# 4 S.C.R. 595 REPUBLIC OF ITALY AND ORS v. UNION OF INDIA AND ORS

- **Citation:** [2013] 4 S.C.R. 595
- **Court:** Supreme Court of India
- **Decided:** 2013-01-18
- **Bench:** Altamas Kabir, J. Chelameswar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/4-s-c-r-595-republic-of-italy-and-ors-v-union-of-india-and-ors-29045
- **Pages:** 80

## Headnote

International Law:
A
B
. Incident of firing at a distance of about 20. 5 nautical miles c
from the Indian sea-coast of the State of Kera/a - Firing by
officers of naval staff of Italy deployed on merchant ship of
Italy - Resulting in death of two persons on Indian Fishing
Vessel - FIR against two officers u/s. 302134 /PC lodged in
the State of Kera/a - State Police investigated the matter and
D
arrested the accused - Writ Petition u/Art. 226 of the
Constitution by the accused challenging the jurisdiction of
State of Kera/a in registering FIR, in investigating the matter
and in arresting the accused - During pendency of the writ
petition criminal proceedings were also initiated against the
E
accused in Italy under Italian Penal Code - The Consul
General of Italy asserted that Italy had exclusive jurisdiction
over the accused and they· having acted in official capacity
were entitled to sovereign and functional immunity - During
pendency of the judgment of High Court, Republic of Italy
invoked jurisdiction u/Art. 32 of the Constitution for the same
F
reliefs - As the writ petition u/Art. 226 was dismissed, SLP also
filed - HELD: Action by State o' Kera/a was without jurisdiction
because the incident took place within Contiguous Zone on
which the State did not have jurisdiction - Also because in the
case, two sovereign countries were involved and one country
G
had already initiated criminal proceedings against the
accused, State of Kera/a as one of the units of the federal unit
would not have authority to try the accused - 'Declaration on
Principles of International Law Concerning Family Relations
595
H
596
SUPREME COURT REPORTS
[2013] 4 S.C.R.
A and Co-operation between States in accordance with the
Charters of United Nations' has to be conducted at federal
level and not at provincial level - The incident c;annot be said
to be an ''incident of navigation" within the meaning of Art. 97
of UNCLOS - By virtue of extention of the provisions of /PC
B and Cr.P. C. to contiguous zone, Union of India is 1mtitled to
take cognizance, investigate and try the accused - But the
same is subject to the provisions of Art. 100 of UNCLOS -
Direction to Union of India to set up Special Court to try the
case - Accused can also invoke provisions of Article 100 of
c UNCLOS whereupon the question of jurisdiction to investigate
into the incident and for the courts in India to try the accused
would be considered - /ffound that both the countrie1s i.e. India
as well as Italy have concurrent jurisdiction over the matter,
the directions passed in this judgment will continue - Penal
0
Code, 1860 - ss. 302, 307, 427 r/w s.34 - Suppression of
Unlawful Acts Against Safety of Maritime Navigation and Fixed
Platforms on Continental Shelf Act, 2002 - s.3 - United
Nations Convention on the Law of the Sea, 1982 - Articles
97and 100 - Maritime Zones Act, 1976 - Declaration on
Principles of International Law Concerning Family Relations
E and Co-operation Between States in accordance with the
Charters of United Nations - Constitution of India, 1950 - Article
297.
P'etitioner Nos. 2 and 3 and four other officers of
F naval staff of Republic of Italy were deployed in the board
of merchant ship which was flying the Italian Flag. The
deployment was pursuant to a Government decree of
Republic of Italy, which was enacted to protect the Italian
ships from piracy in international seas. At a distance of
G about 20.5 nautical miles from the Indian Sea-Coast, off
the State of Kerala, the Italian ships mistook an Indian
Fishing Vessel to be a pirate vessel and opened fire on
it. Two persons of the Indian Fishing Vessel were killed
on account of the firing. FIR was lodged uls. 302134 IPC
H at the Police Station in the State of Kerala.
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 597
AND ORS.
