TaxTMI 
TaxTMI 
2013 (1) TMI 739
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....o.130 of 2nd August, 2011, a Protocol of Agreement was purportedly entered into on 11th October, 2011, between the Ministry of Defence - Naval Staff and Italian Shipowners' Confederation (Confitarma), pursuant to which the Petitioner Nos.2 and 3 in the writ Petition, who are also the Petitioner Nos.1 and 2 in the Special Leave Petition, were deployed along with four others, as "Team Latorre", on board the "M.V. Enrica Lexie" on 6th February, 2012, to protect the said vessel and to embark thereon on 11th February, 2011, from Galle in Sri Lanka. The said Military Deployment Order was sent by the Italian Navy General Staff to the concerned Military Attaches in New Delhi, India and Muscat, Oman. A change in the disembarkation plans, whereby the planned port of disembarkation was shifted from Muscat to Djibouti, was also intimated to the concerned Attaches. 2. While the aforesaid vessel, with the Military Protection Detachment on board, was heading for Djibouti on 15th February, 2012, it came across an Indian fishing vessel, St. Antony, which it allegedly mistook to be a pirate vessel, at a distance of about 20.5 nautical miles from the Indian sea coast off the State of Kerala, and o....
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....nd 26th February, 2012, several relatives of the deceased sought impleadment in the Writ Petition and were impleaded as Additional Respondents Nos.4, 5 and 6. 6. During the pendency of the Writ Petition, the Presenting Officer within the Tribunal of Rome, Republic of Italy, intimated the Ministry of Defence of Italy on 24th February, 2012, that Criminal Proceedings No.9463 of 2012 had been initiated against the Petitioner Nos.2 and 3 in Italy. It was indicated that punishment for the crime of murder under Section 575 of the Italian Penal Code is imprisonment of at least 21 years. 7. After entering appearance in the writ petition, the Union of India and its Investigating Agency filed joint statements therein on 28th February, 2012, on behalf of the Union of India and the Coast Guard, with the Kerala High Court, along with the Boarding Officers Report dated 16th- 17th February, 2012, as an annexure. On 5th March, 2012, the Consul General filed a further affidavit on behalf of the Republic of Italy, annexing additional documents in support of its claim that the accused had acted in an official capacity. In the affidavit, the Consul General reasserted that Italy had exclusive jur....
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....oresaid judgment of the Kerala High Court, the Petitioners filed Special Leave Petition (Civil) No.20370 of 2012, challenging the order of dismissal of their Writ Petition by the Kerala High Court. 11. As will be evident from what has been narrated hereinabove, the subject matter and the reliefs prayed for in Writ Petition (Civil)No.4542 of 2012 before the Kerala High Court and S.L.P.(C) No.20370 of 2012 are the same as those sought in Writ Petition (Civil) No.135 of 2012. 12. Accordingly, the Special Leave Petition and the Writ Petition have been heard together. 13. Simply stated, the case of the Petitioners is, that the Petitioner Nos.2 and 3, had been discharging their duties as members of the Italian Armed Forces, in accordance with the principles of Public International Law and an Italian National Law requiring the presence of armed personnel on board commercial vessels to protect them from attacks of piracy. It is also the Petitioners' case that the determination of international disputes and responsibilities as well as proceedings connected therewith, must necessarily be between the Sovereign Governments of the two countries and not constituent elements of a Fed....
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....sions of the Constitution of India. 16. Learned counsel submitted that the Scheme of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, hereinafter referred to as "the Maritime Zones Act, 1976", contemplates limited jurisdiction of the Central Government over each of the Maritime Zones divided into the "Territorial Waters", the "Contiguous Zones" and the "Exclusive Economic Zones". Learned counsel also submitted that Sections 3, 5, 7 and 15 of the Act contemplate the existence of such division of zones as a direct consequence of rights guaranteed under Public International Law, including the United Nations Convention on the Law of the Sea, hereinafter referred to as, "the UNCLOS". 17. Mr. Salve submitted that the extent of jurisdiction of a State beyond its coastline is provided in Section 3 of the Maritime Zones Act, 1976. Sub-section (2) of Section 3 indicates that the limit of the Territorial Waters is the line every point of which is at a distance of twelve nautical miles from the nearest point of the appropriate baseline. Section 5 of the aforesaid Act provides that the Contiguous Zone of India is an area beyond and adj....
