(Author is a Lecturer for Law of the Sea and Maritime Law, National University for Advanced Legal Studies, Kochi.)
Does the arm of Indian law stop short at 12 nautical miles from Indian coast or is it long and capable enough of being stretched beyond that limit to further extents of her maritime zones so as to deal with perpetrators of crime within those zones? This is one among the many pivotal questions thrown up by the recent incident involving the Italian Vessel ENRICA LEXIE.
ENRICA LEXIE continues to be anchored in Indian territorial waters. Two Italian marines who were on duty on board the vessel are presently in judicial custody charged with the crime of shooting to death two Indian fishermen. They have been charged for murder under sec.302 of the Indian Penal Code.
There is tremendous public sympathy in India for the two fishermen who were shot to death.One among the diseased is survived by two minor girls, his sisters. Their parents are already dead and now their only brother has been shot dead. The other fisherman's family consists of a widow who has to bring up her two young children all by herself. Both families belong to economically weaker sections of Indian society and deserves maximum sympathy.
In Italy too there is great concern regarding the fate of the two marines who are now lodged in Indian prison awaiting a lengthy murder trial. A long drawn and onerous criminal trial, which could be a punishment in itself, awaits them, if the Courts in India turns down their preliminary objection regarding jurisdiction of Indian Courts to try them. Families of the marines in Italy have genuine reason to be concerned and the Italian Government is trying in earnest to resolve the quagmire.
ENRICA LEXIE incident catches the attention of a maritime lawyers not only from the above humanitarian concerns which vexes every lawyer, but also because it throws open a number of questions within and outside the realm of International Law especially that branch of it which we term as the Law of the Sea.
Though the questions regarding the scope and extent of coastal state's jurisdiction over adjoining waters have engaged attention of maritime lawyers since decades and was fairly thought to be settled, 21st century problems demand 21st century solutions.
Piracy, once thought to be dead and buried thus receiving a cursory and half baked attention even in the third UNCLOS, have spread it evil head so wide that world has to sit up and deliberate, lest incidents like ENRICA LEXIE are repeated.
21st century piracy, though said to be originating from Somali Coast but which is perceived of being controlled from world business capitals, is even threatening the life of innocent fishermen from tiny fishing hamlets along Indian coast where they have been engaged in small time fishing since time immemorial.
Bravado exhibited by US, Italian and even Indian navy so far in and around the Somali Coast, Arabian Sea and some areas of Indian Ocean in the pretext of containing piracy, but which many a times lead to shedding innocent blood are no more viable solutions to this deeper problem. India and Italy have learnt this the tough way with ENRICA LEXIE incident. Others might learn it later, albeit slowly but in a more gruesome way. This has to be avoided.
Since the incident is developing day by day let us save the larger issues involved in ENRICA LEXIE incident for discussion later and confine ourselves to the limited issue of the jurisdictional power or the lack of it, of the Indian Courts to try the Italian Marines alleged to be involved in the incident.
The Italian marines and the vessel are undoubtedly entitled to a fair trial and hearing. They should never be condemned unheard. Their legal and factual contentions deserve to be considered with due merit and they ought to be presumed innocent until found otherwise by a competent court of law. If they have a case that they are not governed by Indian law, that contention too deserves to be considered with due respect and if it is found that Indian law is not applicable they ought to be handed over to Italy for being tried under their law.
The question whether the Indian Courts have jurisdiction to try the two Italian Marines involved in the shooting of the fishermen from the Italian Vessel ENRICA LEXIE was specifically addressed before the Court by the relatives of the dead fishermen.
They had started by pointing to Sec.3 of the Indian Penal Code and then to two specific statutes that are in force in India. The statutes are the Admiralty Offences (Colonial) Act, 1849 and the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (the SUA Act, 2002).
Though there exists some cloud over the exact distance from Indian base lines to the marine area were the shooting incident took place, even the State Police seems to agree that the same happened beyond the 12 nautical mile territorial waters of India but within the Indian Contiguous Zone and Exclusive Economic Zone.
That being the factual position, one is prone to jump to the conclusion that since the incident happened beyond Indian Territorial Waters neither the Indian law nor Indian courts have jurisdiction and ENRICA LEXIE being registered in Italy, the flag state law ie., Italian Law ought to apply in view of the principles of International Law of the Sea as settled under the UNCLOS .
