No immunity to Italian mariners, Centre tells SC

The Centre told the Supreme Court on Tuesday that the Italian mariners, who shot dead two fishermen off Kerala coast on February 15 this year, do not enjoy any sovereign immunity and are liable for criminal prosecution.

In an affidavit, the Ministry of External Affairs told a bench headed by Justice Altamas Kabir that the Kerala government had acted within the law in initiating criminal action against the Italian mariners.

Maintaining that the Italian government had not come with clean hands to the court, the Centre said the former also had no Constitutional right to move the apex court as it was not entitled to any fundamental right which is guaranteed to every citizen of the country.

"Article 32 of the Constitution guarantees the right to move the Supreme Court for enforcement of rights conferred by Part III of the Constitution.

"The rights under Part III are conferred on citizens or on persons. In case there is any violation of a fundamental right of a person, it is the person who has the right to prefer a writ petition under Article 32. Article 32 cannot be construed to permit a sovereign state to file a writ petition for enforcing the fundamental rights of its nationals," the affidavit said.

The Centre said the Italian government had also concealed from the apex court the fact that it had filed an admiralty suit in Kerala and had also entered into a compromise with the families of the deceased fishermen.

"It is settled law that Writ Jurisdiction under Article 32 and 226 of the Constitution cannot be invoked by a person who does not approach the court with clean hands.

"In the present case, the petitioners have filed the present writ petition claiming sovereign immunity, without disclosing that the petitioners have already submitted to the jurisdiction of Indian courts by seeking impleadment in the Admiralty Suits filed against Petitioner No. 2 and 3 by the relatives of the deceased

"Further, the Republic of Italy has attempted settlement of these suits by entering into agreements with the relatives of the deceased, which are both unconscionable and unlawful," the affidavit stated," the centre said.

According to the Centre, the action of the State of Kerala and its authorities in the present case is fully authorised under Indian Law including the Constitution.

"The application of the Indian Penal Code extends to the exclusive economic zone of India, i.e. to an area of 200 nautical miles from the baseline, by virtue of the provisions contained in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, and a notification issued under Section 7(7) thereof.

"In the present case, it is an admitted position that the bullets fired by Petitioner No. 2 and 3 hit the Indian fishermen while they were on board a vessel registered in India. Therefore, a part of the offence took place on a ship registered in India. This is sufficient to invoke Section 4(2) of the Indian Penal Code, and accordingly, the exercise of jurisdiction in the present case is legally justified under Indian law," the government said.

The two Italian mariners, who had shot dead two Kerala fishermen Valentine and Ajesh Binki, in February this year aboard the ship Enrica Lexie suspecting them to be pirates, were arrested and have been charged with murder. They are lodged in Thiruvananthapuram Central Jail.

Their arrests culminated in a diplomatic dispute between India and Italy, which wants the mariners to be sent home and tried there.

Italy claims that the shooting took place in international waters after the marines mistook the fishermen for Somalian pirates.