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...., as well as UNCLOS, to exercise sovereign rights, not amounting to sovereignty. Mr. Salve submitted that the Act nowhere contemplates conferral of jurisdiction on any coastal unit forming part of any Maritime Zone adjacent to its coast. Accordingly, the arrest and detention of the Petitioner Nos.2 and 3 by the police authorities in the State of Kerala was unlawful and was liable to be quashed. Mr. Salve also went on to urge that notwithstanding the provisions of the Maritime Zones Act, 1976, India, as a signatory of the UNCLOS, is also bound by the provisions thereof. Submitting that since the provisions of the 1976 Act and also UNCLOS recognise the primacy of Flag State jurisdiction, the Petitioner No.1 i.e. the Republic of Italy, has the preemptive right to try the Petitioner Nos.2 and 3 under its local laws. 21. Mr. Salve submitted that provisions, similar to those in the Maritime Zones Act, 1976, relating to the extent of territorial waters and internal waters and the right of "innocent passage", are provided in Articles 8, 17 and 18 of the Convention. Mr. Salve submitted that Article 17 sets down in clear terms that subject to the Convention, ships of all States, whether c....
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....le 33 of the Convention under Section 4, which deals with Contiguous Zones. Mr. Salve submitted that Article 33 provides that in a zone contiguous to its territorial sea, a coastal State may exercise the control necessary to : (i) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (ii)punish infringement of the above laws and regulations committed within its territory or territorial sea. However, the Contiguous Zone may not extend beyond 24 nautical miles from the baseline from which the breadth of the territorial sea is measured. Accordingly, since the incident occurred outside the territorial waters, the State of Kerala exceeded its jurisdiction and authority in acting on the basis of the FIR lodged against the Petitioner Nos.2 and 3 at Neendakara, Kollam, and in keeping them in continued detention. 25. Referring to Part V of the Convention, which deals with Exclusive Economic Zones, Mr. Salve pointed out that Article 56 under the said Part indicates the rights, jurisdiction and duties of the coastal State in the Exclusive Economic Zone so as to include the St....
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....uct of any inquiry held by the concerned State into any such marine casualty or incident of navigation. The same provisions are also reflected in Article 97 of the Convention, in which it has been indicated that in the event of a collision or any other incident of navigation concerning a ship on the High Seas, involving the penal or disciplinary responsibility of the Master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. 27. Lastly, Mr. Salve referred to Article 100, which may be of relevance to the facts of this case, as it requires all States to cooperate to the fullest extent in the repression of piracy on the High Seas or in any other place outside the jurisdiction of any State. 28. Mr. Salve submitted that the publication of a Notification by the Ministry of Home Affairs on 27th August, 1981, under Sub-section (7) of Section 7 of the Maritime Zones Act, 1976, extending the application of Section 188 of the Code of Criminal Procedure, 1973, to the Exclusive Econom....
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..... Mr. Salve submitted that pursuant thereto the Italian vessel, instead of proceeding further into the high seas, returned to Cochin Port and was, thereafter, detained by the Kerala police authorities. Mr. Salve submitted that it was necessary to construe the provisions of the Maritime Zones Act, 1976, in the light of the UNCLOS, which gives rise to the question as to which of the provisions would have primacy in case of conflict. 30. Referring to the decision of this Court in Aban Loyd Chiles Offshore Limited vs. Union of India & Anr. [(2008) 11 SCC 439], Mr. Salve submitted that in the said decision, this Court had held that from a reading of Sections 6 and 7 of the Maritime Zones Act, 1976, it is clear that India has been given only certain limited sovereign rights in respect of its Continental Shelf and Exclusive Economic Zone, which cannot be equated to extending the sovereignty of India over its Continental Shelf and Exclusive Economic Zone, as in the case of Territorial Waters. However, Sections 6(6) and 7(7) of the Maritime Zones Act, 1976, empower the Central Government, by notification, to extend the enactment in force in India, with such restrictions and modificati....
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....in the Union of India. Mr. Salve submitted that it would thus be clear, that if an offence was committed beyond the Contiguous Zone, the State concerned could not proceed beyond 24 nautical miles from the baseline in pursuit of the vessel alleged to have committed the offence. Mr. Salve submitted that it was not contemplated under the Maritime Zones Act, 1976, that the policing powers of a coastal State would proceed beyond the Contiguous Zone and into the Exclusive Economic Zone or High Seas, though certain provisions of the Customs Act and the Customs Tariff Act had been extended to areas declared as "designated areas" under the said Act. 33. Mr. Salve contended that the stand of the Union of India has been that the provisions of UNCLOS cannot be applied in the facts of the case, since the Maritime Zones Act, 1976, which is a domestic Act, is a departure from UNCLOS, and Article 27 of UNCLOS was not a part of the Indian domestic law. Further, in anticipation of the submissions on behalf of the Respondents, Mr. Salve urged that the judgment of the Permanent Court of International Justice in the Case of S.S. Lotus (Fr. v. Turk.) [(1927) P.C.I.J.] which involved claims between Fr....