But a conjoint reading of Sec.3 and the said two statutes clearly reveal that the Indian Courts are well within their powers to try the Italian Marines. Let us examine the provisions closely.
Sec. 3 of the Indian Penal Code reads as follows:
Sec. 3: Punishment for offences committed beyond but which by law may be tried within India: Any person liable by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India. (emphasis supplied)
Section 3 of the Penal Code reproduced above has the following attributes:
(a) It applies to all persons including foreigners and is not confined to citizens of India.
(b) The said section presupposes the existence of an Indian law under which a person can be made liable for an offence committed beyond India, i.e., beyond the territorial limits of India.
(c) If such an Indian law exists, then the person liable under that law is to be dealt with according to the provisions of the Indian Penal Code for such offence committed beyond India.
(d) While being so dealt with under the Indian Penal Code, a presumption follows that the offence had been committed within India.
Section 3 applies to all persons including non-citizens. Hence the Captain of the vessel as well as the two Italian Marines who are foreign citizens, presently in India are squarely covered by the said provision.
The Admiralty Offences (Colonial) Act, 1849 is a statute which envisages extraterritorial operation and specifically deals with and empowers authorities to take legal action with respect to admiralty offences or offences committed upon the sea i.e., beyond the territorial waters of India. The said Act is protected vide Art. 372 of the Constitution of India and continues to have extra territorial effect pursuant to Explanation II to Art. 372.
Sec. 3 of the Admiralty Offences (Colonial) Act, 1849 reads as follows:
Provision, 7c., where death in the colony &c., follows from injuries inflicted on the sea, &c.,-
Where any person shall die in any colony of any stroke, poisoning, or hurt, such person having been feloniously stricken, poisoned, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, or at any place out of such colony, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessory before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished, in such colony, in the same manner and in all respects its if such offence had been wholly committed in that colony; and if any person in any colony shall be charged with any such offence as aforesaid in respect of the death of any person who, having been feloniously stricken, poisoned, or otherwise hurt, shall have died of such stroke, poisoning, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, such offence shall be held for the purpose of this Act to have been wholly committed upon the sea.
The above provision clearly and unequivocally empowers the authorities in India to deal with offences committed outside India which during the time of the enactment was referred to as a ‘Colony’. Mark the words ‘or at any place out of such colony’ as it specifically empowers the authorities to deal with, inquire into, try, determine and punish the offence in the same manner and respect as if it has been committed wholly in India. Thereby the Indian Authorities are empowered to invoke Admiralty Offences (Colonial) Act, 1849 over and above the IPC and CrPC in the case of ENRICA LEXIE.
In February 2003 fifteen Indonesian pirates who had boarded a Japanese ship named Alondra Rainbow were successfully prosecuted and convicted in Mumbai, India invoking inter alia the provisions Admiralty Offences (Colonial) Act, 1849. All pirates were sentenced to seven years of rigorous imprisonment with a fine of Rs.3000 for each crew member, in default of payment of fine, to suffer further rigorous imprisonment for two months.
The Captain of the Vessel Enrica Lexie and the two Italian Marines could also be liable to be prosecuted under the SUA Act, 2002. The SUA Act, 2002 vide S.1(2) extends to the Territorial Waters, the Continental Shelf, the Exclusive Economic Zone and any other Maritime Zone of India within the meaning of the Maritime Zones Act, 1976. Thus the jurisdiction of Indian authorities stand extended beyond the territorial waters of India up to the edge of the exclusive economic zone which is 200 nautical miles from the baseline. Offences within the said zone are thereby punishable under the SUA Act.
The SUA Act defines the term ‘Ship’ in S.2(h) as to include any floating craft. Thus both Enrica Lexie and the fishing boat St.Antony are ships/floating crafts and are thereby amenable to the SUA Act. Chapter II of the SUA Act lists the various offences under it. It lays down the punishment for such offences as well. Thereby it can be seen that it is a complete code in itself. Section 3 (1) (a), (b), (c), Section 3 (1) (g) (i) (iv) and (v) and Sec. 3 (7) and (8) (c) of Chapter II of the SUA Act, 2002 are specifically relevant.
