ALTAMAS KABIR, CJI.
1. The past decade has witnessed a sharp increase in acts of piracy on the high seas
off the Coast of Somalia and even in the vicinity of the Minicoy islands forming part of
the Lakshadweep archipelago. In an effort to counter piracy and to ensure freedom of
navigation of merchant shipping and for the protection of vessels flying the Italian flag in
transit in International seas, the Republic of Italy enacted Government Decree 107 of 2011,
converted into Law of Parliament of Italy No.130 of 2nd August, 2011, to protect Italian
ships from piracy in International seas. Article 5 of the said legislation provides for
deployment of Italian Military Navy Contingents on Italian vessels flying the Italian flag,
to counter the growing menace of piracy on the seas. Pursuant to the said law of
Parliament of Italy No.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 on account of firing from
the Italian vessel, two persons in the Indian fishing vessel were killed. After the said incident,
the Italian vessel continued on its scheduled course to Djibouti. When the vessel had
proceeded about 38 nautical miles on the High Seas towards Djibouti, it received a
telephone message, as well as an e- mail, from the Maritime Rescue Co-ordination Centre,
Mumbai, asking it to return to Cochin Port to assist with the enquiry into the incident.
Responding to the message, the M.V. Enrica Lexie altered its course and came to Cochin
Port on 16th February, 2012. Upon docking in Cochin, the Master of the vessel was
informed that First Information Report (F.I.R.) No.2 of 2012 had been lodged with the
Circle Inspector, Neendakara, Kollam, Kerala, under Section 302 read with Section 34 of
the Indian Penal Code (I.P.C.) in respect of the firing incident leading to the death of the
two Indian fishermen. On 19th February, 2012, Massimilano Latorre and Salvatore Girone,
the Petitioner Nos.2 and 3 in Writ Petition No.135 of 2012, were arrested by the Circle
Inspector of Police, Coastal Police Station, Neendakara, Kollam, from Willington Island
and have been in judicial custody ever since.
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3. On 20th February, 2012, the petitioner Nos.2 and 3 were produced before the
Chief Judicial Magistrate (C.J.M.), Kollam, by the Circle Inspector of Police, Coastal
Police Station, Neendakara, who prayed for remand of the accused to judicial custody.
4. The petitioners thereupon filed Writ Petition No.4542 of 2012 before the Kerala
High Court, under Article 226 of the Constitution, challenging the 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. The Writ Petitioners prayed for quashing
of F.I.R. No.2 of 2012 on the file of the Circle Inspector of
Police, Neendakara, Kollam District, as the same was purportedly without
jurisdiction, contrary to law and null and void. The Writ Petitioners also prayed for a
declaration that their arrest and detention and all proceedings taken against them were
without jurisdiction, contrary to law and, therefore, void. A further prayer was made for
the release of the Petitioner Nos.2 and 3 from the case.
5. Between 22nd and 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
jurisdiction over the writ petitioners and invoked sovereign and functional immunity.
8. The Kerala High Court heard the matter and directed the Petitioners to file their
additional written submissions, which were duly filed on 2nd April, 2012, whereupon the
High Court reserved its judgment. However, in the meantime, since the judgment in the
Writ Petition was not forthcoming, the Petitioners filed the present Writ Petition under
Article 32 of the Constitution of India on 19th April, 2012, inter alia, for the following
reliefs:-
“(i) Declare that any action by all the Respondents in relation to the alleged incident
referred to in Para 6 and 7 above, under the Criminal Procedure Code or any other Indian law,
would be illegal and ultra vires and violative of Articles 14 and 21 of the Constitution of
India; and
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(ii) Declare that the continued detention of Petitioners 2 and 3 by the State of Kerala
is illegal and ultra vires being violative of the principles of sovereign immunity and also
violative of Art. 14 and 21 of the Constitution of India; and
(iii) Issue writ of Mandamus and/or any other suitable writ, order or direction
under Article 32 directing that the Union of India take all steps as may be necessary to secure
custody of Petitioners 2 and 3 and make over their custody to Petitioner No.1.”