The Republic of Italy filed a writ petition challenging
A
the jurisdiction of the State of Kera la and that of the State
Police to register the FIR and to conduct investigation
and to arrest th

## Text

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(2013] 4 S.C.R. 595
REPUBLIC OF ITALY AND ORS.
v.
UNION OF INDIA AND ORS.
(Writ Petition (C) No. 135 of 2012 etc.)
JANUARY 18, 2013
[ALTAMAS KABIR, CJI AND J. CHELAMESWAR, JJ.]
International Law:
A
B
. Incident of firing at a distance of about 20. 5 nautical miles c
from the Indian sea-coast of the State of Kera/a - Firing by
officers of naval staff of Italy deployed on merchant ship of
Italy - Resulting in death of two persons on Indian Fishing
Vessel - FIR against two officers u/s. 302134 /PC lodged in
the State of Kera/a - State Police investigated the matter and
D
arrested the accused - Writ Petition u/Art. 226 of the
Constitution by the accused challenging the jurisdiction of
State of Kera/a in registering FIR, in investigating the matter
and in arresting the accused - During pendency of the writ
petition criminal proceedings were also initiated against the
E
accused in Italy under Italian Penal Code - The Consul
General of Italy asserted that Italy had exclusive jurisdiction
over the accused and they· having acted in official capacity
were entitled to sovereign and functional immunity - During
pendency of the judgment of High Court, Republic of Italy
invoked jurisdiction u/Art. 32 of the Constitution for the same
F
reliefs - As the writ petition u/Art. 226 was dismissed, SLP also
filed - HELD: Action by State o' Kera/a was without jurisdiction
because the incident took place within Contiguous Zone on
which the State did not have jurisdiction - Also because in the
case, two sovereign countries were involved and one country
G
had already initiated criminal proceedings against the
accused, State of Kera/a as one of the units of the federal unit
would not have authority to try the accused - 'Declaration on
Principles of International Law Concerning Family Relations
595
H
596
SUPREME COURT REPORTS
[2013] 4 S.C.R.
A and Co-operation between States in accordance with the
Charters of United Nations' has to be conducted at federal
level and not at provincial level - The incident c;annot be said
to be an ''incident of navigation" within the meaning of Art. 97
of UNCLOS - By virtue of extention of the provisions of /PC
B and Cr.P. C. to contiguous zone, Union of India is 1mtitled to
take cognizance, investigate and try the accused - But the
same is subject to the provisions of Art. 100 of UNCLOS -
Direction to Union of India to set up Special Court to try the
case - Accused can also invoke provisions of Article 100 of
c UNCLOS whereupon the question of jurisdiction to investigate
into the incident and for the courts in India to try the accused
would be considered - /ffound that both the countrie1s i.e. India
as well as Italy have concurrent jurisdiction over the matter,
the directions passed in this judgment will continue - Penal
0
Code, 1860 - ss. 302, 307, 427 r/w s.34 - Suppression of
Unlawful Acts Against Safety of Maritime Navigation and Fixed
Platforms on Continental Shelf Act, 2002 - s.3 - United
Nations Convention on the Law of the Sea, 1982 - Articles
97and 100 - Maritime Zones Act, 1976 - Declaration on
Principles of International Law Concerning Family Relations
E and Co-operation Between States in accordance with the
Charters of United Nations - Constitution of India, 1950 - Article
297.
P'etitioner Nos. 2 and 3 and four other officers of
F naval staff of Republic of Italy were deployed in the board
of merchant ship which was flying the Italian Flag. The
deployment was pursuant to a Government decree of
Republic of Italy, which was enacted to protect the Italian
ships from piracy in international seas. At a distance of
G about 20.5 nautical miles from the Indian Sea-Coast, off
the State of Kerala, the Italian ships mistook an Indian
Fishing Vessel to be a pirate vessel and opened fire on
it. Two persons of the Indian Fishing Vessel were killed
on account of the firing. FIR was lodged uls. 302134 IPC
H at the Police Station in the State of Kerala.
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 597
AND ORS.
The Republic of Italy filed a writ petition challenging
A
the jurisdiction of the State of Kera la and that of the State
Police to register the FIR and to conduct investigation
and to arrest them. They prayed for quashing the FIR as
being without jurisdiction, contrary to law, null and void.
