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Updated: March 16, 2013 01:06 IST

Lawful responses to unlawful actions

Arghya Sengupta
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How the legal complexity surrounding the case of the Italian Marines can be used by India to secure its national interest

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)

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Nobody is remembering that the ship was not going to India but in
transit in water infested of pirates (1st problem), was offered
assistance with fraudolent excuse (2nd problem), the two Italian
Marines were transferred ashore and the ship held for many weeks
(without reason), nobody knows about the caliber of the bullets
because the balistic was top secret from the Government, Italy has
waited one year to try to have answers or idea from the Government how
to handle the matter, no response, every judge was prolonging the
problem and washing the hands, even the passports of the Marines went
lost (!), how can you think Italy is remaining in such a situation? It
is normal that to give a wake up call they had to do that and take
action! Anyhow they call for an indipendent arbitrate. And by the time
if the Envoy on tuesday will be held and there will be no solution the
two aircraft carriers and two destroyers will be positioned 13 miles
off India with Nato ensigne. Nobody is writing this!

from:  Toni
Posted on: Mar 18, 2013 at 07:11 IST

The old saying that the Diplomat Lies Abroad is more true now than
ever before. The Indian Government and Judiciary have been taken for
a ride by Italy and are now scratching their heads about how to
recover their hurt pride.
Let us hope India learns a lesson. Do not trust any other country.
There are no friends or enemies out there. And no Government pays any
attention to principles. Every country is interested in its own
welfare and ever politician is interested in his own power. That
applies to India as much as to any other country.

from:  DR.R.VENKATARAMAN
Posted on: Mar 17, 2013 at 16:18 IST

Spok, if I understand correctly, the ambassador gave a personal undertaking. If that is true,
he has waived his immunity. If not, i.e., the undertaking was on behalf of the government of
Italy, then diplomatic solution is the only way out.

from:  Dexter
Posted on: Mar 17, 2013 at 14:47 IST

Diplomatic immunity is an inevitable need for the smooth functioning of the diplomatic interaction. Diplomat's basic moral qualities are pre-requisite for the diplomatic immunity to be honoured. Italian Ambassador has "eaten" such previleges and he will no more have it. He has simply lost it. As long as he is not giving an explanation to the situation and not suggesting an acceptable alternative, he has done the contempt of court decisively helping the accused to flee the law of India. If the Italian authority take a stand not to send the marines back, it is the diplomat who is answerable in all respect. One as the representative of the country and next as the individual signed the affidavit of obligation to ensure the marines' return.Virtually Italy as a nation has done a contempt of Indian judiciary to save its citizens, accused in a murder case, from a trial. We ignore the vital point of humiliation on the Nation and foget the fishermen and worry about a non issue called immunity.

from:  S Naduthodi
Posted on: Mar 17, 2013 at 14:42 IST

"Sonia Gandhi" is the answer to all this. Why analyze and waste time on writing all these articles.

This is final proof that , India is still ruled by western interests. And especially why is Italy been in talks for all wrong reasons? Guess why? Sonia Gandhi.

Why cant you all understand this simple connection.

from:  Hrishi
Posted on: Mar 17, 2013 at 13:00 IST

@Nikhil... I think you got confused by the whole notion of good faith
thing.
When SC released the two accused it was done in good faith based on
the promise of the representative of a sovereign, democratic nation.
So, the SC (and hence India) let go of its authority over the two
accused, in good faith, as the ambassador took responsibility for
them.
Here there is no question of the ambassador placing his faith on SC.
So, no question of good faith.
He, in turn, might have let the two accused go to Italy by placing
faith on his govt. and his people. And that you may argue was done in
good faith. But towards his own country and not India!
So, for Indian SC he still is responsible for the conduct of his govt.
Hope its clear :)

from:  Ashutosh
Posted on: Mar 17, 2013 at 12:36 IST

UNTENABLE ITALIAN STAND

Sir,
The stand of the Italian Government which amounts to breach of
trust is untenable and unbecoming.From day one the Indian judiciary
has conducted itself fairly and unbiasedly.It has handled the accused
carefully and even respected their sentiments by granting them a
'sojourn' last year.That the Apex Court did not insist on the
conditions laid down by the Kerala High Court in the first instance
itself shows our trust in Italy a place known for its ancient
jurisprudence!As this instant comes close on the heels of the chopper
scam,it queers the pitch for the accused and to the UPA Government for
its Italian links.

from:  M.SOMASEKHAR PRASAD
Posted on: Mar 17, 2013 at 09:06 IST

nice article India should take right decision on these issue because
this type issue will be greater impact in future also , so take
carefully & right decision .

from:  rahul
Posted on: Mar 17, 2013 at 08:36 IST

Let's face it. The Supreme Court's decision was stupid to say the least. The only recourse India has unilateral actions such as downgrading diplomatic relationships, barring Italian companies from doing business in India etc. Make the Italians pay a heavy price for their actions.

