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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL)NO.135 OF 2012

Republic of Italy & Ors.    … Petitioners  

Vs. Union of India & Ors.    … Respondents

WITH

SPECIAL LEAVE PETITION (CIVIL) NO.20370 OF 2012

Massimilano Latorre & Ors.    … Petitioners  

Vs. Union of India & Ors.    … Respondents

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J U D G M E N T 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

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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

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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,

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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

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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

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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

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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

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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,

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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

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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 Nos.2 and 3 by the State of Kerala

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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

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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

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manner  contrary  to  Public  International  Law,  as  

well  as  the  provisions  of  the  Constitution  of  

India.  

16. Learned counsel submitted that the Scheme of  

the  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 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”.  

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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 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  distance  of  

twenty-four nautical miles from the nearest 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

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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.   

18. Mr. Salve pointed out that Section 4 of the  

Maritime Zones Act, 1976, specially provides for  

use of Territorial Waters 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 of  

India.  

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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 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 Sub-section  

(2)  of  Section  3,  where  the  outer  edge  of  the  

continental  margin  does  not  extend  up  to  that  

distance.  Sub-section (2) provides that India has  

and always had full and exclusive sovereign rights  

in respect of its Continental Shelf.   

20. According  to  Mr.  Salve,  the  incident  having  

occurred at a place which was 20.5 nautical miles  

from  the  coast  of  India,  it  was  outside  the

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territorial  waters  though  within  the  Contiguous  

Zone and the Exclusive Economic Zone, as indicated  

hereinabove. Accordingly, by no means could it be  

said  that  the  incident  occurred  within  the  

jurisdiction of one of the federal units of the  

Union of India.  Mr. Salve urged that the incident,  

therefore, occurred in a zone in which the Central  

Government  is  entitled  under  the  Maritime  Zones  

Act, 1976, as well as UNCLOS, to exercise sovereign  

rights, not amounting to sovereignty.  Mr. Salve  

submitted  that  the  Act  nowhere  contemplates  

conferral  of  jurisdiction  on  any  coastal  unit  

forming part of any Maritime Zone adjacent to its  

coast.  Accordingly, the arrest and detention of  

the  Petitioner  Nos.2  and  3  by  the  police  

authorities in the State of Kerala was unlawful and  

was liable to be quashed.  Mr. Salve also went on  

to urge that notwithstanding the provisions of the  

Maritime Zones Act, 1976, India, as a signatory of

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the  UNCLOS,  is  also  bound  by  the  provisions  

thereof. Submitting that since the provisions of  

the 1976 Act and also UNCLOS  recognise the primacy  

of  Flag  State  jurisdiction,  the  Petitioner  No.1  

i.e.  the  Republic  of  Italy,  has  the  preemptive  

right to try the Petitioner Nos.2 and 3 under its  

local laws.   

21. Mr. Salve submitted that provisions, similar to  

those in the Maritime Zones Act, 1976, relating to  

the  extent  of  territorial  waters  and  internal  

waters  and  the  right  of  "innocent  passage",  are  

provided  in  Articles  8,  17  and  18  of  the  

Convention.  Mr. Salve submitted that Article 17  

sets  down  in  clear  terms  that  subject  to  the  

Convention, ships of all States, whether coastal or  

land-locked, enjoy the right of innocent passage  

through the territorial sea.  "Innocent passage"

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has been defined in Article 18 to mean navigation  

through the territorial sea for the purpose of :

(a) traversing that sea without entering internal  waters  or  calling  at  a  roadstead  or  part   facility outside internal waters; or

(b) proceeding to or from internal waters or a call  at such roadstead or part facility.       

22. The  said  definition  has  been  qualified  to  

indicate that such passage would be continuous and  

expeditious,  but  would  include  stopping  and  

anchoring,  only  in  so  far  as  the  same  are  

incidental to ordinary navigation or are rendered  

necessary for force majeure or distress or for the  

purpose of rendering assistance to persons, ships  

or  aircraft  in  danger  or  distress.  Mr.  Salve  

pointed  out  that  Article  19  describes  innocent  

passage to be such so long as it is not prejudicial

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to the peace, good order or security of the coastal  

State  and  takes  place  in  conformity  with  the  

Convention and other rules of International law.   

  Learned counsel pointed out that Article 24 of  

the  Convention  contained  an  assurance  that  the  

coastal  States  would  not  hamper  the  innocent  

passage of foreign ships through the territorial  

sea, except in accordance with the Convention.