The High Court reserved the judgment. In the meantime,
B
the petitioners filed Writ Petition before this Court, asking
for the same reliefs.
During pendency of the Writ Petition u/Art. 32, the
State Police filed charge-sheet against petitioner Nos. 2
and 3 u/ss. 302, 307, 427 r/w. s. 34 IPC and u/s. 3 of the
C
Suppression of Unlawful Acts Against Safety of Maritime
Navigation and Fixed Platforms on Continental Shelf Act,
2002. When the High Court dismissed the Writ Petition,
Special Leave Petition was filed before this Court.
•'
Primarily it was contended on behalf of petitioner
Nos. 2 and 3 that the State Police had no jurisdiction to
investigate the incident; that in view of public international
law, the Courts of the Republic of Italy had jurisdiction
to try the accused and not the Indian Courts, because the
incident occurred beyond the territory of India to which
location sovereignty of India did not extend; that
Parliament cannot extend the application of the laws
enacted by it, beyond the territory of India; that the
incident which resulted in the death of two Indians was
an 'incident of navigation' within the meaning of Article
97 of the United Nations Convention on the Law of the
Sea (UNCLOS).
Disposing of the Writ Petition and Special Leave
Petition, the Court
HELD:
Per Altamas Kabir (CJI):
D
E
F
G
1. India is entitled both under its Domestic Law and
H
598
SUPREME COURT REPORTS
(2013] 4 S.C.R.
A the Public International Law to exercise ri1ghts of
sovereignty upto 24 nautical miles from the baseline on
the basis of which the width of Territorial Waters is
measured. It can exercise sovereign rights wi,thin the
Exclusive Economic Zone only for certain purposes.
B [Para 100] [656-E-F]
2. In an area in which a country 111tercises
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
C 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 milos from the
baseline for measurement of Territorial Waters. Although,
D the provisions of Section 188A l.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 artifi1:ial islands,
created for the purpose of exploring and exploiting the
E natural resources in and under the sea to tl,1e extent 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 l1>e exercised
F by any nation. [Para 96] [654-E-H; 655-A]
3. 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
G 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 pro•1ides that each
State shall cause an inquiry to be held into every marine
casualty or incident of navigation on the high seas
H
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 599
AND ORS.
involving a ship flying its flag and causing loss of life or A
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. [Para 97] [655-A-D]
B
4. The expression "incident of navigation" in Article
97 cannot be extended to a criminal act, 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
C
if and when the defence version of apprehension of a
pirate attack is accepted by the Trial Court. [Para 95] [6538-D]
5. The territorial criminal jurisdiction is founded on
various principles which provide that, as a matter of D
convenience, crimes should be dealt with by the States
whose social order is most closely affected. However,
some public ships and armed forces of foreign States
may enjoy a degree of immunity from the territorial
jurisdiction of a nation. [Para 98] [655-D-F]
E
6. 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, Subsection (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
G
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
F
H
600
SUPREME COURT REPORTS
[2013) 4 S.C.R.
A under Sections 6 and 7 of the Maritime Zones Ac:t, 1976,
which also provides that India's sovereignty extends over
its Territorial Waters while, the position is diff'erent in
respect of the Exclusive Economic Zone. Therefore, it
cannot be said that Article 59 of UNCLAS permits States
B to assert rights or jurisdiction beyond those sp.ecifically
provided in the Convention. [Para 99] [655-G-H; 656-A-D]
7. The incident of firing from the Italian ves:sel on the
Indian shipping vessel having occurred within the
Contiguous Zone, the Union of India is entitled to
C prosecute the two Italian marines under the crimiinal justice
system prevalent in the country. However, the same is
subject to the provisions of Article 100 of UNC:LOS 1982.