from:  S. Ray
Posted on: Mar 17, 2013 at 01:51 IST

Since independence India has been spineless. Even though Italy is so tiny and it is
part of PIGS nation ( portugal italy greece spain), it is a white county. It cannot
tolerate poor India trying its citizen. Now is the time India to wake up and come out
of the slave mentality. how hard is to challenge Italy ? I really don't want to be called
as Indian. it is very shameful for me.

from:  Prakash
Posted on: Mar 16, 2013 at 21:14 IST

The reference to Max Faulbam is misplaced. That case concerned immovable property,
and even the Vienna Convention makes exceptions to immunity for property cases.
Also, Art. 32 of the VCDR makes clear that waiver of immunity cannot be implied and
must be expressly granted by Italy (and not the Ambassador himself). Art. 32(3) of the
Convention is misunderstood, as it applies to proceedings by diplomatic agents in their
personal capacity. Here, the Ambassador was merely a representative of the State. This
is not to say that India's case is weak, but unfortunately the answer lies not in domestic
law, where the Ambassador enjoys vast immunities, but in international law. Under
International law, the Ambassador's statement can create binding obligations for Italy.
The problem is why do people always think of it as a question of domestic law v. int'
law? Both are different systems, and both can be very useful. To say that one is
hierarchically superior than the other misses the point.

from:  SPoK
Posted on: Mar 16, 2013 at 19:10 IST

Let's not complicate matters. The whole issue from Bhopal to Mumbai to the killing of fishermen boils down to lack of self respect. Or the lack of value for an average Indian's life.
We cover it with sections and acts and legal formalities. Decades, and justice never shows its face. It's over. Another closed chapter.

from:  Nikhil
Posted on: Mar 16, 2013 at 18:23 IST

The fact of the matter is small countries smaller than the size of some districts of India
are challenging and mocking at our National pride and common sense because of the meek
foreign policy of our government. Whether it is Italy or Lanka or Pakistan, this government is
appeasing them inspite of open challenge. On the other hand, small countries like Israel or
Japan are able to show the real strength to their neighbors for any misadventure against
them where as India goes on the defensive to please American interests.

from:  MvjRao
Posted on: Mar 16, 2013 at 16:47 IST

In the article in the beginning it says that "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". Later it says "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". Is it not self contradictory? Further it argues that constitution has provision to try an diplomat even though Vienna Convention gives immunity. If constitution of any country can override an International law what is the purpose and meaning of an International law. Every country can have its own laws. Further when the ambassador gave assurance that the marines will return to India before the period is over he did it in good faith. If circumstances beyond his power had changed it cannot be termed as he has given false affidavit.

from:  Guptan Veemboor
Posted on: Mar 16, 2013 at 14:39 IST

Very nice Article!!!
Thanks to authors for bringing up the minute legal aspects related to
the case...

from:  Chetan
Posted on: Mar 16, 2013 at 14:30 IST

My sincerest thanks to Dr Sengupta and Dr Jain for an excellent legal
opinion.

It beggars belief, when advice of this quality is available, that Indian
Govt's legal eagles are apparently so sleepy. Hope they were not
pressurised by any other "party political compulsion"!

from:  D Mahapatra
Posted on: Mar 16, 2013 at 13:45 IST

It may seem tempting to go after Italy/Manicini under Art.129 invoking Constitutional power which cannot be subservient to any other statutory power. Constitional power may be 'sky high as SC said to reach the neck of any trickster' and Contempt power may be the tool.But India needs to guard against international ramifications and being in breach of Vienna Convention on Diplomatic Relations,1961.Universally there is no question of 'implied waiver' by submission to court jurisdiction. Waiver must be express (32(2)) and it is unexceptionable as it is universal and therefore cannot suffer differing interpretations. Read Pinochet judgment of House of Lords please.The lesson is that SC ought to have obtained or UOI insisted on 'express waiver' by Mancini before the relief was granted. Then we would have surely had 'jurisdiciton', not now.Let us not continue to pull wool over our eyes. We the People have missed the bus/marines.Declare Manicini persona non grata (Art.9)and form special court.

from:  n vijayaraghavan
Posted on: Mar 16, 2013 at 13:21 IST

When the Hon'ble Supreme Court permitted the"accused"to leave India in an unprecedented move,it fairly expected a gentle man behavior in return.And now we are now caught up in a cauldron of legalities and diplomacy,which is taking this to a complicated level.We have
to plan our actions in more circumspected way,as the last thing we
don't need is to enroll these two marines in our long list of
fugitives.

from:  V DEEPAK
Posted on: Mar 16, 2013 at 13:17 IST

This excellent analysis provides the background why DrSwamy who had initiated the petition in SC yesterday is confident and even tweeted that India has a case to prosecute the italian ambassodor on the basis of art.31 &41.

from:  shiv
Posted on: Mar 16, 2013 at 12:29 IST

Appreciating the various legal points put so succinctly by the authors,
it should also be kept in mind that Italian ambassador isn't acting on
his own and he is just a representative of Italy. In other words, he is
a messenger only. Can we punish (detain / jail) a messenger for the
wrong deed of his country? I guess, not! Please keep in mind that there
are lot of Indians too in Italy. In our jingoist fervor, impact on our
fellow citizens abroad should also be kept in mind.