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....r. Salve submitted that the acceptance of such an assertion would negate the rights of innocent passage. 37. Mr. Salve submitted that once it is accepted that it must be Parliament's intention to recognise the Exclusive Economic Zone and to create a legal regime for exercise of the sovereign rights in respect of the said zone, then, it must necessarily follow that a Parliamentary intent has to be read in conjunction with Article 55 of the UNCLOS. It must then follow that the sovereign rights in the said zone must be read subject to the specific legal regime established in Part V of UNCLOS. 38. As far as the Lotus decision is concerned, Mr. Salve contended that such decision had been rendered in the facts involving the collision of a French vessel with a Turkish vessel, which ultimately led to the 1952 Geneva Convention for the unification of certain rules relating to penal jurisdiction in matters of collisions, which overruled the application of the principles of concurrent jurisdiction over marine collisions. Mr. Salve urged that a reading of Articles 91, 92, 94 and 97 of UNCLOS clearly establishes that any principle of concurrent jurisdiction that may have been recognis....
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.... of the Continental Shelf and Exclusive Economic Zone of the country. The Continental Shelf of India comprises the seabed beyond the territorial waters to a distance of 200 nautical miles. The Exclusive Economic Zone represents the sea or waters over the Continental Shelf. Mr. Salve submitted that the language of the various enactments and the manner in which the same have been interpreted, has given rise to the larger question of sovereign immunity. Mr. Salve submitted that while Italy signed the UNCLOS in 1973 and ratified it in January, 1995, India signed the Convention in 1982 and ratified the same on 29th June, 1995. Referring to Sections 2 and 4 of the Indian Penal Code read with Section 179 of the Code of Criminal Procedure, Mr. Salve urged that the same would stand excluded in their operation to the domestic Courts on the ground of sovereign immunity. 43. Mr. Salve lastly urged that in order to understand the presence of the Italian marines on board the M.V. Enrica Lexie, it would be necessary to refer to the Protocol Agreement entered into between the Ministry of Defence - Naval Staff and Italian Shipowners' Confederation (Confitarma) on 11th October, 2011. Mr. S....
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....aly in New Delhi to the Ministry of External Affairs, Government of India, referring to the case involving the vessel in question. Since the same encapsulates in a short compass the case of the Petitioners, the same in its entirety is extracted hereinbelow : "EMBASSY OF ITALY NEW DELHI NOTE VERBALE The Embassy of Italy presents its compliments to the Ministry of External Affairs, Government of India and has the honour to refer to the case of the ship Enrica Lexie as per Note Verbale n.71 dated February 18th 2012. The Embassy of Italy would like to recall that according to principles of customary international law, recognized by several decisions of International Courts. State organs enjoy jurisdictional immunity for acts committed in the exercise of their official functions. The Italian Navy Military Department that operated in international waters on board of the ship Enrica Lexie must be considered as an organ of the Italian State. Their conduct has been carried out in the fulfillment of their official duties in accordance with national regulations (Italian Act nr.107/2011), directives, instructions and orders, as well as the pertinent rules on piracy contained in the 19....
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....Embassy of Italy, New Delhi, avails itself of this opportunity to renew to the Ministry of External Affairs, Government of India, the assurances of its highest consideration. New Delhi, 29th February, 2012. Consulate General of Italy, Mumbai." 45. In fact, shorn of all legalese, the aforesaid note emphasises the stand of the Italian Government that the conduct of the Petitioner Nos.2 and 3 was in fulfilment of their official duties in accordance with national regulations, directives, instructions and orders, as well as the rules of piracy contained in UNCLOS and the relevant UN Security Council Resolutions on Piracy off the Horn of Africa. 46. Mr. Salve submitted that in the special facts of the case, the Petitioners were entitled to the reliefs prayed for in the Writ Petition and the Special Leave Petition. 47. Mr. Gourab Banerji, Additional Solicitor General, who appeared for the Union of India, focussed his submissions on two issues raised by the Petitioners, namely, :- (i) Whether Indian Courts have territorial jurisdiction to try Petitioner Nos.2 and 3 under the provisions of the Indian Penal Code, 1860? (ii) If so, whether the Writ Petitioners are entitle....
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....he Petitioners in relying firstly on the UNCLOS and only, thereafter, on the provisions of the Maritime Zones Act, 1976, Mr. Banerji submitted that such approach was misconceived and was contrary to the precepts of Public International Law. 52. Mr. Banerji submitted that the case of the Petitioners that the Indian Courts had no jurisdiction to take cognizance of the offence which is alleged to have taken place in the Contiguous Zone, which was beyond the territorial waters of India, as far as India was concerned, was misconceived. The Contiguous Zone would also be deemed to be a part of the territory of India, inasmuch as, the Indian Penal Code and the Code of Criminal Procedure had been extended to the Contiguous Zone/Exclusive Economic Zone by virtue of the Notification dated 27th August, 1981, issued under Section 7(7) of the Maritime Zones Act, 1976. Mr. Banerji submitted that according to the Union of India, the domestic law is not inconsistent with the International law and in fact even as a matter of international law, the Indian Courts have jurisdiction to try the present offence. The learned Additional Solicitor General submitted that in order to determine the issue of ....