The "Declaration on Principles of International Law
Concerning Family Relations and Cooperaticm between
D 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. [Para 100] [656-F-H; 657-A]
E
8. The two accused in the case a.re marines
belonging to the Royal Italian Navy, who had been
deputed on the merchant shipping vessel having Flag of
Italy, purportedly in pursuance of an Italian Decree of
F Parliament, pursuant to which an Agreement was entered
into between the Republic of Italy on the •one hand and
the Italian Shipowners' Confederation (Confiitarma) on the
other. This takes the dispute to a different level where the
Governments of the two countries becomu involved. The
Republic of Italy has, in fact, from the very beginning,
G asserted its right to try the two marines and has already
commenced proceedings against them in Italy under
penal provisions. In such a scenario, the State of Kerala,
as one of the units of a federal unit, would not have any
authority to try the accused who were outside the
H jurisdiction of the State unit. The extension of Section
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 601
AND ORS.
188A l.P.C. to the Exclusive Maritime Zone, of which the
A
Contiguous Zone is also a part, also did not extend the
authority of the Kerala State Police beyond the territorial
waters, which is the limit of its area of operations. [Para
86) [649-D-H; 650-A]
9. The incident took place at a distance of about 20.5
nautical miles from the coastline of the State of Kerala, a
unit within the Indian Union. The incident, therefore,
occurred not within the territorial waters of the coastline
B
of the State of Kerala, but within the Contiguous Zone,
C
over which the State Police of the State of Kerala
ordinarily has no jurisdiction. The State of Kerala had no
jurisdiction over the Contiguous Zone and even if the
provisions of IPC and Cr.P.C. were extended to the
Contiguous Zone, it did not vest the State of Kerala with
D
the powers to investigate and, thereafter, to try the
offence. What, in effect, is the result of such extension is
that the Union of India extended the application of IPC
and Cr.P.C. to the Contiguous Zone, which entitled the
Union of India to take cognizance of, investigate and
prosecute persons who commit any infraction of the
domestic laws within the Contiguous Zone. However,
such a power is not vested with the State of Kerala. [Para
E
84) [648-C-D, F-H; 649-A]
10. Therefore, the State of Kerala has no jurisdiction
F
to investigate into the incident. But 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.
G
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
H
602
SUPREME COURT REPORTS
[2013] 4 S.C.R.
A most importantly, the provisions of UNCLOS 198:2, where
there is no conflict between the domestic 'law and
UNCLOS 1982. The pending proceedings before the
Chief Judicial Magistrate shall stand transferred to the
Special Court to be constituted in terms of this jiudgment.
B [Para 101] [657 ·A·D]
11. This will not prevent the Petitioners hel'ein in the
two matters from invoking the provisions of .11.rticle 100
of UNCLOS 1982, upon adducing evidence Ir~ support
C 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 ltally and the
Republic of India have concurrent jurisdictic•n over the
matter, then these directions will continue to hold good.
D [Para 101] 657-D-F]
Aban Loyd Chiles Offshore Limited vs. Union of India
and Anr. (2008) 11 SCC 439; 2008 (6) SCR 468; Maganbhai
lshwarbhai Patel vs. Union of India and Anr. (11970) 3 SCC
E 400: 1969 (3) SCR 254; Vishaka and Ors. vs. State of
Rajasthan and Ors. (1997) 6 SCC 241: 1997 (3)1 Suppl. SCR
404; Gramophone Co. of India vs. Birendra Balladur Pandey
(1984) 2 SCC 534: 1984 (2) SCR 664; Hukumchand Mills
vs. State of Madhya Pradesh AIR 1964 SC 13:!9: 1964 SCR
F 857; N. Mani vs. Sangeetha Theatre and Ors. (2004) 12 SCC
278; Mobarik Ali Ahmad vs. State of Bombay AIR 1957 SC
857: 1958 SCR 328 - referred to.
S.S. Lotus (Fr. v. Turk.) (1927) P.C.l.J.; Trendtex Trading
G Corporation vs. Bank of Nigeria (1997) 1 Q.B. 529 - referred
to.