9. During the pendency of the said Writ Petition in this Court, the Kerala State
Police filed charge sheet against the Petitioner Nos.2 and 3 herein on 18th May, 2012 under
Sections 302, 307, 427 read with Section 34 Indian Penal Code and Section 3 of the
Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms
on Continental Shelf Act, 2002, hereinafter referred to as ‘the SUA Act’. On 29th May,
2012, the learned Single Judge of the Kerala High Court dismissed Writ Petition (Civil)
No.4542 of 2012 on two grounds. The learned Single Judge held that under the Notification
No. SO 67/E dated 27th August, 1981, 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 learned Single Judge also held that under the
provisions of the SUA Act, the State of Kerala has jurisdiction upto 200 nautical miles from
the Indian coast, falling within the Exclusive Economic Zone of India.
10. Aggrieved by the aforesaid 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 Federal Structure. In
other words, in cases of international disputes, the State units/governments within a
federal structure, could not be regarded as entities entitled to maintain or participate in
proceedings relating to the sovereign acts of one nation against another, nor could such
status be conferred upon them by the Federal/Central Government. It is also the case of
the writ petitioners that the proceedings, if any, in such cases, could only be initiated by the
Union at its discretion. Consequently, the arrest and continued detention of the Petitioner
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Nos.2 and 3 by the State of Kerala is unlawful and based on a misconception of the law
relating to disputes between two sovereign nations.
14. Appearing for the writ petitioners, Mr. Harish N. Salve, learned Senior
Advocate, contended that 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, as contained in the United Nations General
Assembly Resolution titled “Declaration on Principles of International Law
Concerning Friendly Relations and Cooperation between States in accordance with the
Charter of the United Nations”. Mr. Salve contended that these aforesaid principles require
that any proceeding, whether diplomatic or judicial, where the conduct of a foreign nation
in the exercise of its sovereign functions is questioned, has to be conducted only at the level
of the Federal or Central Government and could not be the subject matter of a proceeding
initiated by a Provincial/State Government.
15. Mr. Salve submitted that the incident which occurred on 15th February, 2012,
was an incident between two nation States and any dispute arising therefrom would be
governed by the principles of International Legal Responsibility under which the rights
and obligations of the parties will be those existing between the Republic of India and the
Republic of Italy. Mr. Salve submitted that no legal relationship exists between the
Republic of Italy and the State of Kerala and by continued detention of the members of the
Armed Forces of the Republic of Italy, acting in discharge of their official duties, the State
of Kerala had acted in a manner contrary to Public International Law, as well as the
provisions of the Constitution of India.
94. The next question which arises is whether the incident of firing could be said to
be an incident of navigation. 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 accordingly be dependent on whether the provisions of Article 97 of
the Convention are attracted in the facts of this case. As already indicated hereinbefore, the
expression “incident of navigation” in Article 97 cannot be extended to a criminal act,
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involving the killing of two Indian fishermen on board an Indian fishing vessel, although,
the same was not flying the Indian flag. If at all, Article 100 of the Convention may stand
attracted if and when the defence version of apprehension of a pirate attack is accepted by
the Trial Court. In the Lotus case, the question relating to the extent of the criminal
jurisdiction of a State was brought to the Permanent Court of International Justice in
1927. The said case related to a collision between the French Steamship ‘Lotus’ and the
Turkish Steamship ‘Boz-Kourt’, which resulted in the sinking of the latter ship and the death
of eight Turkish subjects. Once the Lotus arrived at Constantinople, the Turkish
Government commenced criminal proceedings both against the Captain of the Turkish vessel
and the French Officer of the Watch on board the Lotus. On both being sentenced to
imprisonment, the French Government questioned the judgment on the ground that Turkey
had no jurisdiction over an act committed on the open seas by a foreigner on board a
foreign vessel, whose flag gave it exclusive jurisdiction in the matter. On being referred to
the Permanent Court of
International Justice, it was decided that Turkey had not acted in a manner which was
contrary to International Law since the act committed on board the Lotus had effect on the
Boz-Kourt flying the Turkish flag. In the ninth edition of Oppenheim’s International Law,
which has been referred to in the judgment under consideration, the nationality of ships in the
high seas has been referred to in paragraph 287, wherein it has been observed by the
learned author that the legal order on the high seas is based primarily on the rule of
International Law which requires every vessel sailing the high seas to possess the nationality
of, and to fly the flag of, one State, whereby a vessel and persons on board the vessel are
subjected to the law of the State of the flag and in general subject to its exclusive
jurisdiction. In paragraph 291 of the aforesaid discourse, the learned author has defined the
scope of flag jurisdiction to mean that jurisdiction in the high seas is dependent upon 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 extended to
the Exclusive Economic Zone, the same are extended to areas declared as “designated
areas” under the Act which are confined to installations and artificial islands, created for the
purpose of exploring and exploiting the natural resources in and under the sea to the extent
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of 200 nautical miles, which also includes the area comprising the Continental Shelf of a
country. However, the Exclusive Economic Zone continues to be
part of the High Seas over which sovereignty cannot be exercised by any nation.
