The privilege Daniele Mancini enjoys under the Vienna Convention, personally and as an Ambassador, is absolute. The marines issue should be resolved politically
The Supreme Court’s order restraining the Italian Ambassador from leaving India and the possibility of contempt proceedings against him are without any basis in law. Undoubtedly the Republic of Italy did file a writ petition through the Ambassador and he did submit an affidavit stating that the marines would return to India. However, those facts along with Italy’s Note Verbale that the marines will not be returning do not provide sufficient legal grounds for action against the Italian Ambassador. The order restraining the Ambassador and the potential contempt of court proceedings are a serious breach of India’s obligations to provide diplomatic immunity under the Vienna Convention on Diplomatic Relations, 1961.
Personal inviolability
Article 253 of the Indian Constitution requires Parliament to introduce a legislation to give effect to an international agreement. In light of this provision, Parliament enacted The Diplomatic Relations (Vienna Convention) Act, 1972 to give effect to India’s obligations under the Vienna Convention. Within this legal framework, two questions arise in the current context: (i) Was there sufficient legal basis for the Supreme Court’s order restraining the Italian Ambassador from leaving the country?; (ii) Can contempt proceedings be instituted against the Italian Ambassador personally for not adhering to the commitments made in the affidavit submitted to the Supreme Court?
The Supreme Court’s order restraining the Ambassador goes against the guarantee of personal inviolability of diplomatic agents. Article 29 of the Vienna Convention states that a diplomatic agent shall not be liable to any form of arrest or detention and the receiving state shall take all appropriate steps to prevent any attack on his person, freedom or dignity. While it is clear that in this case, Daniele Mancini did act in his official capacity while submitting the affidavit, Article 29 would protect him from any form of arrest and detention even if his actions were of a personal nature. It is precisely to avoid holding a diplomatic agent responsible for the acts of the sending state that Article 29 provides protection from any form of arrest or detention.
On the question whether the order restraining the Italian Ambassador from leaving India amounts to detention under Article 29, the judgment of the International Court of Justice in Congo v. Belgium (2002) is instructive. The ICJ noted that measures that raise the fear of arrest even if they do not in fact interfere with the actual fulfilment of diplomatic activities would go against the guarantee of personal inviolability under Article 29. The order of the Supreme Court restraining the Italian Ambassador from leaving India and the subsequent alert issued to all airports by the Ministry of Home Affairs goes against this fundamental protection granted to diplomatic agents.
Immunity and waiver
Governing the framework of diplomatic immunity is a fundamental commitment to the principle that diplomats in foreign countries cannot be held personally responsible for acts of the government they represent. Article 31 of the Vienna Convention provides that a diplomat shall enjoy immunity from the exercise of criminal and civil jurisdiction. The criminal immunity that Daniele Mancini enjoys, both personally and as an Ambassador, is absolute. There are a couple of exceptions to his civil immunity but those have no application in this case. In essence, diplomatic agents can literally get away with murder unless there is a waiver of diplomatic immunity.
The Supreme Court in the hearing on March 18 clearly does not dispute the position that in normal circumstances Daniele Mancini would have diplomatic immunity. However, the Court seems to be seriously considering the argument that the Italian Ambassador has waived this immunity. Those advocating the position that the Italian Ambassador has waived his diplomatic immunity rely on two acts of the Ambassador. They first cite the fact that the writ petition filed on behalf of the two marines was filed through the Ambassador and secondly, highlight the affidavit filed by the Ambassador assuring the Supreme Court that the marines would return. However, neither of these two acts is sufficient to establish a waiver of immunity. The Vienna Convention does recognise the possibility of a waiver of immunity under Article 32. However, under this provision, immunity has to be expressly waived by the sending state and there is no possibility of inferring a waiver of immunity from the acts of its diplomatic agents. It is evident that the Italian government has not sent any such express waiver.
The argument has also been raised that this position on waiver has been altered by the legislation Parliament introduced to enforce the Vienna Convention. That claim is true to the extent that the 1972 Act recognises that, along with the sending state, the Head of the Mission can also waive immunity. However, what the 1972 Act does not alter is the requirement that there must be an express waiver of immunity. There has been no express waiver of immunity in the current case either by the Republic of Italy or its Ambassador to India.
