Italian Ambassador Daniele Mancini may face tough questions today from the Supreme Court when it takes up the issue of Italy reneging on its undertaking to send back its marines charged with the killing of two Indian fishermen off the Kerala coast last year.
Law Minister Ashwani Kumar, who described the Italian government's refusal to send back the marines as "unprecedented", still hoped that the Supreme Court's order will be complied with by Italy as the deadline for their return ends on March 22.
"The communication by the Italian government declining to send back the marines after giving undertaking to the highest court of the country through its Ambassador is unprecedented," Kumar told PTI today.
"The Prime Minister has already made a statement on the issue (in Parliament). The Attorney General ( G E VAhanvati) will convey the government's stand today depending upon the response of the Italian government in the court.
"It is sincerely hoped that the order of the Supreme Court will be complied with," he said.
Some legal experts feel that Mancini can be hauled up by the apex court for contempt and that he cannot take seek diplomatic immunity.
Harish Salve, who quit as Italian government's counsel, feels that Mancini breached a solemn undertaking given to Supreme Court which can take action against the envoy including sending him to jail.
Salve said he feels that the Ambassador will find it "very hard" to explain in the court why he went back on the undertaking.
Responding to a query on enforcing action against a person enjoying diplomatic immunity, the senior lawyer said, "Our Constitution commands everybody will act in aid and according to directions of the Supreme Court".
The apex court had on March 15 restrained the Italian Ambassador from leaving the country without its permission, taking exception to his government's refusal to send back the marines.
The court had issued notices to Mancini and also the two marines asking them to file their response by Monday.
The two marines, Massimiliano Lattore and Salvatore Girone, were allowed by the apex court to go to Italy to cast their vote in the elections there after the Italian Ambassador had given an assurance to send them back.
Government is mulling various options including declaring the Italian Ambassador as persona non-grata and downgrading of relations.
It has already asked its Ambassador-designate to Italy Basant Kumar Gupta not to proceed to Rome as a review of the entire gamut of ties with Italy was underway by the government.
If this comes through, there will be no Ambassador-level representation between the two countries. Going forward on these options would depend on the outcome of the Supreme Court hearing.
As legal and diplomatic circles debate the issue, Government has also to consider what step it needs to take if for some reason Mancini decides not to respond to the court notice by Monday.
Keeping in view the sensitive nature of the case, Government may also seek directions from the apex court on the next course of action. The matter was posted for further hearing after the Attorney General pleaded for an urgent hearing on this issue.
On the last hearing, the AG brought the issue before the bench saying that "its a breach of undertaking given to the highest court of the land and the government is extremely concerned about it".
The two marines were on board Italian vessel 'Enrica Lexie', when they shot dead two fishermen off the Kerala coast on February 15, last year. The marines were allowed by the apex court on February 22 to travel to Italy for four weeks under the control and custody of the Italian Ambassador, to cast their ballot in the elections scheduled there for February 24-25.
The court had said that the marines are only allowed to travel to Italy and remain there and will have to return to India. The Italian government, which had given an undertaking before the apex court that the marines will be sent back, had on March 11 sent a 'Note Verbale' to the Indian government informing it that the two will not be sent back.
Earlier, on January 18, the apex court had turned down the Italian government's plea that the Indian courts had no jurisdiction in the case and had held that the two marines should be tried by the Centre by constituting a special court to conduct their trial. The Supreme Court had directed that the two marines be shifted to Delhi and would remain under it's 'custody' till the special court is set up.
The court had said that the Kerala government did not have the jurisdiction to prosecute the marines and it is to be done by the Centre in the special court to be set up after consulting the CJI.
The court had also said that all the conditions imposed on them by the Kerala court, while granting them bail will remain till the special court is set up and the marines will mark their presence at least once a week before the Chanakyapuri Police Station.
Government, which has come under flak from the BJP and Left parties for the way it has handled the issue, also has the option of expelling Mancini.
A strong section within the Congress feels that contempt action against the Italian envoy would be more effective in blunting the opposition attack.
Taking a tough stand in Parliament, the Prime Minister had warned Italy of "consequences" for bilateral ties if it did not send back the two marines.
Singh accused Italy of "violating every rule of diplomatic discourse" and had termed as "unacceptable" its decision not to send back the marines.
The Italian government, sources said, can use the route of pushing for government-level talks to find a resolution to the row. Mancini can also seek more time to file his response which is not unusual in legal cases. The sources said the Italian Ambassador can also insist on diplomatic immunity.
Article 29 of the Vienna Convention on Diplomatic Relations says that "The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity."
Legal experts are of the view that once the diplomat submits to court's jurisdiction, he cannot take the benefit of diplomatic immunity. Following the Supreme Court direction that Mancini should not leave the country, airports had been alerted to prevent him from leaving India.
Italy has contended that the shooting of Indian fishermen took place in international waters and hence they cannot be tried in Indian courts, a view rejected by the Government.