97. In my view, since India is a signatory, she is obligated to respect the provisions of
UNCLOS 1982, and to apply the same if there is no conflict with the domestic law. In
this context, both the countries may have to subject themselves to the provisions of
Article 94 of the Convention which deals with the duties of the Flag State and, in
particular, sub-Article (7) which provides that each State shall cause an inquiry to be held
into every marine casualty or incident of navigation on the high seas involving a ship flying
its flag and causing loss of life or serious injury to nationals of another State. It is also
stipulated that the Flag State and the other State shall cooperate in the conduct of any
inquiry held by that other State into any such marine casualty or incident of navigation.
98. The principles enunciated in the Lotus case (supra) have, to some extent, been
watered down by Article 97 of UNCLOS 1982. Moreover, as observed in Starke’s
International Law, referred to by Mr. Salve, the territorial criminal jurisdiction is founded
on various principles which provide that, as a matter of convenience, crimes should be
dealt with by the States whose social order is most closely affected. However, it has also
been observed that some public ships and armed forces of foreign States may enjoy a
degree of immunity from the territorial jurisdiction of a nation.
99. This brings me to the question of applicability of the provisions of the Indian Penal
Code to the case in hand, in view of Sections 2 and 4 thereof. Of course, the applicability
of Section 4 is no longer in question in this case on account of the concession made on behalf
of the State of Kerala in the writ proceedings before the Kerala High Court. However,
Section 2 of the Indian Penal Code as extracted hereinbefore provides otherwise.
Undoubtedly, the incident took place within the 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 nonliving, 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
Convention permits States to assert rights or jurisdiction beyond those specifically
provided in the Convention.
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100. What, therefore, transpires from the aforesaid discussion is 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.
101. While, therefore, holding that the State of Kerala has no jurisdiction to
investigate into the incident, I am also of the view that till such time as it is proved that the
provisions of Article 100 of the
UNCLOS 1982 apply to the facts of this case, it is the Union of India which has
jurisdiction to proceed with the investigation and trial of the Petitioner Nos.2 and 3 in
the Writ Petition. The Union of India is, therefore, directed, in consultation with the Chief
Justice of India, to set up a Special Court to try this case and to dispose of the same in
accordance with the provisions of the Maritime Zones Act, 1976, the Indian Penal Code, the
Code of Criminal Procedure and most importantly, the provisions of UNCLOS 1982,
where there is no conflict between the domestic law and UNCLOS 1982. The pending
proceedings before the Chief Judicial Magistrate, Kollam, shall stand transferred to the
Special Court to be constituted in terms of this judgment and it is expected that the same
shall be disposed of expeditiously. This will not prevent the Petitioners herein in the two
matters from invoking the provisions of Article 100 of UNCLOS 1982, upon adducing
evidence in support thereof, whereupon 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.
Chelameswar, J.
1. I agree with the conclusions recorded in the Judgment of the Hon’ble Chief
Justice. But, I wish to supplement the following.