Participation in proceedings
The filing of a writ petition through the Ambassador on behalf of the marines cannot be considered a waiver of immunity. In all proceedings so far, it has been Italy’s position that India lacks territorial jurisdiction to try the marines along with the claim that the marines are protected by sovereign immunity. It would lead to absurd consequences if the argument that participation in proceedings to question jurisdiction is construed as waiver of diplomatic immunity. Similarly, reneging on the assurance given to the Supreme Court in his affidavit cannot be the basis for instituting contempt proceedings against the Italian Ambassador. Providing such an affidavit does not meet the requirement of an express waiver under Article 32(2) of the Vienna Convention. Courts in other parts of the world, like the England & Wales Court of Appeal in Propend Finance Pty Ltd & Ors v Sing & Anr (1997), have held that an undertaking given by a diplomatic agent in a court proceeding would not amount to an express waiver of immunity in contempt proceedings that may be initiated. However, under Article 32(3) of the Vienna Convention, immunity cannot be claimed when a counter-claim is filed in a proceeding initiated by the diplomatic agent. To make that exception to diplomatic immunity applicable in this case, any potential contempt of court proceeding against the Italian Ambassador will have to be viewed as a counter-claim in the writ petition filed on behalf of the marines. However, the law on contempt of court in India does not permit such a reading. According to the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, the contempt of court proceedings are separate and independent of the parent matter.
Constitutional claims
Article 129 of the Constitution empowers the Supreme Court to punish for its contempt. It has been argued that this constitutional provision must prevail over diplomatic immunity as Section 2 of the Diplomatic Relations Act mentions the overriding effect of the Vienna Convention over ‘any other law’ which would exclude the Constitution. While the Indian Supreme Court is yet to clarify this issue, the position in the United States is well settled. In a case where the domestic help of a diplomat from Bangladesh sought to enforce his right against servitude under the Thirteenth Amendment, the United States District Court (Southern District of New York) in Ashik Ahmed v AHM Sadiqul Hoque (2002) followed precedent established by the U.S. Supreme Court to hold that constitutional claims would not trump diplomatic immunity. The Court held it was a doctrine created not solely by a congressional enactment but from international treaty obligations, entered into by the executive branch with the consent of the Congress. The Government of India is a signatory to the Vienna Convention by virtue to powers vested by the Constitution, which has then been made a part of our domestic legal system as per the procedure provided in the Constitution.
Of course, the actions of the Italian government demonstrate wanton disregard for the authority of the Supreme Court and are a breach of faith and diplomatic protocol. However, none of that gives either the Government of India or the Supreme Court any legitimate legal recourse against the Italian Ambassador. This issue must be resolved squarely in the political realm. By restraining the Italian Ambassador and contemplating contempt proceedings, the Supreme Court and the Government of India are seeking legal solutions where none is available.
(Anup Surendranath is an Assistant Professor of Law and Shreya Rastogi is a final year law student at National Law University, Delhi)
The government of Italy should have, as a country that enjoyed good relations with India, let the law take it's course and let the Supreme Court arrive at a decision, since it has already petitioned it for jurisdiction. That, the citizens of this country can understand.
But, by falsely stating that the Marines would return and then officially stating that they wouldn't, Italy has challenged India's will to enforce it's laws under its constitution. Now that, this country does not accept.
If one looks beyond a legal tangle, the broader issues here is that of a country going back on it's own undertaking. Especially when the marines in question were treated with dignity during their detention.
I am not sure how this will be finally handled in days to come... but Italy has definitely lost it's standing as a respectable nation in the eyes of India and it's citizens... It may not realize this now, but there will be an unseen impact on trade and business for years to come.
Italian Marines are not responsable for shooting Indian fishermans.. ship was in international sea position... line of fire are not compatible with their position into the boat.. calibre of bulletts are different.. your Autorities in Kerala falsified documents... What you want moore...... Indians autorities have not power to put them on trial.... and why Indians social democratic party call the Marines Killer .... this is your politic war against the Central Governement.