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....also submitted that the Indian Penal Code and the Code of Criminal Procedure had been extended by the Central Government to the Exclusive Economic Zone. The Schedule to the Notification is in two parts. Part I provides the list of enactments extended, whereas Part II provides the provision for facilitating the enforcement of the said Acts. Accordingly, while Part I of the Schedule to the Notification is relatable to Section 7(7)(a) of the Act, Part II of the Schedule is relatable to Section 7(7)(b) thereof. 56. The learned Additional Solicitor General submitted that the case of the Union of India rests on two alternative planks. According to one interpretation, the bare reading of Section 7(7) and the Notification suggests that once the I.P.C. has been extended to the Exclusive Economic Zone, which includes the Contiguous Zone, the Indian Courts have territorial jurisdiction to try offences committed within the Contiguous Zone. Another plank of the case of the Union of India, involves a contextual interpretation of Section 7(7) and the 1981 Notification. Mr. Banerji submitted that presuming that the Notification provides for the extension of Indian law relating to only those mat....
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....n and relates to offences committed on journeys or voyages. Mr. Banerji submitted that when such an offence is committed, it could be inquired into or tried by a court through or into whose local jurisdiction the person or thing passed in the course of that journey or voyage. Mr. Banerji submitted that the voyage contemplated under the said provision is not the voyage of the Enrica Lexie, but the voyage of St. Antony. 58. Apart from the above, the main case of the Union of India is that on a plain reading of the language of Section 7(7) or on a contextual interpretation thereof, the Republic of India has jurisdiction to try the Petitioner Nos.2 and 3 in its domestic courts. Even the 1981 Notification could be read down and related to Section 5 of the 1976 Act. Referring to the decision of this court in Hukumchand Mills Vs. State of Madhya Pradesh [AIR 1964 SC 1329] and N. Mani Vs. Sangeetha Theatre & Ors. [(2004) 12 SCC 278], Mr. Banerji urged that if the executive authority had the requisite power under the law, and if the action taken by the executive could be justified under some other power, mere reference to a wrong provision of law would not vitiate the exercise of power b....
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....permit fishing vessels to sail beyond the territorial waters of their respective States. Mr. Banerji urged that such a submission may have been relevant in the context of Section 4(2) I.P.C., wherein the expression "registered in India" had been used, but the same would have no significance to the facts of this case, since the said provisions were not being invoked for the purposes of this case. The learned ASG contended that even if the fishing vessel had sailed beyond its permitted area of fishing, the same was a matter of evidence, which stage had yet to arrive. Mr. Banerji contended that, on the other hand, what was more important were the provisions of the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981, wherein in the Statement of Objects and Reasons of the Act it has been indicated that the Act was in the nature of umbrella legislation and it was envisaged that separate legislation for dealing in greater detail with the regulation, exploration and exploitation of particular resources in the country's Maritime Zones and to prevent poaching activities of foreign fishing vessel to protect the fishermen who were citizens of India, should be un....
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....rime involving homicide. The learned Additional Solicitor General pointed out that the title of Article 97 reads that it provides for Penal jurisdiction in matters of collision or any other incident of navigation and that, as had been pointed out by Mr. Harish Salve, appearing for the Petitioners, Article 97(1), inter alia, provides that in the event of collision or any other incident of navigation concerning the ship on the high seas, involving the penal or disciplinary responsibility of the Master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. Mr. Banerji urged that the expression "incident of navigation" used in Article 97, did not contemplate a situation where a homicide takes place and, accordingly, the provisions of Article 97 of the UNCLOS would not have any application to the facts of the present case. 65. On Article 11 of the Geneva Convention on the Law of the Seas, 1958, Mr. Banerji submitted that the killing of an Indian national on board an Indian vessel co....
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....doctrine of sovereign immunity. However, this did not mean that there was no rule of International law on the subject. It only meant that there is difference of opinion as to what that rule is. Each country delimits for itself the bounds of sovereign immunity. Each creates for itself the exceptions from it. 67. In this line of reasoning, Mr. Banerji submitted that the provisions of Section 2 I.P.C. and its impact would have to be considered before the impact of Customary International Law could be considered. Mr. Banerji pointed out that Section 2 I.P.C. begins with the words - "every person" which makes all offenders, irrespective of nationality, punishable under the Code and not otherwise, for every act or omission contrary to the provisions thereof, of which he is found to be guilty within India. Reference was made by Mr. Banerji to the decision of this Court in Mobarik Ali Ahmad Vs. State of Bombay [AIR 1957 SC 857], wherein this Court had held that the exercise of criminal jurisdiction depends on the location of the offence, and not on the nationality of the alleged offender or his corporeal presence in India. This Court pointed out that the plain meaning of the phrase "eve....
