Sovereign immunity as against responsibility

Last Updated 16 March 2013, 19:16 IST

The two Italian marines were arrested on February 19, 2012. After recording statements of 161 persons, the Kerala Police had filed a charge sheet against the marines for committing murder of two Indian fishermen in Indian territorial waters.

The two marines were in police/judicial custody for nearly 105 days and, thereafter, released on bail on the condition that they will appear before the Commissioner of Police on all days and as and when required. In December 2012, the Court had allowed both marines to travel to Italy for two weeks during Christmas vacation on Italian Government executing a bond of Rs 6 crores and on undertaking to keep the marines under surveillance all the time. The two marines, as per their undertaking, came back to Kochi on January 4, 2013. On January 18, 2013, the Supreme Court dismissed Italian Government’s plea that India has no jurisdiction over the case. The Court also directed that a Special Court be constituted for their trial.

Once a finding on jurisdiction was given, the trial of the two marines fell squarely within the domestic jurisdiction. Therefore, they like any other accused, were bound to face trial for the offence of murder in accordance with the law of the land. They were not entitled to leave the territorial jurisdiction of the Indian courts.

Usually, the court which has jurisdiction over the subject, ensures that the subject is not allowed to go out of its jurisdiction. It was, therefore, the first and foremost duty of all those assisting the Supreme Court to ensure that the Court’s direction are not rendered ineffective, particularly when consistent position of Italian Government was that India has no jurisdiction to try the marines.

But having allowed the Italian marines to leave Indian jurisdiction and they being within the Italian jurisdiction, the Italian Government can decide whether the two marines have committed any offence which is punishable under the Italian laws. Allowing the two accused to leave the Indian jurisdiction has resulted in this chaos, which was avoidable.

However, it is important to note that the Supreme Court order was based on the undertaking and affidavit given by the Italian ambassador assuring the Court that “He has taken full responsibility for the petitioners to proceed to Italy in the custody and control of the Government of Italy and to ensure their return to India.”

Whether breach of this undertaking is actionable under Contempt of Court and whether the ambassador can claim diplomatic immunity are complicated questions and are capable of many answers. But one aspect is quite clear: that if the Supreme Court takes a view that the undertaking given by the ambassador was in his personal capacity as he had personally taken full responsibility for the marines’ return, then the Court can proceed with contempt action.

Even if it is assumed that the ambassador was representing the State, such immunity, on express statement made before the Supreme Court, was clearly waived. Earlier, the marines were allowed to go during Christmas, though on stringent conditions, but came back and surrendered to the Indian jurisdiction, which was one of the reasons ‘in good faith’ to pass the subsequent order.

The breach of undertaking by a sovereign, based on mutual faith and trust, is a serious matter and in any case does not allow Italy to claim sovereign immunity. After all, sovereignty means responsibility.

The doctrine of State Immunity was the product of 19th century having its genesis in the ancient feudal rule. The State immunity and sovereignty have undergone a drastic change and today respect for commitment made by a Sovereign is essential to what is now recognised as the International Rule of Law. The Italian Government should not take the argument of State immunity to its absurdity which is not supported by the norms of international relations and international law.

Not a soft state 

The Supreme Court, in the circumstances, has a higher duty of not only upholding the dignity of the judiciary but ensuring that the rule of law prevails and that the guilty will be punished. The order passed by the Supreme Court on March 14, 2013 that the Italian ambassador shall not leave the country is a clear indication that India cannot be taken as a soft State.

Further, it appears that the statement made by the Italian ambassador before the Supreme Court that the two marines, could have not cast their vote, is not a correct representation of the Italian law. If that is true, then it amounts to misrepresentation of the facts, which itself is quite serious.

Be that, as it may, when the two mariners were in India, the Supreme Court, could have been reminded of its own verdict in Ankul Chandra Pradhan (1997) case where, it was held that the undertrials are not entitled to cast their vote as per the provisions of the Representation of People Act. If, the two Italian offenders who were facing trial of murder in India, could have been denied the right to cast their vote, the Supreme Court would not have violated any domestic law, and even if there was some criticism, it was worth keeping in view the gravity of the offence and the sanctity of rule of law in a sovereign jurisdiction.  
The Italian Government can assert its claim that the shooting took place in international waters and that the marines were acting in their official capacity, to justify their action of not returning the two marines. If that happens, besides action permissible against the ambassador, other legal recourse will be to issue arrest warrants and declaring them as absconders. But that may not ensure their return. Like, Warren Anderson has refused to appear before the Indian Court despite warrants of arrest and he being declared absconder in the Bhopal tragedy due to gas leak from the Union Carbide plant there.

It is at the political and diplomatic level alone that pressure can be put on Italy to respect the sovereignty of India, commitments made before its highest court to return the marines in good faith and as per their promise to India, which is the essence of international law.

(The writer is an advocate of the Supreme Court.)

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