the NIA to prosecute this case, and the court will hear the matter shortly. The process would be more purposive if this aspect is not actively pursued, as the NIA took up the probe only after the Supreme Court ruled that only the Union government had the jurisdiction to investigate it, and not the Kerala police. What is required now is an expeditious trial and a tangible outcome and not further rounds of legalistic hair-splitting. The right balance should be struck between bringing about a sense of closure to the victims, and maintaining cordial diplomatic relations.