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....rji urged that as per the Policy of the Government of India, no foreign arms or foreign private armed guards or foreign armed forces personnel, accompanying merchant vessels, are allowed diplomatic clearance. Nor is it the policy of the Government of India to enter into any Status of Forces Agreement (SOFA) by which foreign armed forces are given immunity from criminal prosecution. Mr. Banerji sought to emphasise the fact that the United Convention or Jurisdictional Immunities of States and their Property, 2004, had not come into force. Accordingly, the Petitioners' case that the said Convention reflects the Customary International Law, cannot be accepted. 70. Also referring to the decision in Pinochet's case No.3 [(2000) 1 AC 147], Mr. Banerji submitted that the said case concerned the immunity of a former Head of State from the criminal jurisdiction of another State, not the immunity of the State itself in proceedings designed to establish its liability to damages. The learned ASG submitted that even though the Republic of Italy may claim sovereign immunity when sued in an Indian Court for damages for the unlawful acts of its citizens, it was clear that even if it is a....
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....ted in Article 297 and the 1976 Act in relation to the municipal laws of India. 74. Mr. Giri submitted that the Maritime Zones Act, 1976, and the Notification dated 27th August, 1981, extending the provisions of Section 188-A Cr.P.C. to the Exclusive Economic Zone, were prior in point of time to UNCLOS 1982 and the date on which India ratified the said convention. Mr. Giri submitted that despite the legislative competence of Parliament under Article 253, read with Entry 14 of List I of the Seventh Schedule, conferring on Parliament the power to enact laws to give effect to the provisions of a Treaty, Agreement or Convention, to which India is a party, the provisions of UNCLOS have not as yet been made part of the Municipal Law of India. Mr. Giri urged that several International Conventions have been ratified by the Indian Republic to give effect to provisions of Conventions to which India is a signatory, such as the Diplomatic Relations (Vienna Convention) Act, 1972, to give effect to the provisions of the Vienna Convention on Diplomatic Relations, as also the Carriage by Air Act, 1972, to give effect to the provisions of the Warsaw Convention. In the instant case, however, the ....
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....reaty or Agreement and the Executive was quite competent to issue orders, but if in consequence of the exercise of the executive power, rights of the citizens or others are restricted or infringed or laws are modified, the exercise of power must be supported by legislation. 78. It was also submitted that in the event the provisions of UNCLOS were implemented without the sanction of Parliament, it would amount to modification of a municipal law covered by the Maritime Zones Act, 1976. Mr. Giri contended that the 1976 Act, which was enacted under Article 297 of the Constitution, is a law which applies to the Territorial Waters, Contiguous Zone, Continental Shelf and the Exclusive Economic Zone over the seas in which the incident had taken place. If, therefore, the provisions of the Convention were to be accepted as having conferred jurisdiction on the Indian judiciary, such a situation would be contrary to the provisions of the Maritime Zones Act, 1976, which contemplates the extension of domestic penal laws to the Exclusive Economic Zone in such a manner that once extended, it would, for all applicable purposes, include such zone to be a part of the territory of India. Mr. Giri s....
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....435C, Part XV-A of the aforesaid Act. In this case, the fishing boat was registered at Colachel in the State of Tamil Nadu under Registration No. TN/15/MFB/2008. According to Mr. Giri, the question as to whether the fishing vessel was registered under the Merchant Shipping Act or not was irrelevant for the purpose of this case and, since the incident had taken place within 20.5 nautical miles from the Indian coastline, falling within the Contiguous Zone/Exclusive Economic Zone of India, it must be deemed to be a part of the Indian territory for the purpose of application of the Indian Penal Code and the Cr.P.C. by virtue of Section 7(7) of the Maritime Zones Act read with Notification S.O.671(E) dated 27th August, 1981. Mr. Giri submitted that the case made out in the Special Leave Petition did not merit any interference with the judgment of the learned Single Judge of the Kerala High Court, nor was any interference called for in the Writ Petition filed by the Petitioners in this Court. Learned counsel submitted that both the petitions were liable to be dismissed with appropriate cost. 82. Two issues, both relating to jurisdiction, fall for determination in this case. While the ....
