The closure of the marines’ case sets a bad precedence for trying future crimes by foreigners on Indian soil in the Indian courts
Yesterday, June 15, the Supreme Court of India quashed the proceedings in the long-drawn Italian marines case—has agreed with the Government of India for closure of the controversial Italian Marines case wherein which two fishermen were shot down by two Italian soldiers from a foreign ship off the Kerala coast in 2012.
The Narendra Modi government agreed to the for Rs 10 crore compensation —better termed as blood money in some quarters —offered by the Italian shipping company at an the International Arbitration tribunal —sentence is not complete. This is not as simple and not a question of Rs 10 cr. It has bilateral relationship issues involved.
Ironically, Irony is it was Narendra Modi who till May, 2014 kept raising the marines case, spoke on this case, accusing charging the then Congress government of allowing the marines to leave India and asking Congress President Sonia Gandhi if that amounted to “defending the country’s interest”. He and promised to bring the two killer —two Italian marines before the India’s courts criminal law. Why this abject surrender to Italian Government’s pressure?
While it appears so, it is far from either capitulation by India or the country happily agreeing to monetary compensation. The robust bilateral ties between India and Italy nearly became undone because of the tensions the case caused in Delhi and Rome. The Italian foreign minister had to resign after the marines were initially sent back to India while Italian envoy in Delhi was barred from leaving India after the marines refused to return following a furlough. The case came up when India needed Italy’s help in probing the corruption charges in the AgustaWestland case and assistance in finalizing the EU investment agreement.
As someone covering a Home Ministry beat covering journalist for the past 11 years, I knew this case very well. and I am going to disclose the origin of this case. On February 15, 2012 around 5 pm, we journalists were in Union Home Secretary RK Singh’s room at North Block. The same RK Singh who is now the Union Power Minister. It was a regular debriefing and while we were in a freewheeling chat, we journalists noticed a news break flashing in TV about the killing of two fishermen from a foreign ship off the Kerala coast. We alerted RK Singh and he just picked the phone and connected to P. Prabhakaran, then Director-General of Coast Guard.
Singh ordered the head of Coast Guard to seize the foreign ship and hand it over to Kerala Police. As a journalist, I along with my colleagues were as witnessing one of the rarest speedy actions of the Manmohan Singh regime. In no time, the Italian ship, Enrica Lexie, was seized by the Coast Guard and two Italian Marines were arrested by Kerala Police. They were Italian Navy soldiers - Massimiliano Latorre and Salvatore Girone- hired by the ship for security from sea pirates. The Italian soldiers were charge-sheeted for murder by the Kerala Police, and they landed in the trial court in Kollam district of Kerala in their uniform.
According to my information, the tussle between the ship and the boat, named Saint Antony, from Kerala started on the price of the fish. Normally Ships usually buy purchase sea food and groceries from local fish from the boats to stock groceries and meat. The fishermen in the boat and the sailors in the Italian ship argued, engaged in an argument leading to firing from the marines. All kind of Much lobbying took place was going to settle this case, while the two accused killer marines were languisheding in Kerala’s local jail.
First, the Italian Embassy operated through the local Church. The two victims fishermen– Ajeesh Pink and Valentine Jelastine– were also Christians. Within two months their families of the two fishermen accepted Rs 1 crore each and wrote to the police and court that they have pardoned the two Italian marines. The Italian Embassy, while providing legal help to the accused, also produced a letter from the families that “in the name of Jesus” they have pardoned the accused.
The Kerala Police objected saying that in criminal law, families have no role and their pardon cannot matter before laws of India. The Kerala High Court reminded that blood money system and obtaining pardon from the victims’ families will never be entertained. Then lobbying started in Delhi and claims started floating that the incident happened in international waters and not in territorial waters. The Italians approached the Supreme Court, and Harish Salve was the lawyer complaining about the highhandedness of Kerala’s prosecutors. At in the end of 2012, then Chief Justice of India (CJI) Altamas Kabir ordered the shifting of the case from Kerala and allowed the Italian marines to kept in Delhi’s Embassy. Soon CJI Kabir allowed them parole to visit Italy for Christmas celebrations. Shockingly, before the next hearing on April, 2013, the Embassy filed an affidavit that the two accused were are not coming back to India. Then Janata Party President Subramanian Swamy intervened in the case seeking contempt of court proceedings against Italian Ambassador and there was a heated argument between CJI and Swamy. Sensing danger, Italy returned the marines and kept them in their Delhi Embassy. Meanwhile, Harish Salve relinquished the case and his friend Mukul Rohatgi took up the case of Italian Embassy.
This time country was a facing Lok Sabha election heat and BJP and its Prime Ministerial candidate Narendra Modi were accusing Congress and its President Sonia Gandhi for of reportedly surrendering India’s interests before Italy. Modi was roaring in his speeches asking Sonia Gandhi all kinds of questions on this matter. Modi even Tweeted on March 31, 2014: “Italian marines mercilessly killed our fishermen. If Madam is so ‘patriotic’ can she tell in which jail the marines are lodged in?”Modi was outraged that expressing anger over putting the killer marines were lodged in Embassy guest house in Delhi instead of jail.
Modi became Prime Minister in May, 2014. As time passed, the advocates of the Italian marines’ advocate Mukul Mukul Rohatgi became India’s Attorney General and the marines’ first advocate Harish Salve got Padma Bhushan a year later in 2015. The anger was gradually fizzling out and the marines were allowed to go back to Italy and in 2016, India agreed to contest the Italian petition at the ad-hoc tribunal constituted to settle disputes related to the United Nations Convention for the Law of the Sea at the UN Tribunal on international shipping matters even as the Supreme Court was handling the criminal case. Why did India agree for the international tribunal’s and arbitrations when a criminal case was pending in Indian courts? The same thing happened in Vodafone and Cairn tax evasion issues when cases were going on in Indian courts. And in international tribunals, India lost the case ultimately after spending huge legal expenses running over millions of dollars.
In July 2020, as expected, the international tribunal ordered that India can only contest for compensation and criminal cases will be tried only in Italy. The Union government informed the Supreme Court that it had accepted the decision of the Permanent Court of Arbitration that the marines cannot be tried in India as they enjoyed immunity because they were exercising official duties when the incident occurred. The PCA said India was entitled to compensation for the loss of life of the fishermen and the marines’ violation of the right of navigation.
And the Indian Government agreed to this curious order of the tribunal and now tells the Supreme Court to close all criminal cases as the “nation” has agreed to the International Tribunal proposal. Italy paid compensation of Rs 4 crore each to two fishermen’s families and Rs 2 crore to the boat owner. Why did the Government of India agree to accept Rs 10 crore and avoid criminal cases in India, akin to the blood money system? In India trial courts have to pass judgment including conviction of the accused and pass orders for compensation to victims. Accepting Blood Money and obtaining pardon for the accused from victim’s family is valid in Arabic jurisprudence.
The Kerala High Court was right on the conduct of the trial but was over-ruled by the Supreme Court. The then Opposition party, BJP, did a u-turn after coming to power. A bad precedence has been set for the trial of any misdemeanor or crime committed by foreigners on Indian territory. How can we justify a foreigner killing an Indian in Indian terrain and allow his criminal trial to be conducted on foreign soil?
The author is a Special Correspondent of ‘The Pioneer’. The views expressed are personal.