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2. The substance of the submission made by Shri Harish Salve, learned senior
counsel for the petitioners is;
(1) The incident in question occurred beyond the territory of India to which location
the sovereignty of the country does not extend; and Parliament cannot extend the
application of the laws made by it beyond the territory of India. Consequentially, the two
marines are not amenable to the jurisdiction of India;
Alternatively it is argued; (2) that the incident, which resulted in the death of two
Indians is an “incident of navigation” within the meaning of Article 97[1] of the United
Nations Convention on the Law of the Sea (hereinafter referred to as UNCLOS) and
therefore, no penal proceedings may be instituted against the two marines except before
the Judicial authorities of the ‘Flag State’ or the State of which the marines are nationals.
3. The authority of the Sovereign to make laws and enforce them against its
subjects is undoubted in constitutional theory. Though written Constitutions prescribe
limitations, either express or implied on such authority, under our Constitution, such
limitations are with respect to territory [Article 245(1)] or subject matter [Article 246] or
time span of the operation of the laws [Articles 249 & 250] or the inviolable rights of the
subjects [fundamental rights] etc. For the purpose of the present case, we are concerned
only with the limitation based on territory.
4. That leads me to the question as to what is the territory of the Sovereign
Democratic Republic of India ?
5. The territory of India is defined under Article 1;
“Name and territory of the Union.-
1) India, that is Bharat, shall be a Union of States.
2) The States and the territories thereof shall be as specified in the First
Schedule.
3) The territory of India shall comprise–
(a) The territories of the States;
(b) The Union territories specified 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.-
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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 zones, of India shall be such as may be specified, from time to
time, by or under any law made by Parliament.
7. Two things follow from the above declaration under Article 297. Firstly, India
asserts its authority not only on the land mass of the territory of India specified under
Article 1, but also over the areas specified under Article 297. It authorises the Parliament
to specify the limits of such areas (maritime zones). The nature of the said authority may
not be the same for the various maritime zones indicated in Article 297. However, the
preponderance of judicial authority appears to be that the sovereignty of the coastal state
extends to the territorial waters[3].
8. The sovereignty of a Nation / State over the landmass comprised within the
territorial boundaries of the State, is an established principle of both constitutional theory and
International Law. The authority of the Sovereign to make and enforce laws within the
territory over which the sovereignty extends is unquestionable in constitutional theory.
That the sovereignty of a ‘coastal State’ extends to its territorial waters, is also a well
accepted principle of International Law[4] though there is no uniformly shared legal
norm establishing the limit of the territorial waters – “maritime territory”. Whether the
maritime territory is also a part of the national territory of the State is a question
on which difference of opinion exists. Insofar as this Court is concerned, a
Constitution Bench in B.K.Wadeyar v. M/s. Daulatram Rameshwarlal (AIR 1961 SC
311) held at para 8 as follows:
“……… These territorial limits would include the territorial waters of
India…………….”
9. Insofar the Republic of India is concerned, the limit of the territorial waters
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
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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 over, such waters.”
Under sub-section (2), the limit of the territorial waters is specified to be twelve
nautical miles from the nearest point of the appropriate baseline:
“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.”
Sub-section (3) authorises the Government of India to alter the limit of the territorial
waters by a notification approved by both the Houses of Parliament, with due regard to the
International Law and State practice:
“Notwithstanding anything contained in sub-section (2), the Central Government may,
whenever it considers necessary so to do having regard to International Law and State
practice, alter, by notification in the Official Gazette, the limit of the territorial
waters.”
11. Section 5 defines contiguous zone to be an area beyond and adjacent to the
territorial waters extending up to twenty-four nautical miles from the nearest point of the
appropriate baseline:
“Section 5(1): The contiguous zone of India (hereinafter referred to as the contiguous
zone) is an area beyond and adjacent to the territorial waters and the limit of the
contiguous zone is the line every point of which is at a distance of twenty-four nautical
miles from the nearest point of the baseline referred to in sub-section (2) of section 3.”
