Running With the Hare and Hunting With the Hounds

RUNNING WITH THE HARE AND HUNTING WITH THE HOUNDS - THE INDIAN GOVERNMENT'S GAME PLAN IN ENRICA LEXIE INCIDENT. (Author is a Lecturer for Law of the Sea and Maritime Law, National University for Advanced Legal Studies, Kochi.) ENRICA LEXIE still continues to be anchored in Indian territorial waters. Two of her marines are presently in judicial custody. Does that mean that Indian Law has triumphed and justice will be rendered to the fishermen families whose kin were shot to death? Appearances could be deceptive. Though the fact that the vessel has not sailed out of India and the marines are in custody could give an impression that law is taking its own course, the under currents should not be lost sight of. The Governments both central and state are busy at work. There appears to be a clear game plan too. The plan is not a new one. The same age old one often employed to spectacular results by democratic governments - Running with the hare and hunting with the hound. By the time the public realises the game plan, like the proverbial hare, hounds would have snatched it by the throat

and here the vessel ENRICA LEXIE and the accused marines would have reached home, latter savouring a spaghetti or Italian pizza and musing about their brief sojourn in the Gods own Country. The real losers in this entire episode will be the relatives of the dead fishermen, two minor girls whose parents are already dead and now their only brother shot dead by Italian marines and another family with a widow who has to bring up her minor children all by herself. The Indian legal system will stand shamed and ridiculed for failing to render justice to its citizens though there were ample provisions in the book, which the government failed to invoke reducing

courts

of

law

to

mute

spectators.

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.

But the moot point is does the Italian marines and the vessel ENRICA LEXIE deserve to be treated as holy cows who cannot be touched by Indian law or Indian courts even if Indian law as it stands now specifically provide for their trial and prosecution?

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 are also 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; (ii) ……; (iii) ……; (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. (emphasis supplied) 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(a) …; (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 under pressure from powers that be within and outside 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. As part of the strategy evolved to save the marines and the vessel, 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 CrPC without invoking the SUA Act 2002 nor the empowering provisions under the Admiralty Offences (Colonial) Act, 1849will ensure that the Courts in India will after a point be compelled to acquit the Italians. The Director General of Shipping, Principal Officer, Mercantile Marine

Department,

Kochi

coming

under

the

Central

Government have already filed statements before the Court that they have no objection to release the vessel ENRICA LEXIE. This has to be read as part of the larger plan. Curiously

enough

the

said

statement

has

been

filed

in

overlooking the specific provisions in Part XII of the Merchant

Shipping Act, 1958. Part XII of the Merchant Shipping Act, 1958 stipulates that in Shipping Casualties in which death has been occasioned, like the one involving the vessel ENRICA LEXIE were two Indian citizens had died, a preliminary enquiry followed by a formal investigation before the competent Judicial Magistrate has to be conducted. The said part XII of the Merchant Shipping Act, 1958 under Secs. 360 to 369 provides for

elaborate

procedure

for

the

conduct

of

the

formal

investigation by the Judicial Magistrate including power to enter the vessel as part of the investigation and arrest witnesses from the vessel if required. The Judicial Magistrate under Part XII of the Merchant Shipping Act, 1958 can investigate or inquire into the charges against the Master of the vessel and other officers. The Judicial Magistrate is also empowered under sec. 361 of the Act to inquire into any charge of wrongful act or default on the part of the Master in causing the shipping casualty. Under sec. 367, the Judicial Magistrate can whenever in the course of such investigation

or inquiry it appears that any person has

committed in India an offence punishable under any law in force in India can, cause him to be arrested or commit him or hold him to bail to take his trial before appropriate court and also exercise all powers as a criminal court. Thus the formal investigation by the Judicial Magistrate under the Merchant

Shipping Act, 1958 is a crucial judicial process which should be mandatorily complied with (though the provision makes it discretionary, the same is not to be exercised according to whims and fancies and at least the Central Government ought to explain how the discretion was exercised so as to decide not to invoke a formal investigation), in the facts and circumstances surrounding the shipping causality involving the vessel ENRICA LEXIE. Director General of Shipping and Mercantile Marine Department which pounces upon Indian Ship-owners at the drop of a hat have chosen to give a clean chit to ENRICA LEXIE not withstanding the brutal killing of two Indian Citizens along Indian Coast. Moreover, the specific guidelines issued by the Director General of Shipping himself had been flouted by the vessel and its Captain. The said guidelines in paragraph 7.6.1 specifically provide that All Merchant vessels transiting through Indian EEZ and carrying armed guards are required to provide the information contained under para 7.3 to the Coast Guard and Indian Navy.” As per para 7.3 the following information ought to be provided by Merchant vessels transiting through Indian EEZ viz.,

i. Names, Addresses and details of identification cards and pass ports of security personnel. ii. Number and details (make, model, bore, caliber, serial number etc.) of fire arms and ammunition. Details of license issued or accepted by the jurisdictional national administration where the PMSC is registered. Clause 6.7 of the above guidelines reads as follows: 6.7 Command and control of onboard security team: 6.7.1 Shipowner when entering into contract with the PMSC, should ensure that command and control structure with the Master/ship’s officers and the armed security guards team is clearly defined and documented. In order to provide clarity, the documented command and control structures should provide inter-alia; 1. A clear statement that at all times the Master remains in command and retains the overriding authority on board; Notwithstanding violations of the above guidelines, the Director General of Shipping and Mercantile Marine Department are at pains to some how push ENRICA LEXIE and her Captain out of

Indian Waters and from the grip of Indian law, though serious allegations including tampering of the VDR after the incident are raised against the vessel and the Captain. The Kerala Police has ingeniously filed reports before the Magistrate Court giving a clean chit to the Captain stating that the Captain is protected under an agreement in Italy between the Ship Owners and the Italian Government. That such an agreement if at all it exists does not bind Indian Investigation agencies and that the same does not over ride clear Indian legal norms is conveniently brushed aside by the Police. So far the above said modus operandi planned to save the Italian marines and executed by the Government of India and the Government of Kerala are going ahead well. In few days time the highest courts in India, notwithstanding the above said clear legal provisions, will be compelled to acquit the two Italian marines as well as permit the vessel ENRICA LEXIE to sail out of India due to the failure of the governments to invoke the relevant law. Government will then step in and feed to the public through the media that the marines went through the process of law and were acquitted by the Courts and that the Governments, both

state and center did stand by the fishing folk all through. The game would end there, achieving the desired result. Republic of Italy should thank the Government of India and the Government of Kerala State for foresaking its own citizens and making a scarecrow of its own judicial system. Where is the Gift? ***