Per J. Chelameswar. J: !Supplementinal
HELD: 1.1. The authority of the Sovereign to make
H laws and enforce them against Its subjects is undoubted
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 603
AND ORS.
in constitutional theory. Though written Constitutions
A
prescribe limitations, either express or implied on such
authority, under the Constitution of India, such limitations
with respect to territory are provided under Article 245(1)
of the Constitution. [Para 3] [658-E; 659-A]
B
1.2. Article 297 of the Indian Constitution deals with
'maritime territory'. 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 C
value and all other resources shall vest in the Union of
India. [Paras 5 and 6] [659-F; 660-A-B]
1.3. Two things follow from the declaration under
Article 297. Firstly, India asserts its authority not only on
D
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
E
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. [Para 7] [661-A-C]
1.4. The sovereignty of a 'coastal State' extends to
F
Its territorial waters, is a well accepted principle of
International Law 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
G
•
on which difference of opinion exists. [Para 8] [661-C~E;
662-A]
1.5. The Territorial Waters, Continental Shelf,
Exclusive Economic Zone and Other Maritime Zones Act,
80 of 1976 whereby limit of territorial waters was fixed at
H
604
SUPREME COURT REPORTS
[2013) 4 S.C.R.
A 12, 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
B contemplated under Section 1 (2). Section 3(1) clleclares
that the sovereignty of India extends, and has always
extended, to the territorial waters of India. [Para 'I OJ [662D-F]
1.6. In view of the scheme of the Maritime 2:one Act,
C as apparent from Section 5(5)(a) and Section 7(7)(a) there
of 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
D a notification in the official gazette of India to 1~xtend 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 1;ontiguous
E zone or exclusive economic zone, as the ca,se may be,
"is part of the territory of India". Creation of s;uch a legal
fiction is certainly within the authority of thfi Sovereign
Legislative Body. [Para 13] [664-E; 665-A-C]
1.7. Though Article 245 speaks of the authority of the
F Parliament to make laws for the territory of l1ndia, 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". The declaration is a fetter
on the jurisdiction of the Municipal Courts including
G Constitutional Courts to either declare a law to be
unconstitutional or decllne to give effect to such a law on
the ground of extra territoriality. [Para 16] [666-B-D]
1.8. Section 2 read with Section 4 of IPC makes the
H provisions of the Code applicable to the offences
-
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 605
AND ORS.
committed "in any pJace without and beyond" the
A
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. Such a
declaration. was made as long back as in 1898. By an
amendment in 2009 to the said Section, the Code is s
extended to any person in any place "without and
beyond the territory of India", committing an offence
targeting a computer resource located in India. Similarly,
Parliament enacted the Suppression of Unlawful Acts
Against Safety of Maritime Navigation And Fixed C
Platforms on Continental Shelf Act, 2002. Thereby the
legislature expressly extended the application of the said
Act beyond the liryiits of the territorial waters of India.
[Paras 20 and 21]_[667-E; 668-A-C, E]
1.9. The Parliament always asserted its authority to
D
make laws, which are applicable to persons, who are not
corporeally present within the territory of India (whether
or not they are citizens) when such persons commit acts
which affect the legitimate interests of this country. In
furtherance of such assertion and in order to facilitate the
E
prosecution of the offenders contemplated under Section
4(1) and (2) of IPC, Section 188 of Cr.P.C. prescribes the
jurisdiction to deal with such offences. Each one of the
above referred enactments also contains a provision
parallel to Section 188. [Paras 25 and 26] [670-B-D]
F
R v. Baster 1971 2 All ER 359 (C.A.) - referred to.
1.10. 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
G
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. It is not open for
H
606
SUPREME COURT REPORTS
(2013] 4 S.C.R.
A any Municipal Court including this Court to decline to
apply the law on the ground that the law is extra-tl~rritorial
in operation when the language of the enactment clearly
extends the application of the law. [Para 29) [672-A-C]
B.K. Wadeyar v. Mis. Daulatram Rameshwarla/ 1~IR 1961
B SC 311: 1961 SCR 924 - relied on.
Aban Loyd Chilies Offshore Ltd. v. Union of India and
Ors. (2008) 11 SCC 439: 2008 (6) SCR 468 - refe1rred to.
2.1. The expression "incident of na~·igation"
C occurring under Article 97 of the UNCLOS, 198:2 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.
