2013 (1) TMI 739 - SC - Indian Laws

Acts of piracy on the high seas - exclusive economic zone - jurisdiction of the State of Kerala and the Circle Inspector of Police, Kollam District, Kerala, to register the F.I.R. and to conduct investigation on the basis thereof or to arrest the petitioner Nos.2 and 3 and to produce them before the Magistrate. - Held that - while India is entitled both under its Domestic Law and the Public International Law to exercise rights of sovereignty upto 24 nautical miles from the baseline on the basis of which the width of Territorial Waters is measured, it can exercise only sovereign rights within the Exclusive Economic Zone for certain purposes. The incident of firing from the Italian vessel on the Indian shipping vessel having occurred within the Contiguous Zone, the Union of India is entitled to prosecute the two Italian marines under the criminal justice system prevalent in the country. However, the same is subject to the provisions of Article 100 of UNCLOS 1982. I agree with Mr. Salve that the Declaration on Principles of International Law Concerning Family Relations and Cooperation between States in accordance with the Charter of the United Nations has to be conducted only at the level of the Federal or Central Government and cannot be the subject matter of a proceeding initiated by a Provincial/State Government. Issue of sovereignty - Held that - sovereignty is not given , but it is only asserted. No doubt, under the Maritime Zones Act, the Parliament expressly asserted sovereignty of this country over the territorial waters but, simultaneously, asserted its authority to determine / alter the limit of the territorial waters. At any rate, the issue is not whether India can and, in fact, has asserted its sovereignty over areas beyond the territorial waters. The issue in the instant case is the authority of the Parliament to extend the laws beyond its territorial waters and the jurisdiction of this Court to examine the legality of such exercise. Even on the facts of Aban Loyd case, it can be noticed that the operation of the Customs Act was extended beyond the territorial waters of India and this Court found it clearly permissible although on the authority conferred by the Maritime Zones Act. The implications of Article 245(2) did not fall for consideration of this Court in that Judgment. The expression incident of navigation occurring under Article 97 of the UNCLOS is not a defined expression. Therefore, necessarily the meaning of the expression must be ascertained from the context and scheme of the relevant provisions of the UNCLOS. Article 97 occurs in Part-VII of the UNCLOS, which deals with HIGH SEAS . From the language of Article 86 it is made very clear that Part-VII applies only to that part of the sea which is not included in the exclusive economic zone, territorial waters, etc. - Therefore, 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. For that reason, the second submission of Shri Salve should also fail.

Summary

Issues Involved:
1. Jurisdiction of the Kerala State Police.
2. Applicability of Indian Penal Code and Code of Criminal Procedure.
3. Interpretation of UNCLOS and its provisions.
4. Sovereign immunity and international law principles.
5. Rights and obligations under the Maritime Zones Act, 1976.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Kerala State Police:
The incident involving the shooting of two Indian fishermen by Italian marines occurred 20.5 nautical miles off the coast of Kerala, within the Contiguous Zone. The Kerala State Police registered an FIR and arrested the marines. The court held that the Kerala State Police lacked jurisdiction over the Contiguous Zone, as it is beyond their territorial waters. The extension of the Indian Penal Code (IPC) and Code of Criminal Procedure (CrPC) to the Contiguous Zone does not vest the Kerala Police with the power to investigate or try the offense. The Union of India, not the State of Kerala, is entitled to take cognizance, investigate, and prosecute offenses in the Contiguous Zone.

2. Applicability of Indian Penal Code and Code of Criminal Procedure:
The court examined whether the IPC and CrPC apply to the incident. The Maritime Zones Act, 1976, extends Indian laws to the Exclusive Economic Zone (EEZ) and Contiguous Zone through notifications. The court noted that the IPC and CrPC had been extended to the EEZ, but this does not automatically confer jurisdiction on state authorities. The Union of India retains jurisdiction over such zones for enforcing domestic laws.

3. Interpretation of UNCLOS and its Provisions:
The United Nations Convention on the Law of the Sea (UNCLOS) sets out the legal framework for maritime activities. Article 97 of UNCLOS, which deals with penal jurisdiction in matters of collision or any other incident of navigation, was scrutinized. The court held that the firing incident does not fall under "incident of navigation" as intended by Article 97. Instead, it is a criminal act subject to domestic laws. Article 100 of UNCLOS, which calls for cooperation in suppressing piracy, was also considered, but it was determined that it did not apply to the facts of this case.

4. Sovereign Immunity and International Law Principles:
The Italian marines claimed sovereign immunity, arguing that they were acting in their official capacity under Italian law and international anti-piracy regulations. The court acknowledged the principles of sovereign immunity but emphasized that such immunity does not extend to criminal acts. The court also referenced the "Declaration on Principles of International Law Concerning Friendly Relations and Cooperation between States" which requires that disputes involving sovereign acts be handled at the federal level, not by state units.

5. Rights and Obligations under the Maritime Zones Act, 1976:
The court analyzed the rights and obligations conferred by the Maritime Zones Act, 1976. The Act defines the territorial waters, Contiguous Zone, and EEZ, and extends certain sovereign rights to these zones. However, it distinguishes between sovereign rights and full sovereignty. The court concluded that while India has sovereign rights in the EEZ and Contiguous Zone, these do not equate to full sovereignty, and the Union of India, not state authorities, has jurisdiction over these areas.

Conclusion:
The court directed the Union of India to set up a Special Court to try the case, emphasizing that the State of Kerala does not have jurisdiction. The Special Court will proceed in accordance with the Maritime Zones Act, IPC, CrPC, and UNCLOS, ensuring that international obligations are respected. The court also allowed the Italian marines to be moved to Delhi, under the custody of the Italian Embassy, until the Special Court is constituted. The judgment underscores the importance of adhering to international law principles while asserting domestic legal rights in maritime zones.