23.  As to criminal jurisdiction on board a foreign  

ship, Mr. Salve referred to Article 27 of UNCLOS,  

which provides that the criminal jurisdiction of  

the coastal State should not be exercised on board  

a foreign ship passing through the territorial sea  

to  arrest  any  person  or  to  conduct  any  

investigation  in  connection  with  any  crime  

committed  on  board  the  ship  during  its  passage,  

save only in cases where the consequences of the

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crime extend to the coastal State; if the crime is  

of a kind to disturb the peace of the country or  

the  good  order  of  the  territorial  sea;  if  the  

assistance  of  the  local  authorities  has  been  

requested  by  the  Master  of  the  ship  or  by  a  

diplomatic agent or consular officer of the flag  

State, or if such measures are necessary for the  

suppression of illicit traffic in narcotic drugs or  

psychotropic substances.  Mr. Salve, however, urged  

that  none  of  the  aforesaid  conditions  were  

attracted  in  the  facts  of  this  case  so  as  to  

attract the criminal jurisdiction of a State within  

the federal structure of the Union of India.   

24. Another Article of some significance is Article  

33 of the Convention under Section 4, which deals  

with Contiguous Zones.  Mr. Salve submitted that  

Article 33 provides that in a zone contiguous to

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its territorial sea, a coastal State may exercise  

the control necessary to :

(i) prevent infringement of its customs, fiscal,   

immigration or sanitary laws and regulations   

within its territory or territorial sea;

(ii)punish  infringement  of  the  above  laws  and   

regulations committed within its territory or  

territorial sea.   

However,  the  Contiguous  Zone  may  not  extend  

beyond  24  nautical  miles  from  the  baseline  from  

which  the  breadth  of  the  territorial  sea  is  

measured.  Accordingly, since the incident occurred  

outside the territorial waters, the State of Kerala  

exceeded its jurisdiction and authority in acting  

on  the  basis  of  the  FIR  lodged  against  the  

Petitioner Nos.2 and 3 at Neendakara, Kollam, and  

in keeping them in continued detention.

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25. Referring to Part V of the Convention, which  

deals  with  Exclusive  Economic  Zones,  Mr.  Salve  

pointed out that Article 56 under the said Part  

indicates the rights, jurisdiction and duties of  

the coastal State in the Exclusive Economic Zone so  

as to include the State's sovereign rights for the  

purpose of exploring and exploiting, conserving and  

managing the natural resources, whether living or  

non-living, of the waters superjacent to the seabed  

and of the seabed and its subsoil, and with regard  

to other activities for the economic exploitation  

and exploration of the zone, such as the production  

of energy from the water, currents and winds.  The  

said  Article  also  indicates  that  the  State  has  

jurisdiction in regard to :

(i) the  establishment  and  use  of  artificial   

islands, installations and structures;

Page 27

(ii)marine scientific research;

(iii)the protection and preservation of the marine  

environment;

and other rights and duties provided for in the  

Convention.  In regard to artificial islands, Mr.  

Salve pointed out that under Clause 8 of Article  

59,  artificial  islands,  installations  and  

structures do not possess the status of islands.  

They have no territorial sea of their own and their  

presence does not affect the delimitation of the  

territorial sea, the Exclusive Economic Zone or the  

Continental Shelf.   

26.  Dealing  with  the  concept  of  High  Seas,  

contained in Part VII of the Convention, Mr. Salve  

submitted that Articles 88 and 89 of the Convention  

provide that the High Seas have to be reserved for  

peaceful  purposes  and  that  no  State  may  validly

Page 28

purport to subject any part of the same to its  

sovereignty.  Mr.  Salve  submitted  that  under  

Articles 91, 92 and 94 of the Convention, every  

State was entitled to fix the conditions for the  

grant  of  its  nationality  to  ships,  for  the  

registration of ships in its territory, and for the  

right to fly its flag. Article 91 provides that  

ships have the nationality of the State whose flag  

they are entitled to fly and there must exist a  

genuine link between the State and the ship. Mr.  

Salve  pointed  out  that  Article  94  casts  several  

duties  on  the  flag  State  and  one  of  the  most  

significant clauses of Article 94 is clause 7 which  

provides that each State shall cause an inquiry to  

be held by or before a suitably qualified person or  

persons into every marine casualty or  incident of  navigation  (emphasis  supplied) on  the  High  Seas  involving a ship flying its flag and causing loss  

of life or serious injury to nationals of another

Page 29

State or serious damage to ships or installations  

of  another  State  or  to  the  marine  environment.  