I also are in social democratic party in Italy but nevert think to keep your Ambassador likre a prisoner.
I'm really sorry for this situation a for killed Indian fishermans... But do you remember that more then 20 people was killed from USA Air Force Airplane during a stupid and dangerous fly in CERMIS ( Italian Territory) .... But their pilots was on trial in USA not in ITALY... and was considered not colpable... Sorry ma dear but democracy is a serious teme ... and your are not able to understand this
As an Ambassador who can get diplomatic immunity should not have stood as surety Once he does he should face the consequence Why did he not prefer diplomatic channel to settle matters? He cannot have the cake and eat it
Worst case scenario- India will be rapped by the UN/EU
Best case scenario - Marines return as agreed and things go smooth,
ambassador spared of humiliation.
With all your legal jargon, will you please tell me how China would
have acted in similar situation?
That should be our line of action. We Indians are adept in tying
ourselves in knots with our own laws leaving aside the international
conventions. If a countries like Iran and North Korea can have the
gumption to cock a snook, with one sixth of the world population, why
are we still such cowards?
Does Vienna Convention allow / recommed an ambassador to go and stand as a witness in foreign court? India should enact a law that whosoever has immunity cannot be a witness or gurantor. In this case, if Italy claims are true, why it has not gone to ICJ rather than sedning its envoy to SC? it is clear breach and Italy deserves to be treated as Enemy country and all financial transactions have to be abandoned with immediate effect come 22nd March if mariens are not in India
This is a case that involves not just law, but its foundations. In any
contract, when a party enters into a contract in a malicious way or when
it fails to meet its part of the obligations, many rights that inure to
it automatically become void. One can very well argue that Italy
behaved as a rogue State by not meeting its sovereign obligation and
pledge and thus has no right to invoke any immunity to its
representative.
If we allow this event to pass, then it means that every foreign
criminal in India will get a letter from their ambassador and then
leave the country, never to return!
I am not an expert i international law. But in my undersanding, the
ambassador has taken responsibility to bring the marines to court as
and when needed. The marines were specifically granted leave by the
court to go to Italy for Christmas, on the basis that the ambassador
took responsibility to ensure their return.
Given below are extracts from Article 31 of the Vienna Convention:-
1.A diplomatic agent shall enjoy immunity from the criminal
jurisdiction of the receiving State. He shall also enjoy immunity
from its civil and administrative jurisdiction, except in the case
of:(a) ... (b) ... (c) An action relating to any professional or
commercial activity exercised by the diplomatic agent in the
receiving State outside his official functions.
2.A diplomatic agent is not obliged to give evidence as a witness.
____________________________________________________________________
Based on Section 2, the current issue deals with the Diplomat
involving in an act that is outside his duties. Hence under Section
1.3 he can be held accountable. A bit tricky. One might argue that
he gave the affidavit in his position as the Diplomat not as Mr.
Mancini.
I am not a lawer. Will someone with legal expertise challenge my
interpretation please.
I wonder if the authors have thoroughly gone through the Vienna convention.
Viena convention, article 41, clause 1, says "Without prejudice to their priviledges and immunities, it is the duty of all the person enjoying such priviledges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interefere in the internal affairs of that State."
So, what immunity are they claiming for after breaching the laws of this land?
As I was going through the article, I felt that India couldn't do
anything by law in this case, till I came to the last paragraph. Since
Sec. 2 of Diplomatic Relations Act holds our constitution above Vienna
Convention and diplomatic immunity, we must use this to act legally.
I differ with the authors on this point. Just because US Supreme Court
decreed otherwise doesn't mean India has to agree to it. Every country
has its own interpretation of law given the context of country and the
case. Indian Supreme Court wouldn't be subverting any law as it has
been given power to punish for its contempt, by the constitution.
The fact that Italy has betrayed on its promise calls for a tough
stand and strict legal action. And we must set a precedent to avoid
any such behavior by any country in future. If Italy can seek taking
advantage of diplomatic immunity provisions, why can't we act at least
as per given provisions of law.