This limit also can be altered by the Government of India, in the same manner as the
limit of the territorial waters. Section 6 describes the continental shelf, whereas Section 7
defines the exclusive economic zone. While the Parliament authorizes the Government of
India[5] under Sections 3(3), 5(2) and 7(2) respectively to alter the limits of territorial
waters, contiguous zone and exclusive economic zone with the approval of both the Houses
of the Parliament, the law does not authorise the alteration of the limit of the continental
shelf.
12. While Section 3 declares that “the sovereignty of India extends, and has always
extended, to the territorial waters”, no such declaration is to be found in the context of
contiguous zone. On the other hand, with reference to continental shelf, it is declared
under Section 6(2) that “India has, and always had, full and exclusive sovereign rights in
respect of its continental shelf”. With reference to exclusive economic zone, Section
7(4)(a) declares that “in the 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.”
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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, as
the case may be, “is part of the territory of India”.
Creation of such a legal fiction is certainly within the authority of the Sovereign
Legislative Body.
14. In exercise of the power conferred by Section 7(7) of the Maritime Zones Act,
the Government of India extended the application of both the Indian Penal Code and the
Code of Criminal Procedure to the exclusive economic zone by a notification dated
27-08-1981. By the said notification, the Code of Criminal Procedure also stood
modified. A new provision – Section 188A – came to be inserted in the Code of Criminal
Procedure, which reads as follows:
“188A. Offence committed in exclusive economic zone: When an offence is
committed by any person in the exclusive economic zone described in sub-section(1) of
Section 7 of the Territorial Waters, Continental Shelf, Exclusive Economic
Zone and Other Maritime Zones Act, 1976 (80 of 1976) or as altered by notification, if any,
issued under sub-section (2) thereof, such person may be dealt with in respect of such
offence as if it had been committed in any place in which he may be found or in
such other place as the Central Government may direct under Section 13 of the Said Act.”
15. Under the Constitution, the legislative authority is distributed between the
Parliament and the State Legislatures. While the State legislature’s authority to make
laws is limited to the territory of the State, Parliament’s authority has no such limitation.
16. Though Article 245[10] speaks of the authority of the Parliament to make laws
for the territory of India, Article 245(2) expressly declares –
“No law made by Parliament shall be deemed to be invalid on the ground that it would
have extra territorial operation”. In my view the declaration is a fetter on the jurisdiction of
the Municipal Courts including Constitutional Courts to either declare a law to be
unconstitutional or decline to give effect to such a law on the ground of extra
territoriality. The first submission of Shri Salve must, therefore, fail.
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17. Even otherwise, territorial sovereignty and the ability of the sovereign to
make, apply and enforce its laws to persons (even if not citizens), who are not
corporeally present within the sovereign’s territory, are not necessarily co-extensive.
18. No doubt that with respect to Criminal Law, it is the principle of 19th century
English jurisprudence that;
“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 citizenship of this country[13]. As a
necessary concomitant, this country ought to have the authority to apply and enforce the
laws of this country against the persons and things beyond its territory when its legitimate
interests are affected. In assertion of such a principle, various laws of this country are made
applicable beyond its territory.
20. Section 2 read with 4 of the Indian Penal Code[14] makes the provisions of
the Code applicable to the offences committed “in any place without and beyond” the
territory of India; (1) by a citizen of India or (2) on any ship or aircraft registered in
India, irrespective of its location, by any person not necessarily a citizen[15]. Such a
declaration was made as long back as in 1898. By an amendment in 2009 to the said
Section, the Code is extended to any person in any place “without and beyond the
territory of India”, committing an offence targeting a computer resource located in India.
21. Similarly, Parliament enacted the Suppression of Unlawful Acts Against Safety of
Maritime Navigation And Fixed Platforms on Continental Shelf Act, 2002 (Act No.69 of
2002), under Section 1(2), it is declared as follows:
“It extends to the whole of India including the limit of the territorial waters, the
continental shelf, the exclusive economic zone or any other maritime zone of India within
the meaning of section 2 of the Territorial Waters, Continental Shelf, Exclusive Economic
Zone and other Maritime Zones Act,
1976 (80 of 1976).”
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(emphasis supplied)
Thereby expressly extending the application of the said Act beyond the limits of the
territorial waters of India.