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....returned thereto after the incident of firing, the State of Kerala was entitled to inquire into the incident, is equally untenable, since the cause of action for the filing of the F.I.R. occurred outside the jurisdiction of the Kerala Police under Section 154 of the Cr.P.C. The F.I.R. could have been lodged at Neendakara Police station, but that did not vest the Kerala Police with jurisdiction to investigate into the complaint. It is the Union of India which was entitled in law to take up the investigation and to take further steps in the matter. 86. Furthermore, in this case, one has to take into account another angle which is an adjunct of Public International Law, since the two accused in the case are marines belonging to the Royal Italian Navy, who had been deputed on M.V. Enrica Lexie, purportedly in pursuance of an Italian Decree of Parliament, pursuant to which an Agreement was entered into between the Republic of Italy on the one hand and the Italian Shipowners' Confederation (Confitarma) on the other. This takes the dispute to a different level where the Governments of the two countries become involved. The Republic of Italy has, in fact, from the very beginning, assert....
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....the Security Council of the United Nations on 30th November, 2009, wherein while recognizing the menace of piracy, particularly off the coast of Somalia, the United Nations renewed its call upon States and regional organizations that had the capacity to do so, to take part in the fight against piracy and armed robbery off the Sea of Somalia in particular. 92. The provisions of the Maritime Zones Act, 1976, take note of the Territorial Waters, the Contiguous Zone, the Continental Shelf and the Exclusive Economic Zone. Section 7 of the said enactment deals with the Exclusive Economic Zone of India and stipulates the same to be an area beyond and adjacent to the Territorial Waters extending upto 200 nautical miles from the nearest point of the baseline of the Kerala coast. It is quite clear that the Contiguous Zone is, therefore, within the Exclusive Economic Zone of India and the laws governing the Exclusive Economic Zone would also govern the incident which occurred within the Contiguous Zone, as defined under Section 5 of the aforesaid Act. The provisions of the UNCLOS is in harmony with and not in conflict with the provisions of the Maritime Zones Act, 1976, in this regard. Art....
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....ion. The context in which the expression has been used in Article 97 of the Convention seems to indicate that the same refers to an accident occurring in the course of navigation, of which collision between two vessels is the principal incident. An incident of navigation as intended in the aforesaid Article, cannot, in my view, involve a criminal act in whatever circumstances. In what circumstances the incident occurred may be set up as a defence in a criminal action that may be taken, which legal position is accepted by both the countries which have initiated criminal proceedings against the two marines. Even the provisions of Article 100 of UNCLOS may be used for the same purpose. Whether the accused acted on the misunderstanding that the Indian fishing vessel was a pirate vessel which caused the accused to fire, is a matter of evidence which can only be established during a trial. If the defence advanced on behalf of the Petitioner Nos. 2 and 3 is accepted, then only will the provisions of Article 100 of the Convention become applicable to the facts of the case. 95. The decision in the Lotus Case (supra) relied upon by the learned Additional Solicitor General would accordingl....
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....pon the Maritime Flag under which vessels sail, because, no State can extend its territorial jurisdiction to the high seas. Of course, the aforesaid principle is subject to the right of "hot pursuit", which is an exception to the exclusiveness of the flag jurisdiction over ships on the high seas in certain special cases. 96. This takes us to another dimension involving the concept of sovereignty of a nation in the realm of Public International Law. The exercise of sovereignty amounts to the exercise of all rights that a sovereign exercises over its subjects and territories, of which the exercise of penal jurisdiction under the criminal law is an important part. In an area in which a country exercises sovereignty, its laws will prevail over other laws in case of a conflict between the two. On the other hand, a State may have sovereign rights over an area, which stops short of complete sovereignty as in the instant case where in view of the provisions both of the Maritime Zones Act, 1976, and UNCLOS 1982, the Exclusive Economic Zone is extended to 200 nautical miles from the baseline for measurement of Territorial Waters. Although, the provisions of Section 188A I.P.C. have been e....
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....he Contiguous Zone over which, both under the provisions of the Maritime Zones Act, 1976, and UNCLOS 1982, India is entitled to exercise rights of sovereignty. However, as decided by this Court in the Aban Loyd Chiles Offshore Ltd. case (supra), referred to by Mr. Salve, Sub-section (4) of Section 7 only provides for the Union of India to have sovereign rights limited to exploration, exploitation, conservation and management of the natural resources, both living and non-living, as well as for producing energy from tides, winds and currents, which cannot be equated with rights of sovereignty over the said areas, in the Exclusive Economic Zone. It also provides for the Union of India to exercise other ancillary rights which only clothes the Union of India with sovereign rights and not rights of sovereignty in the Exclusive Economic Zone. The said position is reinforced under Sections 6 and 7 of the Maritime Zones Act, 1976, which also provides that India's sovereignty extends over its Territorial Waters while, the position is different in respect of the Exclusive Economic Zone. I am unable to accept Mr. Banerji's submissions to the contrary to the effect that Article 59 of the Conven....