I sincerely believe that Indian lawyers don't know how other country acts. They are like a frog in a well. Look at the other nations how they oblige international commitments? None cares if it affects and creates domestic problem for their country.All people who write arguments on Italian marine case should write what is the best case scenario for our hon'ble SC to punish Italy govt actions? They shouldn't muddy the water further by providing some examples that supports their argument and shouldn't suggest to act otherwise. I never see a person not patriotic as much as some Indians do for their country.
Our country needs to grow up more and we Indians should be patriotic to hold our nations first in all things.
Completely agree with the authors. Supreme Court's order on Mancini not
to leave India is a clear violation of Vienna Convention 1961. We must
understand an ambassador is just an envoy of the country s/he
represents, and is NOT acting on his/her own. In this case, Mancini has
acted on behalf of the Italian government which changed its stand
later-on. He submitted an affidavit based on the Italian government's
stand. any order on Mancini
will be like shooting the messenger. We might agree or disagree with
what Italian government did, but how Mancini is accountable for it? If
anybody has to be hauled, it has to be Italian Prime Minister, and not
ambassador Mancini.
Respect International law but do not surrender to International law.
International law is a tooth less tiger. Drone attacks by US in Pakistan are found illegal ..... what happened to US or their guys who killed civilians.
If International law is excuse not to prosecute murderers why should it prevail law of land? I do not care.
The international law is best suited to lobby.
Such efforts by any intellectual suggest they have not understood the crime and succumbing the way lobbies work.
The present situation is complex and should not be looked at only at political and legal angle.The situation has created by the decision of Itlay by not sending the two under-trial after giving written assurance.If one gives importance the legal position and how one country should observe the any international treaty which is also in the form of consent given in the written form?
I agree with your article but I also feel that the Supreme Court has also the ability
or the authority to interpret the Vienna Convention in a scenario where a country
has been contempt and its representative would be then held responsible.
In none of the judgements quoted have a state been contempt and that is a
dimension that we would need to take into consideration.
Future judgements may take cognisance of the judgement of the Supreme Court of
India like you have of judgements in UK and US. And countries would take care to
not act outside the law.
just because he has diplomatic immunity means he can do whatever he wants to do or what. why should he give the false affidavit that those accused who will be returning back. based on his assurance only SC had granted permission for them to go to Italy to cast their votes. There is nothing wrong what SC has done to get justice for the innocent fishermen who have been murdered.
Let the Supreme Court decide. Italy can not convert criminal acts into a political issue under the so called convention. We are a soverign nation. If Italy can go back on it commitment to our courts, then we can also go back on our commitment to the convention!
Supreme Court was under no obligation to allow murder accused to go to
their country for reasons like Christmas and Voting. Looks like no one
opposed or even though what if they don't return. What options do we
have. All we can do now is beat the bush. There is no option but to suck
up the humiliation. Despite trying very hard not to be partial i just
can't avoid feeling there is something more to it than We simply
accepting Italy's affidavit and they reneging on it.
I disagree with the central premise of this article. There are several reasons why the actions of the Italian ambassador can easily be considered to be a waiver of his diplomatic immunity by the Supreme Court of India: (1) The Italian government (through its ambassador) subjected itself to the jurisdiction of the Supreme Court, to plead immunity would constitute contempt of our Supreme Court and such a plea would not be admissible; (2) The action of the Italian government of not sending the marines back in direct violation of the affidavit submitted in the Supreme Court must be considered waiver of the Italian ambassador's immunity: the Supreme Court is well within its powers to hold someone who has subjected itself to its jurisdiction in contempt for violating the court's order; (3) the extensive case law cited in the article, being international judgments are not precedents in the Supreme Court and have persuasive value at best.
I agree this may be a violation of International law. Tell me frankly,
which International power does everything according to law ? Drone
strikes, Invasions, Torture killings etc. are not questioned. India need
not earn a name of "Good & Obedient" at the cost of being a laughing
stock.
The most pliable solution to this vexed problem:
1-Get the marines back so that the Italian ambassadors affidavit before the Hon'ble Supreme Court is discharged.