from:  sanjay
Posted on: Mar 16, 2013 at 11:27 IST

One of the best articles written on this issue. Again The Hindu shows what
responsible journalism is and for Mr. Sengupta, very well written article.

from:  Rahul Singh
Posted on: Mar 16, 2013 at 11:20 IST

A very informative article about the stock of options that India can
take against Italy in this row. My contention is what would remain of
the whatever little remaining status of Government of India and our
Supreme Court if our government decides not to take any action in this
regard. What would be the reputation of our legal system and polity
and diplomacy in the comity of nations? Would it not degrade our
position in the eyes of our allies and adversary altogether? They are
worried about the economic impact of the actions taken by India. It is
Italy that should be worried about it not India, to begin with. Unless
there is clash of interest in the ruling party with national interest,
it should not be tough to take action against a rouge country!

from:  Atul
Posted on: Mar 16, 2013 at 10:41 IST

Cut through all the legalese, and one fact emerges: two Indians were killed by two Italians. Is Italy going to condone that?

from:  M. Nazareth
Posted on: Mar 16, 2013 at 10:21 IST

Sanity and rationality at last -- from two Indians who, not very surprisingly, have found that a British and an American university were much more receptive to these virtues than the institutions of their beloved motherland, a fact which ironically gives yet more support to the Italian government's action.

Speaking of "having one's cake and eating it too".

from:  Ashu
Posted on: Mar 16, 2013 at 09:49 IST

It's not clear whether it is Italian 'merchant seamen' opening fire on two Indian
fishermen within Indian territorial waters or they are Italian 'Army personnel' willy
nilly targetting fishermen. Should maritime personnel on merchant vessels carry arms
and attack people of other countries,it may well be a case for declaration of war on
that country. Therefore Italy must facilitate the court appearance of the two Italians
under the rubricks of Indian Law courts to explain the circumstances of their citizens
killing while inside Indian territorial jurisdictions ,land or sea. Summary decision by
Italy to become recalcitrant in their dealings with India are reprehensible and deserve
condemnation from every Indian.

from:  austin theodore
Posted on: Mar 16, 2013 at 09:22 IST

Stunning analysis. This sure beats the jingo trash we are being
subjected to from other outlets.

from:  Nari
Posted on: Mar 16, 2013 at 08:04 IST

This article very lucidly lays out some of the options that the Government of India may consider. The points raised appear quite reasonable and worthy of consideration. This case is quite important and has the potential to uphold or undermine India's effectiveness in establishing its own rule of law, the law of its own rule (yes), and its firmness of resolve of bringing justice to two of its citizens who were killed while they were merely pursuing their livelihood without posing any threat to anyone, least of all a large ship with armed personnel aboard.

The international repercussions will be significant both in the immediate situation as well as for setting precedents.

No matter what, justice must be delivered to the victims' kin beyond the usual 'ex gratia' payments, and the rule of law unambiguously upheld.

from:  Chandra Shekhar Balachandran
Posted on: Mar 16, 2013 at 08:01 IST

Very good analysis. Another way out of such a situation, is to extend
full diplomatic immunity and freedom of passage to the Diplomat who has committed an offence, but at the same time, using "tricks" that
effectively grounds the Diplomat (for example, refusing to fly the
aircraft that carries the diplomat citing technical reasons, or the Air-
traffic controller not giving permission for take-off, etc). This
approach does appear very cunning and humiliating, but sends a strong
signal to an offending country.

from:  Dexter
Posted on: Mar 16, 2013 at 06:21 IST

Thank you Mr Sengupta for breaking down this complex issue involving international law, fact that we have two dead fishermen and diplomatic immunity.

The question of who has jurisdiction is one thing but the acts, omissions, and wanton disrespect of the highest court of the land and the illusion that they can take cover under diplomatic immunity is entirely another thing that must not go unchallenged. There is no denying that by submitting a sworn affidavit before the highest court of the land by an accredited and (not so) Honorable ambassador of a sovereign nation he has surrendered all his diplomatic immunity and must be held personally responsible.

This case must be handled carefully as it can set precedence for any future disputes.

from:  Krishna Dammanna
Posted on: Mar 16, 2013 at 02:35 IST

Also the Vienna Convention act- 1972 is subject to judicial interpretation . In the keshavanada Bharathi case 1973 , the SC said that nothing in any law shall violate the 'basic structure' of our constitution. Sovereignty is in the first line of the preamble of our constitution and hence unambiguously is part of the basic structure. The Italian government renegating on the assurance given to the SC has not only committed an act of contempt but also has compromised the sovereignty of India and this is non negotiable. And hence the Italian ambassador can be tried for contempt and breach of sovereignty.

from:  dodda krishna chaitanya reddy
Posted on: Mar 16, 2013 at 02:11 IST

Very well analysed. Explains the various aspects nicely.

from:  Harish
Posted on: Mar 16, 2013 at 02:04 IST
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