22. Section 3 of the said Act, insofar it is relevant for our purpose is as follows:
“(1) Whoever unlawfully and intentionally-
(a) commits an act of violence against a person on board a fixed platform or a
ship which is likely to endanger the safety of the fixed platform or, as the case may be,
safe navigation of the ship shall be punished with imprisonment for a term which may
extend to ten year and shall also be liable to fine;”
(emphasis supplied)
23. The expression “ship” for the purpose of the said Act is defined
under Section 2(h):
“(h) “ship” means a vessel of any type whatsoever not permanently
attached to the seabed and includes dynamically supported craft submersibles, or any other
floating craft.”
24. Parliament asserted its authority 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 contemplated under Section 4(1) & (2) of the Indian Penal Code, Section 188 of
the Code of Criminal Procedure[17] prescribes the jurisdiction to deal with such offences.
Each one of the above referred enactments also contains a provision parallel to Section
188.
27. Such assertion is not peculiar to India, but is also made by various other
countries. For example, the issue arose in a case reported in R v. Baster [1971] 2 All ER
359 (C.A.). The accused posted letters in Northern Ireland to football pool promoters in
England falsely claiming that he had correctly forecast the results of football matches and
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was entitled to winnings. He was charged with attempting to obtain property by deception
contrary to Section 15 of the Theft Act 1968. The accused contended that when the
letters were posted in Northern Ireland the attempt was complete and as he had never left
Northern Ireland during the relevant period, the attempt had not been committed within the
jurisdiction of the English Courts. It was held:
“The attempt was committed within the jurisdiction because an offence could be said
to be committing an attempt at every moment of the period between the commission of
the proximate act necessary to constitute the attempt and the moment when the attempt
failed; accordingly the accused was attempting to commit the offence of obtaining by
deception when the letter reached its destination within England and thus the offence
was committed within the jurisdiction of the English courts; alternatively it could be
said that the accused made arrangements for the transport and delivery of the letter,
essential parts of the attempt, within the jurisdiction; the presence of the accused within
the jurisdiction was not an essential element of offences committed in England.”
(emphasis supplied)
28. The United States of America made such assertions:
“……….. the provision extending the special maritime and territorial jurisdiction of the
US to include any place outside the jurisdiction of any nation with respect to an offence by
or against a national of the United States. In 1986, following the Achille Lauro incident, the
US adopted the Omnibus Diplomatic Security and Anti-Terrorism Act, inserting into the
criminal code a new section which provided for US jurisdiction over homicide and
physical violence outside the US where a national of the US is the victim. …….”
(International 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
territorial waters of India is impermissible.
31. No doubt, this Court did make certain observations to the effect that under the
Maritime Zones Act;
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“……., India has been given only certain limited sovereign rights and such
limited sovereign rights conferred on India in respect of continental shelf and exclusive
economic zone cannot be equated to extending the sovereignty of India over the
continental shelf and exclusive economic zone as in the case of territorial waters……….”
32. With great respect to the learned Judges, I am of the opinion 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.
33. 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.
34. Coming to the second issue; whether the incident in issue is an “incident of
navigation” in order to exclude the jurisdiction of India on the ground that with respect
to an “incident of navigation”, penal proceedings could be instituted only before the
Judicial Authorities of the “Flag State” or of the State of which the accused is a national.
35. 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”. Article 86 stipulates the application of Part-VII. It reads as follows:
“The provisions of this Part apply to all parts of the sea that are not included in the
exclusive economic 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
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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 application to the exclusive economic
zone. Even under UNCLOS, Article 57 stipulates that “the exclusive economic zone shall
not extend beyond 200 nautical miles from the baselines from which the breadth of the
territorial sea is measured”. It follows from a combined reading of Articles 55 and 57 that
within the limit of 200 nautical miles, measured as indicated under Article 57, the authority
of each coastal State to prescribe the limits of exclusive economic zone is
internationally recognised. The declaration under Section 7(1) of the Maritime Zones Act,
which stipulates the limit of the exclusive economic zone, is perfectly in tune with the terms
of UNCLOS.
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.