2-India & Italy agree to trial of the two accused marines in a neutral country.
Article 41(1) of Vienna Convention says:
"Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such
privileges and immunities to respect the laws and regulations of the receiving State. They also have a
duty not to interfere in the internal affairs of that State."
Mr. Ambassador is himself in violation of Vienna Convention. So, I see no reason Why Indian SC should be puritanical about the immunity clause of Vienna Convention.
As for Contempt of Court powers (given by Constitution) being subordinate to International Conventions, the Author has merely cited ruling by an American Court. If American Court rulings were to be used as precedent for Indian SC, we would have never had PIL revolution and Basic Structure doctrine.
PS: I commend 'The Hindu' for publishing this counter-narrative. I may disagree with what author have to say but Truth emerges only through scrutiny and critique.
If this stand is valid all Ambassadors and persons with diplomatic
immunity can save all criminals from their own country committing
criminal offences in the country where they get the diplomatic immunity.
This will create a dangerous precedence if the Ambassador of Italy gets
immunity. He has protected and ensured passage of persons charged with
Criminal Offence under Indian laws.
I applaud the Hindu for printing this piece.
It would be a dark day if, god forbid, diplomats are to be held personally responsible for the sins of their countries; i
When there is a temptation to disregard the commitments we have entered into in the Vienna Convention, it makes every other law in India that much weaker.
I really hope this entire episode ends soon.
Our Apex Court could have obtained some opinion from legal luminaries
before passing such order that has international ramification. The issues
are complex enough and any wrong move on the part of Indian judiciary
would only complicate the matter for India , in diplomatic and economic
relations besides country's image. This article makes a brilliant analysis
of various issues and questions raised that would have helped our Apex
court.Hope the two countries involved work together to get the case
resolved and to foster good relations again.
If the US' arrest of Mr. Camillo Gonsalves, St. Vincent & the Grenadines ambassador
to the UN didn't elicit criticism, why cry hoarse with India? India is within it's rights to
arrest Mr. Mancini as he has subjected himself to the judicial process of this country.
The Constituition is supreme in any country. since India is a republic and sovereign country, so the Constitution is above all the law, all the treaty and other international law when home security comes in danger. Two Italian marines have killed two indian citizens and this case is being tried under the supervision of Supreme Court. How can an Italian gov. stop this process in the middle and renege the soverieng bonds / oath suddenly? In this case, our own Indian constitution appears in disrespect by Italian government and any such provocations, dialogues are treated as the disrespect of the Supreme Court. So, Supreme Court observation is very right and it has taken very rightful steps by restraining the movement of italian ambassador. Because our politicians and government donot have spine. But our Constitution and Supreme Court once again has proved that it and only it has spine.
As per the Vienna convention, it has been stated that it is not possible to waive immunity of the diplomats based on the acts of the country which he/she is representing, but what if the affidavit signed by a diplomat is broken as in the present situation that too with the consent of his sender. Still if he is immune, what is the need of such an affidavit when it can be broken by his nation or by himself? In such situation where we cannot bring him under the law of our nation for reneging of his commitments, the concernered diplomats should be refrained from signing such affidavits unless there is written statement from the sender.
However by all accounts the Supreme Court's claim that the diplomat
has waived his own immunity is childish and possibly dangerous as a
precedent. The Vienna Convention explicitly states that a diplomat
cannot waive their own immunity. Since these are part of international
law to which nations acquiesce it does not seem right to claim that the
diplomat's action of filing the writ petition rendered his immunity
void because no-one is immune in front of the Supreme Court unless
there exists a specific ruling to that effect. It would set an
extremely dangerous precedent.
The Courts have given permission to the Italian Marines twice.
The reasons for granting permission were too flimsy. Celebrating
Christmas, Exercising the franchise! Hearing such things for the
first time.
In the first instance, the permission to the Marines was
supported with severe penalty clause. In the second instance,
even that was given a go by.
