The interminable delay in resolving the outstanding issues concerning the prosecution of two Italian marines accused of killing two Indian fishermen off the Kerala coast in February 2012 is becoming a diplomatic embarrassment to India. The Supreme Court has been adjourning the matter repeatedly in the hope that the Union government would find a solution, and in the latest instance it has given the Centre one more week to report a settlement. The main issue appears to be the National Investigating Agency’s insistence on invoking an anti-piracy law — 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 is ready with its charge sheet, but is awaiting the outcome of proceedings in the Supreme Court before filing it in a special court. While there may be genuine reasons for the delay in resolving the matter, the country cannot afford to be seen as the cause. Italian President Giorgio Napolitano has said Indian authorities have managed the case in contradictory and disconcerting ways. The European Union, which opposes the death penalty in all circumstances, has also warned of a possible adverse impact on trade relations with India.
It is particularly surprising that India’s approach should be marked by doubt and uncertainty even after the Supreme Court mapped the contours of the proposed prosecution in a January 2013 verdict, in which it held that only the Centre, and not Kerala, would have jurisdiction to try the case. The issue raised by the marines is whether the anti-piracy and anti-terrorism law can be invoked against them after the court had directed that the proceedings be under the Maritime Zones Act, 1976, the IPC and the CrPC, and the provisions of the UN Convention on the Law of the Sea, 1982. The wisdom of invoking the anti-piracy law in a case involving a crime that was possibly committed under the impression that the targets were pirates, is open to question. As the incident took place in India’s Contiguous Zone, the Supreme Court had held that the Union government was entitled to prosecute the marines, but that it was subject to Article 100 of UNCLOS 1982, which says all states shall cooperate in the repression of piracy. Caught between national outrage against what many here see as wanton killing by trigger-happy marines, and the imperative of according a fair trial to the suspects, India seems to be faltering at both the diplomatic and legal levels. It needs to finalise a credible and legally sustainable approach to avoid diplomatic setbacks or, worse, a judicial invalidation.