Supreme Court Hears Writ Petition by Foreign State Against Union of India Regarding Criminal Jurisdiction Over Its Military Personnel for Deaths at Sea. The Petitioners Challenge the Jurisdiction of Kerala Police and Invoke Sovereign Immunity, Relying on International Law, Maritime Zones Act, 1976, and UNCLOS, Seeking Transfer of Custody to Italy.

Writ petition under Article 32 of the Constitution of India and special leave petition against the order of the Kerala High Court dismissing the petitioners' challenge to the jurisdiction of Kerala police and the legality of the arrest and detention of two Italian Navy marines accused of killing two Indian fishermen while on anti-piracy duty.

The petitioners sought declarations that all actions by the respondents under Indian law were illegal and ultra vires, that the continued detention of the marines violated sovereign immunity and Articles 14 and 21, and a writ of mandamus directing the Union of India to secure the custody of the marines and hand them over to Italy.

The marines were arrested by Kerala police after their vessel, M.V. Enrica Lexie, fired upon an Indian fishing boat, killing two fishermen. The petitioners contended that the incident occurred on the high seas/EEZ, that the marines were acting in official capacity for anti-piracy protection, and that only the Italian state had jurisdiction. The Kerala High Court upheld the jurisdiction, leading to the present proceedings.

The Kerala High Court, by its judgment dated 29 May 2012, dismissed Writ Petition No.4542 of 2012, holding that under the Indian Penal Code as extended to the Exclusive Economic Zone and under the SUA Act, the State of Kerala had jurisdiction over the incident up to 200 nautical miles from the coast. This order was challenged in the Supreme Court.

Whether the State of Kerala had territorial or extraterritorial jurisdiction to register FIR and investigate the incident occurring at 20.5 nautical miles off the coast, in the Exclusive Economic Zone, under the Maritime Zones Act, 1976 and the SUA Act. Whether the Italian marines, as members of the Italian Armed Forces deployed on an official anti-piracy mission under Italian law, are entitled to sovereign and functional immunity from criminal prosecution in India. Whether the Union of India as the federal government had exclusive competence to handle matters involving foreign sovereign acts, excluding the State of Kerala, and whether the arrest violated principles of international law and comity.

Shri Harish Salve, learned Senior Counsel for the petitioners, argued that the acquiescence of the Union of India to the unlawful arrest by the State of Kerala was in violation of long-standing Customary International Law, Principles of International Comity and Sovereign Equality Amongst States, as reflected in UN General Assembly Resolution 'Declaration on Principles of International Law Concerning Friendly Relations and Cooperation between States'. He contended that any proceeding concerning the conduct of a foreign nation in exercise of its sovereign functions must be conducted at the federal or central government level, and not by a provincial/state government. The incident was an international dispute between two sovereign States, governed by principles of International Legal Responsibility, and no legal relationship existed between Italy and the State of Kerala. Mr. Salve further submitted that the Scheme of the Maritime Zones Act, 1976, particularly Sections 3, 5, 7 and 15, read with UNCLOS, contemplates limited and defined jurisdictional zones (territorial waters, contiguous zone, exclusive economic zone) with the Central Government exercising specific powers over each zone. The arrest and detention by Kerala were thus contrary to Public International Law and the Constitution.

Ratio not explicitly mentioned

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. the acquiescence of the Union of India to the unlawful arrest and detention of the Petitioner Nos.2 and 3 by the State of Kerala was in violation of the long standing Customary International Law, Principles of International Comity and Sovereign Equality Amongst States the entire Indian Penal Code had been extended to the Exclusive Economic Zone and the territorial jurisdiction of the State of Kerala was not limited to 12 nautical miles only.

The Italian government enacted Decree 107 of 2011 (Law No.130 of 2 August 2011) providing for deployment of naval personnel on Italian vessels for anti-piracy protection. Pursuant to this, Petitioner Nos.2 and 3 (Massimilano Latorre and Salvatore Girone) were deployed on M.V. Enrica Lexie on 6 February 2012. On 15 February 2012, the vessel encountered Indian fishing boat St. Antony about 20.5 nautical miles off Kerala coast, and firing resulted in two deaths. The vessel was called to Cochin Port and arrived on 16 February 2012, whereupon FIR No.2 of 2012 was registered under Section 302/34 IPC. The marines were arrested on 19 February 2012 and produced before the CJM, Kollam, on 20 February 2012. The Republic of Italy and the marines filed Writ Petition No.4542 of 2012 before the Kerala High Court challenging the jurisdiction and legality of the arrest. During pendency, the Union of India filed a statement on 28 February 2012. Meanwhile, Italy initiated criminal proceedings in Rome against the marines on 24 February 2012. The Kerala High Court reserved judgment after hearing arguments, and on 29 May 2012, a Single Judge dismissed the writ petition holding that Kerala had jurisdiction under the IPC (extended to EEZ) and the SUA Act. Prior to the dismissal, on 19 April 2012, the petitioners filed Writ Petition (Civil) No.135 of 2012 under Article 32 of the Constitution before the Supreme Court seeking similar reliefs, and later filed Special Leave Petition (Civil) No.20370 of 2012 against the High Court order. Both matters were heard together by the Supreme Court.

• Italian Government Decree 107 of 2011 (Law of Parliament of Italy No.130 of 2nd August, 2011): Article 5
• Indian Penal Code, 1860: 302, 34, 307, 427
• Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002: 3
• Constitution of India: 14, 21, 32, 226
• Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976: 3, 5, 7, 15
• United Nations Convention on the Law of the Sea:
• Italian Penal Code: 575