The Supreme Court of India on 18 January 2013 decided that Kerala had no jurisdiction to investigate into the matter of Italian Marines shooting incident in which two fishermen were killed on 15 February 2012. The Union Government was directed by the Supreme Court bench of two Judges comprising Chief Justice Altamas Kabir and J. Chelameswar for setting up of a special court for proceeding ahead with the trials of the two Italian Marines namely Massimilano Latorre and Salvatore Girone, accused of shooting the two fishermen.
The highest judiciary body of India described that the Union Government of India had the jurisdiction to move ahead with the process of investigation and trial on the two Italian Marines.
Conditions Put Forward by the Supreme Court
The Supreme Court bench in its decision lifted the orders of the High Court of Kerala that restricted the movement of the marines form the state and report to the City Commissioner of Kochi Police Station but also ordered that the same will be regulated for them at Delhi in which they can leave Delhi only after taking a leave from the court and reporting to the Station House Commissioner at Chanakyapuri Police Station, New Delhi once in a week, the relaxation may be extended further.
The Court also ordered that the petitioner marines would remain under the control of Italian Embassy at Delhi and their movements will be monitored by it. The embassy will be responsible for making the duo report to the trial court when ever required to do so. Their passport, which has been surrendered to the trial court at Kollam would be transferred to the Union Home Ministry by the Court itself.
The Apex Court also directed the Special Court to be constituted to carry on with the matter following the provisions enshrined in the Maritime Zones Act, 1976, the Indian Penal Code, the Cr.P.C. The Court also directed the Special Court that in situations of conflict between the United Nations Convention on the Law of the Sea (UNCLOS) 1982 and the domestic law, it should follow the provisions mentioned in the UNCLOS.
How Jurisdiction is Valid?
The Supreme Court mentioned certain terms and condition for validating the question of Jurisdiction.
The Points mentioned by the Court are
• The question of Jurisdiction doesn’t prevent the petitioners from invoking the provisions mentioned under Article 100 of UNCLOS 1982 and the rights of Union of India and its Courts from carrying on the investigation or to probe into the incident
• In case the Republic of India as well as the Republic of Italy have similar concurrent jurisdiction to the matter then the question of Jurisdiction holds itself to a better status
• India has the rights to exercise the rights of sovereignty up to 24 nautical miles from the baseline (the basis on which the width of territorial water is measured) under both its Domestic Law and the Public International Law. In certain cases, it has its limitations to exercise the rights within the Exclusive Economic Zone
• The incident of shooting the two fishermen from the marines took place within the contiguous zone and hence the country had all the rights to prosecute them following the justice system for criminals practiced in India, but it should also be a subject to the provisions mentioned in the Article 100 provided in the UNCLOS 1982.
Reasons for which Kerala has no rights to carry on the Jurisdiction
Kerala Police has no Jurisdiction to carry on the investigation because it is one of the Federal Units of the Union of India and hence has no authority for continuing the trial on the two accused marines. They are outside the Jurisdiction limit of the State Unit.
As per the Seventh Schedule of the (Article 246) List I - Union List the centre has the rights to exercise the defence related issues in India.
Italy’s Stand on the Issue
• The Republic of Italy is also carrying proceedings as per the penal provisions of available in the country against the two accused marines. The available panel provisions of Italy can result into the sentence of 21 years of imprisonment to the marines.
• Italy has also been declaring its right in carrying out the prosecution of the two marines, since very beginning.