Relevant portions of Section 3 (1) (a), (b) and (c) of the SUA Act, 2002 reads as follows:
Sec. 3 Offences against ship, fixed platform, cargo of a ship, maritime navigational facilities, etc.-
(1) Whoever unlawfully and intentionally-
(a) commits an act of violence against a person on board a fixed platform or a ship which is likely to endanger the safety of the fixed platform or, as the case may be, safe navigation of the ship shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine;
(b) destroys a fixed platform or a ship or causes damage to a fixed platform or a ship or cargo of the ship in such manner which is likely to endanger the safety of such platform or safe navigation of such ship shall be punished with imprisonment for life;
(c) seizes or exercises control over a fixed platform or a ship by force or threatens or in any other form intimidates shall be punished with imprisonment for life;
Section 3 (1) (g) (i) (iv) and (v) of the SUA Act, 2002 reads as follows:
(g) in the course of commission of or in attempt to commit, any of the offences specified in … clauses (a) to (f) in connection with a ship-
(i) causes death to any person shall be punished with death;
(iv) seizes or threatens a person shall be punished with imprisonment for a term which may extend to ten years; and
(v) threatens to endanger a ship … shall be punished with imprisonment for a term which may extend to two years.
Relevant portions of Sec. 3 (7) and (8) ( c ) of the of the SUA Act, 2002 reads as follows:
Sec. 3 (7) : Subject to the provisions of sub- section (8), where an offence under sub- section (1) is committed outside India, the person committing such offence may be dealt with in respect thereof as if such offence had been committed at any place within India at which he may be found.
Sec. 3 (8) (c) : No court shall take cognizance of an offence punishable under this section which is committed outside India unless-
(b) …; or
(c) the alleged offender is a citizen of India or is on a fixed platform or on board a ship in relation to which such offence is committed when it enters the territorial waters of India or is found in India.
Take special note of the words "is on a ...ship in relation to which such offence is committed when it enters the territorial waters" as also the words "or is found in India" in Sec. 3 (8) (c). In the case of ENRICA LEXIE the Italian marines were on ENRICA LEXIE when she entered Indian Territorial waters and moreover the Marines and the Captain are still in India. So the Act squarely applies to the facts of the case.
Further a reading of Sec. 13 of the SUA Act 2002 which provides for presumption of offences under sec. 3 should alarm any lawyer appearing for an accused charged under SUA. The said provision which shifts the burden of proof on to the accused could make the criminal trial a very arduous one for the accused.
In the light of the above said Legal norms which are presently in force in India, the two Italian Marines and the Captain of the vessel are liable to be proceeded in India under Indian law. If they are so proceeded and earnestly prosecuted there is a reasonably high chance that they will be convicted.
However as on date the Government of India has refused to invoke SUA Act, 2002 in the ENRICA LEXIE matter. Similarly unlike the Maharashtra Police who effectively invoked the provision under Admiralty Offences (Colonial) Act, 1849 the Kerala Police is refusing to invoke the same against the Italian accused.
Even after the lapse of more than one month after the incident and number of rounds of legal battles in the Courts, the investigating agencies have so far chosen not to invoke SUA Act 2002 nor the empowering provisions under the Admiralty Offences (Colonial) Act, 1849. They have charged the marines only under sec. 302 read with Sec. 34 of the Indian Penal Code (I.P.C.). It is trite law settled by innumerable precedents including those from the Supreme Court of India that I.P.C. and the Cr.P.C. have no applicability beyond Indian territorial waters extending to 12 nautical miles except under circumstances falling within Sec. 4 of IPC and Sec.188 of Cr.P.C. That it would be onerous to prove the existence of the said circumstances in ENRICA LEXIE incident is also evident. Thus charging the marines under the IPC and Cr.P.C. without invoking the SUA Act 2002 nor the empowering provisions under the Admiralty Offences (Colonial) Act, 1849 could lead to a situation where the Courts in India will after a point be compelled to acquit the accused marines.
By virtue of the norms put in place by the Admiralty Offences (Colonial) Act, 1849 and more recently by the enactment of the SUA Act 2002, Indian law does not invariably freeze, stultify or become ineffective upon reaching the outer limits of the territorial waters i.e., immediately upon reaching the outer limits of the 12 nautical mile territorial waters. The Courts and authorities in India are empowered, capable and competent under the said statutes to apprehend, try and punish perpetrators of crime as far as Indian Exclusive Economic Zone which is 200 nautical miles from the Base lines.
The 21st century world and the issues endemic to our times demand that Indian law needs to have the said extra territorial operation and vibrancy so as to retain the basic quality of law as a purposive enterprise.