India has jurisdiction to try Italian marines, says SC

The Supreme Court on Friday affirmed India’s jurisdiction to try the two Italian marines, accused of killing two fishermen off the Kerala coast in February last year, after underlining that a criminal act cannot be said to be an “incident of navigation”. It ruled that the two marines will be tried in a special court to be set up by the government after consultation with the Chief Justice of India (CJI), while dismissing Italy’s plea to quash all criminal proceedings in view of lack of jurisdiction by any state in India to make its marines stand the murder trial. A Bench of CJI Altamas Kabir and Justice J Chelameswara also clarified the bail conditions of the marines, Massimiliano Latorre and Salvatore Girone, who had been released on bail by the Kerala High Court, which lost its jurisdiction following the apex court judgment. The Bench said the two marines will be shifted to Delhi and will be considered to be under the custody of the Supreme Court till the Centre constitutes the special court. It asked them to report to Chanakyapuri police station once every week and directed that their passports be handed over to the Ministry of Home Affairs. Marines Latorre and Girone were part of a military security team aboard cargo ship ‘Enrica Lexie’ when they opened fire on a fishing boat, killing two fishermen. They said they mistook the boat for a pirate craft. They were subsequently charged for murder and a Kerala court initiated their prosecution. In its verdict, the Supreme Court Bench held that Kerala had no jurisdiction to conduct the trial because the incident occurred in the Contiguous Zone. Since the government of India extended the application of the penal laws to the Contiguous Zone — that extends up to 24 nautical miles from the baseline — only the Centre could take cognizance of, investigate and prosecute persons for any crime, the court said. However, the court also made it clear that its judgment was confined to the limited aspects and that the marines as well as the Italy government will be at liberty to invoke pertinent provisions of the United Nations Convention on the Law of the Sea (UNCLOS) during the trial. Article 100 of the Convention obligates all countries to co-operate in the repression of piracy on the high seas or in any other place outside the jurisdiction of any state. Article 97 of the Convention says no penal or disciplinary proceeding can be instituted against the Master or any other person in service of the ship, except before the judicial or administrative authorities, either of the Flag State or of the State of which such person is a national. “I am also of the view that till such time as it is proved that the provisions of Article 100 of the UNCLOS apply to the facts of this case, it is the Union of India which has jurisdiction to proceed with the investigation and trial of the petitioners. It is also made clear that nothing in this judgment should come in the way of such reconsideration, if such an application is made,” noted the court. Significantly, the Supreme Court order leaves the marines and the Italy government with yet another opportunity to re-agitate the issues relating to the lack of jurisdiction by the Indian courts, now before the special court, which will adjudicate it on the basis of the evidence and other records. However, while authoring a concurrent but separate judgment, Justice Chelameswar held that “Article 97 of UNCLOS has no application to the Exclusive Economic Zone, of which the Contiguous Zone is a part, and that is the area relevant, in the context of the incident in question.” The judge also the dismissed the contention of the marines that the sovereignty of India did not extend beyond its territorial waters and therefore, the extension of the IPC beyond the Indian territorial waters was impermissible. The marines and the Italy government had moved the SC, saying no court in India had jurisdiction to try them since the incident occurred in international waters. Seeking to get all criminal proceedings quashed in India, Harish Salve, appearing for them, had assured the court they will be properly tried as per the law of Italy for their alleged offences.