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....pon the question of jurisdiction of the Union of India to investigate into the incident and for the Courts in India to try the accused may be reconsidered. If it is found that both the Republic of Italy and the Republic of India have concurrent jurisdiction over the matter, then these directions will continue to hold good. 102. It is made clear that the observations made in this judgment relate only to the question of jurisdiction prior to the adducing of evidence and once the evidence has been recorded, it will be open to the Petitioners to re-agitate the question of jurisdiction before the Trial Court which will be at liberty to reconsider the matter in the light of the evidence which may be adduced by the parties and in accordance with law. It is also made clear that nothing in this judgment should come in the way of such reconsideration, if such an application is made. 103. The Special Leave Petition and the Writ Petition, along with all connected applications, are disposed of in the aforesaid terms. .........................................................CJI. (ALTAMAS KABIR) New Delhi Dated:January 18, 2013. IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURIS....
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....in the First Schedule; and (c) such other territories as may be acquired." But that deals only with geographical territory. Article 297 deals with 'maritime territory'[2]. 6. Article 297(3) authorises the Parliament to specify from time to time the limits of various maritime zones such as, territorial waters, continental shelf, etc. Clauses (1) and (2) of the said article make a declaration that all lands, minerals and other things of value and all other resources shall vest in the Union of India. "Article 297: Things of value within territorial waters or continental shelf and resources of the exclusive economic zone to vest in the Union.- 1) All lands, minerals and other things of value underlying the ocean within the territorial waters, or the continental shelf, or the exclusive economic zone, of India shall vest in the Union and be held for the purposes of the Union. 2) All other resources of the exclusive economic zone of India shall also vest in the Union and be held for the purposes of the Union. 3) The limits of the territorial waters, the continental shelf, the exclusive economic zone, and other maritime z....
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....aters was initially understood to be three nautical miles. It had been extended subsequently, up to six nautical miles by a Presidential proclamation dated 22.3.52 and to twelve nautical miles by another proclamation dated 30.9.67. By Act 80 of 1976 of the Parliament, it was statutorily fixed at 12 nautical miles. The Act also authorizes the Parliament to alter such limit of the territorial waters. 10. The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 80 of 1976 (hereinafter referred to as 'the Maritime Zones Act'), was made by the Parliament in exercise of the authority conferred under Article 297. Except Sections 5 and 7, rest of the Sections of the Act, came into force on 26-08-1976. Sections 5 and 7 came into force, subsequently, on 15-01-1977, by virtue of a notification contemplated under Section 1(2). Section 3(1) declares that the sovereignty of India extends, and has always extended, to the territorial waters of India: "The sovereignty of India extends and has always extended to the territorial waters of India (hereinafter referred to as the territorial waters) and to the seabed and subsoil underlying, and the air space ....
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....he exclusive economic zone, the Union has sovereign rights for the purpose of exploration, exploitation, conservation and management of the natural resources, both living and non- living as well as for producing energy from tides, winds and currents." 13. Whatever may be the implications flowing from the language of the Maritime Zones Act and the meaning of the expression "sovereign rights" employed in Sections 6(2), 6(3)(a)[6] and 7(4)(a), (Whether or not the sovereignty of India extends beyond its territorial waters and to the contiguous zone or not)[7], in view of the scheme of the Act, as apparent from Section 5(5)(a)[8] and Section 7(7)(a)[9], the application of "any enactment for the time being in force in India" (like the Indian Penal Code and the Code of Criminal Procedure), is not automatic either to the contiguous zone or exclusive economic zone. It requires a notification in the official gazette of India to extend the application of such enactments to such maritime zone. The Maritime Zones Act further declares that once such a notification is issued, the enactment whose application is so extended "shall have effect as if" the contiguous zone or exclusive economic zone....
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....at; "all crime is local. The jurisdiction over the crime belongs to the country where the crime is committed" [11]. But that principle is not accepted as an absolute principle any more. The increased complexity of modern life emanating from the advanced technology and travel facilities and the large cross border commerce made it possible to commit crimes whose effects are felt in territories beyond the residential borders of the offenders. Therefore, States claim jurisdiction over; (1) offenders who are not physically present within; and (2) offences committed beyond-the-territory of the State whose "legitimate interests" are affected. This is done on the basis of various principles known to international law, such as, "the objective territorial claim, the nationality claim, the passive personality claim, the security claim, the universality claim and the like"[12]. 19. The protection of Articles 14 and 21 of the Constitution is available even to an alien when sought to be subjected to the legal process of this country. This court on more than one occasion held so on the ground that the rights emanating from those two Articles are not confined only to or dependent upon the....