[Para 35) [673-E-FJ
D
2.2. 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 mileis from the
E baselines from which the breadth of the territorial sea is
measured". It follows from a combined readin" 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 c1f exclusive
F economic zone is internationally recognised. The
declaration under Section 7(1) of the Marltlm11 Zones Act,
which stipulates the limit of the exclusive economic zone,
is perfectly in tune with the terms of UNCLOl3. Therefore,
Article 97 of UNCLOS has no application to the exclusive
G economic zone, of which the contiguous ze>ne is a part
and that is the area relevant, in the context of the Incident
in question. For that reason, It cannot be .said that the
incident, which resulted in the death of two Indians is an
"incident of navigation" within the meaning of Article 97
H of the United Nations Convention on the Law of tt\e Sea
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 607
AND·ORS.
and therefore, no penal proceedings may be instituted
A
against the two marines except before the Judicial
authorities of the 'Flag State' or the State of which the
marines are nationals. [Paras 2(1) and 36] (658-0-E; 6740-G]
Case Law Reference:
B
In the Judgment of ALTAMAS KABIR, CJI.
2008 (6) SCR 468
referred to
Para 30, 50
(1927) P.C.l.J
referred to
Para 33, 95, c
98
1969 (3) SCR 254.
referred to
Para 40
1997 (3) Suppl. SCR 404
referred to
Para 40
1984 (2) SCR 664
referred to
Para 50
D
1964 SCR 857
referred to
Para 58
(2004) 12 sec 278
referred to
Para 66
(1997) 1 Q.B. 529
referred to
Para 67
E
1958 SCR 328
referred to
Para 76
. In the judgement of J. Chelameswar, J:
1961 SCR 924
relied on
Para 8
F
1971 2 All ER 359 (C.A.)
referred to
Para 27
2008 (6) SCR 468
referred to
Para 30, 33
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
135 of 2012.
G
Under Article 32 of the Constitution of iNdia.
WITH
SLP (C) No. 20370 of 2012.
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A
Gourab K. Banerji, ASG, Harish N. Salve, Suhail Dutt, V.
Giri, Diljeet Titus, Viplav Sharma, Baljit Singh Kalha, Ujjwal
Shanna, Abhixit Singh, Achint Singh Gyani, Ankur Manchanda,
Jagjit Singh Chhabra, Raghav Shankar, Jaswant Per-raye, S.A.
Haseeb, Parul Kumar, Sahil Tagotra, Jhuma Sen, SL1priya Jain,
B D.S. Mahra, 8. Krishna Prasad, Gautam Jha, Arjun Krishnan,
Ramesh Babu, M.R., Mohammed Sadique T.A., Sus.hrut Jindal,
Rekha Pandey, Rashmi Malhotra, Sahil Tagotra, R Malhotra
for the appearing parties.
c
The Judgments of the Court was delivered by
ALTAMAS KABIR, CJI. 1. The past decade has
witnessed a sharp increase in acts of piracy on t'he high seas
off the Coast of Somalia and even in the vicinity of the Minicoy
islands forming part of the Lakshadweep archipelago. In an
D 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 R1apublic of Italy
enacted Government Decree 107 of 2011, converted into Law
of Parliament of Italy No.130 of 2nd August, 2011, to protect
E 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. Pur,suant to the said
law of Parliament of Italy No.130 of 2nd August, 2011, a
Protocol of Agreement was purportedly entered into on 11th
F October, 2011, between the Ministry of Defence - Naval Staff
and Italian Shipowners' Confederation (Confitanna), 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
G 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
H change in the disembarkation plans, whemby the planned port
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 609
AND ORS. [ALTAMAS KABIR, CJI.]
of disembarkation was shifted from Muscat to Djibouti, was A
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.
B
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 C
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 Coordination Centre, Mumbai, asking it to return to Cochin Port D
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.1.R.) No.2 of 2012 had been lodged with
E
the Circle Inspector, Neendakara, Kollam, Kerala, under
Section 302 read with Section 34 of the Indian Penal Code
(l.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
F
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.
3. On 20th February, 2012, the petitioner Nos.2 and 3 were
produced before the Chief Judicial Magistrate (C.J.M.), Kollam, G
by the Circle Inspector of Police, Coastal Police Station,
Neendakara, who prayed for remand of the accused to judicial
custody.