The person/s who should be held responsible for the breach of
trust is the decision makers at Italy. The Ambassador of Italy
in India had a very limited role. He reassured the Supreme Court
based on the assertions of the Government of Italy. Even he
would not have anticipated the U-turn by his country.
In India, the impartial commitment to truth and rationality takes guts and the willingness to face even the possibility of violent consequences. Editorials like this one are what make The Hindu a hero amongst Indian newspapers.
Agreed that the Italian Ambassador, cannot be restricted in any legal
means. But, why there is no condemnation of the acts by the Italian
government's decision on not sending the 2 marines to India. what is
the pressure that the EU, which is warning Indian Government and
Supreme court's act on restricting the Ambassador from leaving India.
The court in the first place should not have left the 2 convicts in my
opinion. they have murdered 2 Indian citizens and now are free without
any punishment for their misdeed. very unfortunate.
letting the italian ambassador go, would be like letting them get away with murder of our citizens.
they should have thought it well before giving the affidavit in supreme court. now there can be no diplomatic or political immunity.
The brutal killing of two fishermen by two Italian marines is a
"criminal act", not a political one, though there is no issue which is
not political. So in this context, Anup Surendranath's argument of
resolving the issue politically makes no sense at all. The privileges
Daniele Mancini supposedly enjoys under the Vienna Convention is purely
a academic and diplomatic viewpoint. Criminals should be treated as
criminals
The court's decision may well be legally flawed. But value of human
life is more important than legalese. By first breaking a written
contract, the Italians have made a statement in no uncertain terms
that they consider Indian lives as less valuable.
If we stick to law no matter what they do, we would merely be victims
of asymmetric warfare. So better break the law ourselves, as it seems
that only appropriate punishment can convince them that respect and
trust have to be mutual.
the immunity an ambassador enjoys is from the legal system of a country. Once you file an affidavit in a countries courts you are agreeing to be prosecuted by the legal systems of that country. you have willingly filed an affidavit and agreed to be brought under the fold of India's legal system.
Indian Constitution is the most misinterpreted book after Quran. While Mullas misinterpret one to suit their arguments, legal pundits do the same with the other.
In other words, an Assistant Professor of law and a final year law student telling us that the Supreme Court of India acted without any basis in law.
The whole case is messed up. marines should have been prosecuted without higher court interferring and Supreme Court should not have asked for cash security i/o affidavit of ambassador for allowing two marines to go Itlay.
The best alternative at present would be for the two countries to come to a negotiated settlement
International Relations not only run on Vienna conventions but on mutual trust based on sovereign republic principles.
It seem SC does not have adjudicatory authority over other sovereign state. SC may order GOI to bring Marines back to India.
Italy being sovereign should have resort to MEA or PMO for a speedy trial on just principles, assuring SC and India via bonafide and then exerting sovereign rights amounts to cheating and sets bad precedent.
Anup & Shreya have very successfully proved that they are the most effective
spokespersons for Italy.
The SC is right in claiming that the moment the affidavit has been filed
by the Italian Ambassador on his Govt instructions both Italian Govt
with its Ambassador & the Vienna convention rules have been broken.You
can not eat the cake and have it too.
I am no lawyer and knows nothing about law.It was not surprising and I expected some body is going to write like this to muddy the water. We as Indians do not have any shame as long as the corruption works and make some money out of it. While the authors write about the Vienna convention and all they do not seem to care what the Italians have done.
India's Supreme Court should not have allowed the marines to leave the
country in the first place, and they have no right whatsoever now to
violate the immunity given to the Italian ambassador. He acted as per
the wishes of his own Govt. On both counts SC
invited all this problems.
Let's assume Italy wins this legal round; what would Italy have
gained?: (i) a reputation for being a rather devious nation? (ii) a
country whose word cannot be trusted? (iii) better relationship with
India? (iv) greater prospect for trade and cooperation?
(v) Would its new Ambassador be trusted? (vi) In fact, in the future,
would any country take any undertakings by any Ambassador seriously?
(vii) Would it encourage greater friendship between countries or, make
them even more suspicious of each other than now? (viii) Would it put
ongoing business negations with Italian entities at risk? (ix) Might
it lead to cancellation of deals already entered into?