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....uthority to apply the penal provisions against persons, who "hijack" (described under Section 3[16] of the Anti- Hijacking Act, 1982) an aircraft. The Act does not take into account the nationality of the hijacker. The Act expressly recognises the possibility of the commission of the act of hijacking outside India and provides under Section 6 that the person committing such offence may be dealt with in respect thereof as if such offence had been committed in any place within India at which he may be found. Similarly, Section 3 of the Geneva Conventions Act, 1960, provides that "any person commits or attempts to commit, or abets or procures the commission by any other person of a grave breach of any of the Conventions", either "within or without India", shall be punished. 25. Thus, it is amply clear that Parliament always asserted its authority to make laws, which are applicable to persons, who are not corporeally present within the territory of India (whether are not they are citizens) when such persons commit acts which affect the legitimate interests of this country. 26. In furtherance of such assertion and in order to facilitate the prosecution of the offenders contemplate....
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....ternational Law by Malcolm N. Shaw page 665 [sixth Edition]) 29. Therefore, I am of the opinion that the Parliament, undoubtedly, has the power to make and apply the law to persons, who are not citizens of India, committing acts, which constitute offences prescribed by the law of this country, irrespective of the fact whether such acts are committed within the territory of India or irrespective of the fact that the offender is corporeally present or not within the Indian territory at the time of the commission of the offence. At any rate, it is not open for any Municipal Court including this Court to decline to apply the law on the ground that the law is extra-territorial in operation when the language of the enactment clearly extends the application of the law. 30. Before parting with the topic, one submission of Shri Salve is required to be dealt with: Shri Salve relied heavily upon the decision reported in Aban Loyd Chilies Offshore Ltd. v. Union of India and ors. [(2008) 11 SCC 439], for the purpose of establishing that the sovereignty of this country does not extend beyond the territorial waters of India and therefore, the extension of the Indian Penal Code beyond the....
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....conomic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58." Further, Article 89 makes an express declaration that: "No State may validly purport to subject any part of the high seas to its sovereignty." 36. 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. Exclusive economic zone is defined under Article 55 as follows: "Article 55: Specific legal regime of the exclusive economic zone: The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention." That being the case, I am of the opinion that irrespective of the meaning of the expression "incident of navigation", Article 97 has no appl....
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....na Prasad, AOR, Mr. V.Giri, Sr. Adv., Mr. Ramesh Babu M.R., AOR Hon'ble the Chief Justice and Hon'ble Mr. Justice J. Chelameswar pronounced their separate but concurring judgments of the Bench comprised of Their Lordships. Pursuant to the decision rendered by us in Writ Petition(C)No.135 of 2012 and SLP(C) NO. 20370 of 2012, certain consequential directions are required to be made, since the petitioner Nos.2 and 3 had been granted bail by the Kerala High Court. Since we have held that the State of Kerala as a Unit of the Federal Union does not have jurisdiction to try the matter, we are of the view that till such time as the Special Court is constituted in terms of our judgments, the said petitioners should be removed to Delhi and be kept on the same terms and conditions of bail, as was granted by the High Court, except for the following changes:- 1. The orders passed by the Kerala High Court restricting the movement of the said petitioners is lifted, but the same conditions will stand reinstated, as and when the said petitioners come to Delhi and they shall not leave the precints of Delhi with....
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.... of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. 2. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them. 3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State. [2] As early as 1927, Philip C. Jessup, who subsequently became a judge of the International Court of Justice, stated that the territorial waters are "as much a part of the territory of a nation as is the land itself". Hans Kelsen declared that "the territorial waters form part of the territory of the littoral State". In the Grisbadarna Case (1909), between Norway and Sweden, the Permanent Court of Arbitration referred to the territorial waters as "the maritime territory" which is an essential appurtenance of t....
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....the Convention on the Territorial Sea, 1958 provide that the coastal state's sovereignty extends over its territorial sea and to the airspace and seabed and the subsoil thereof, subject to the provisions of the Convention and of international law........ --- from International Law by Malcolm N. Shaw [sixth edition](page 569 - 570) [4] It is well established that the coastal state has sovereignty over its territorial waters, the sea-bed and subsoil underlying such waters, and the air space above them, subject to the obligations imposed by international law. Recently, in the North Sea Continental Shelf cases, the International Court of Justice declared that a coastal state has "full sovereignty" over its territorial sea. This principle of customary international law has also been enshrined in article 1 of the Geneva Convention, and remains unaffected in the draft convention. ----from The New Law of Maritime Zones by P.C.Rao (Page 22) [5] .......... Central Government may whenever it considers necessary so to do having regard to the International Law and State practice alter by notification in the Official Gazette the limit of ........." [6] Section 6(3)(a) : sovereign rights for ....