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[2013] 4 S.C.R.
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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, Kallam District, K.erala, to
register the F.l.R. and to conduct investigation on the basis
B
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.l.R. No.2 of 2012 on the file of the Circle Inspector
of Police, Neendakara, Kallam District, as the same was
purportedly without jurisdiction, contrary to law and null and void.
c 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, themfore, void.
A further prayer was made for the release of the: Petitioner
Nos.2 and 3 from the case.
D
5. Between 22nd and 26th February, 20'12, several
relatives of the deceased sought impleadment in the Writ
Petition and were impleaded as Additional R•espondents
Nos.4, 5 and 6.
E
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
F
punishment for the crime of murder under Section 575 of the
Italian Penal Code is imprisonment of at least ~!1 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
G 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
H had acted in an official capacity. In the affidavit, the Consul
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 611
AND ORS. [ALTAMAS KABIR, CJI.]
General reasserted that Italy had exclusive jurisdiction over the
A
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
B
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:-
C I
"(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
D
Constitution of India; and
(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
E
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
F
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 G
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
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SUPREME COURT REPORTS
[2013] 4 S.C.R.
A
Act'. On 29th May, 2012, the learned Single Judge of the Kerala
High Court dismissed Writ Petition (Civil) No.4542 1)f 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
B
Economic Zone and the territorial jurisdiction of t'ne 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
c Zone of India.
D
10. Aggrieved by the aforesaid judgment of th1~ Kerala High
Court, the Petitioners filed Special Leave PEitition (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 thre Kerala High
Court and S.L.P.(C) No.20370 of 2012 are the same as those
E
sought in Writ Petition (Civil) No.135 of 2012.
12. Accordingly, the Special Leave Petitic•n and the Writ
Petition have been heard together.
13. Simply stated, the case of the Petitioriers is, that the
F
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 att:acks of piracy. It
G 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,
H
in cases of international disputes, the State units/governments
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 613
AND ORS. [ALTAMAS KABIR, CJI.]
within a federal structure, could not be regarded as entities A
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
B
the Union at its discretion. Consequently, the arrest and
continued detention of the Petitioner 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, C
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,
D
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 E
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.
F
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 G
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 H
614
SUPREME COURT REPORTS
[2013] 4 S.C.R.
A
of Italy, acting in discharge of their official duties, th13 State of
Kerala had acted in a manner contrary to Public lntiernational
Law, as well as the provisions of the Constitution of India.
16. Learned counsel submitted that the Scheme of the
8
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
C
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''.
D
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
E
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 adjacent to the Territorial Waters and the limit
of the Contiguous Zone is the line every point of which is at a
F
distance of twenty-four nautical miles from the n,earest point of
the baseline referred to in Sub-section (2) of Section 3. Section
7 of the Act defines Exclusive Economic Zone as an area
beyond and adjacent to the Territorial Waters, and the limit of
such zone is two hundred nautical miles from the baseline
G referred to in sub-section (2) of Section 3. In respect of each
of the three above-mentioned zones, the Central Government
has been empowered 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 said zones.
H
18. Mr. Salve pointed out that Section 4 of the Maritime
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 615
AND ORS .. [ALTAMAS KABIR, CJI.]
Zones Act, 1976, specially provides for use of Territorial Waters A
by foreign ships and in terms of Sub-section (1 ), all foreign
ships (other than warships including sub-marines and other
underwater vehicles) are entitled to a right of innocent passage
through the Territorial Waters, so long as such passage was
innocent and not prejudicial to the peace, good order or security B
of India.
19. Apart from the above, Mr. Salve also pointed out that
Section 6 of the aforesaid Act provides that the Continental
Shelf of India comprises the seabed and subsoil of the
submarine areas that extend beyond the limit of its territorial C
waters throughout the natural prolongation of its land territory
to the outer edge of the continental margin or to a distance of
two hundred nautical miles from the baseline referred to in Subsection (2) of Section 3, where the outer edge of the continental
margin does not extend up to that distance.