Italy may earn kudos by those who appreciate these crafty tricks, but
at what risk to trade, friendly relationship and international
reputation? The hit and run diplomacy does not look like a Win-Win
strategy for Italy!
Has Italy any option other than seeking a political/diplomatic
resolution with India?
I pity this Ambassador. Even if he thinks that he does not have the 'Immunity' in tact after his Affidavit for which he alone is responsible, he has to now dance to the tunes of his bosses back home. I wish our Supreme Court calls the bluff of All soon.
My compliments to Anup Surendranath and Shreya Rastogi for their clear, logical
and simple explanation of the controversy.
Thanks to the authors for an enlightening article. Out of general
curiosity, it would be nice to explain on specific legal liabilities of
the host nation on freedom of movement of a diplomat. Especially in
terms of leaving the host nation possibly back to his nation of origin.
Does that mean the the Ambassador can nuke the country if he chooses so while still
enjoying is diplomatic immunity? There always has to be one line not to be crossed,
the Ambassador has given personal guarantee for the absconding marines, I think he
should be held accountable for that.
The law is clear. If the diplomat initiates a proceeding, he loses his
immunity. Express waiver is not required in that case, else it is absurd. One
cannot eat the cake and have it too. If that were to be true, the diplomat
becomes a god. He can start a proceeding based on a lie, and also be
immune to any consequences.
Italy must pay in the Court of Indian Public Opinion. The Indian Parliament should pass a unanimous resolution castigating the conduct of the Italian Govt.
Having approached the Supreme court of India,the diplomat surrendered his Vienna
Convention mandate. Therefore all rulings by the Supreme Court stand binding,even
to the statutes of the Law makers of India. Now the Parliament of India should frame
a legislation upholding the rulings of the learned Judges,therefore satisfying the
wishes of the court ,i.e, the return of the fugitives. Vienna convention is thus
nullified!
1) 'That claim is true to the extent that the 1972 Act recognises
that, along with the sending state, the Head of the Mission can also
waive immunity.'- this is potentially misleading. A Head of Mission
can't waive his own immunity, only his Govt. can. However, a Head of
Mission can waive immunity for some very junior person on his staff-
e.g. a driver or security guard.
2) 'Article 129 of the Constitution empowers the Supreme Court to
punish for its contempt. It has been argued that this constitutional
provision must prevail over diplomatic immunity as Section 2 of the
Diplomatic Relations Act mentions the overriding effect of the Vienna
Convention over ‘any other law’ which would exclude the Constitution.'
In this instance, it may be the Court is punishing contempt
without breaching the Geneva Convention
Finally someone has the courage to stand up to nationalist passions and
speak the truth in the national interest.
Well, this is clearly a strategical bamboozle by the Government of Italy. They were sure about the lacklusture proceedings that India already demonstrated by delaying the verdict on the killing. Considering the guarenteed immunity of its ambassador, the Italy Govt. went a step ahead to get the accused marines back in their territory to claim the soverign immunity provided to its citizens. Clearly, there is no point in restraining the ambassador- he was only used to complicate the jurisdiction territory. Only inference we can draw from this incident is the understanding of the INDIAN WAYS OF TRIAL the west has drawn or perhaps are pushing the tolerance limit of a SILENT SUPERPOWER that India is. As far as marines as concerned; they just add up to the list of wanteds; and will ever remain in their strategic country. India, as usual, got an agenda for prime time discussions.
If Italian Government reneges on
her promise, we too will act like the same and will arrest her
ambassador. If that involves bypassing any treaties that India signed
in the past, so be it.
you talk only about Vienna convention where as in India constitution is supreme not the treaties signed by executives and acts enacted by parliament. So under the Indian constitution it is a true case of contempt of court and SC can hold Italian govt pay its price. I am really surprised how can a law student missed the analysed supremacy of Indian constitution over Vienna convention.
The current exercise of trying to restrain the ambassador is a futile
and dangerous adventure. Hopefully the Supreme court will show more
awareness than it has perhaps shown until now. His immunity cannot be
violated.
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