The flag State and the other State shall cooperate  

in the conduct of any inquiry held by the concerned  

State into any such marine casualty or incident of  

navigation. The same provisions are also reflected  

in Article 97 of the Convention, in which it has  

been indicated that in the event of a collision or  

any other incident of navigation concerning a ship  on  the  High  Seas,  involving  the  penal  or  

disciplinary responsibility of the Master or of any  

other person in the service of the ship, no penal  

or  disciplinary  proceedings  may  be  instituted  

against such person except before the judicial or  

administrative authorities either of the flag State  

or of the State of which such person is a national.

27.  Lastly, Mr. Salve referred to Article 100,  

which may be of relevance to the facts of this

Page 30

case, as it requires all States to cooperate to the  

fullest extent in the repression of piracy on the  

High  Seas  or  in  any  other  place  outside  the  

jurisdiction of any State.

28. Mr. Salve submitted that the publication of a  

Notification  by  the  Ministry  of  Home  Affairs  on  

27th August, 1981, under Sub-section (7) of Section  

7 of the Maritime Zones Act, 1976, extending the  

application of Section 188 of the Code of Criminal  

Procedure, 1973, to the Exclusive Economic Zone,  

created  various  difficulties,  since  the  said  

Notification was a departure from the provisions of  

Part  V  of  UNCLOS  which  provides  that  a  coastal  

State  enjoys  only  sovereign  rights  and  not  

sovereignty over the Exclusive Economic Zone.   

29. Referring to the interim report of the Ministry  

of Shipping, Government of India, in respect of the

Page 31

incident, Mr. Salve pointed out that the fishing  

boat, MFB St. Antony, about 12 meters long, was  

owned by one Mr. Freidy, who was also working as  

the  Sarang  of  the  boat,  which  is  registered  at  

Colachel, Kanyakumari District, Tamil Nadu, by the  

Assistant Director of Fisheries.  The crew of the  

boat were issued Identity Cards by the Trivandrum  

Matsyathozhilali Forum, but the fishing boat is not  

registered under the Indian Merchant Shipping Act,  

1958, and was not flying the Indian Flag at the  

time of the incident.  Furthermore, at the time of  

the incident, the ship was at a minimum distance of  

about 20 nautical miles from the Indian coast.  The  

ship was coasting in Indian territorial waters in  

order to avoid any encounter with pirate boats as  

the area was declared to be a High Risk Area of  

Piracy.  Mr. Salve urged that in the report it was  

also indicated that the area comes under the high  

alert zone for piracy attacks, as declared by the

Page 32

UKMTO,  and  the  Watch  Officers  were  maintaining  

their normal pirate watch. Apart from the normal  

navigational Watch Keepers, the ship also had NMP  

Marines  on  the  bridge  on  anti-pirate  watch  as  

stated by the Second Mate and Master.  The NMP  

Marines were keeping their own watch as per their  

schedule and it was not the responsibility of the  

Master to keep track of their  regimen.  The NMP  

Marines were supposed to take independent decisions  

as  per  Article  5  of  the  agreement  between  the  

Italian  Defence  Ministry  and  the  Italian  ship  

Owners Association.  The report also indicated that  

the  fishing  boat  came  within  a  distance  of  100  

meters  of the Italian Ship, causing the crew of  

the ship to believe that they were under pirate  

attack and in the circumstances of the moment the  

marines, who are independent of the orders of the  

Master,  opened  fire,  killing  the  two  Indian  

fishermen.  

Page 33

   Subsequently, while the Ship was moving away,  

it received a phone call from the MRCC, Mumbai Duty  

Controller, instructing the ship to proceed towards  

Kochi  Anchorage  to  give  a  statement  and  witness  

with regard to the incident.  Mr. Salve submitted  

that   pursuant thereto the Italian vessel, instead  

of proceeding further into the high seas, returned  

to  Cochin Port and was, thereafter, detained by  

the Kerala police authorities.

   Mr. Salve submitted that it was necessary to  

construe the provisions of the Maritime Zones Act,  

1976, in the light of the UNCLOS, which gives rise  

to the question as to which of the provisions would  

have primacy in case of conflict.   

30. Referring to the decision of this Court in Aban  

Loyd Chiles Offshore Limited vs. Union of India &

Page 34

Anr. [(2008) 11 SCC 439], Mr. Salve submitted that  

in the said decision, this Court had held that from  

a reading of Sections 6 and 7 of the Maritime Zones  

Act, 1976, it is clear that India has been given  

only certain limited sovereign rights in respect of  

its Continental Shelf and Exclusive Economic Zone,  

which  cannot  be  equated  to  extending  the  

sovereignty of India over its Continental Shelf and  

Exclusive  Economic  Zone,  as  in  the  case  of  

Territorial  Waters.   However,  Sections  6(6)  and  

7(7) of the Maritime Zones Act, 1976, empower the  

Central Government, by notification, to extend the  

enactment in force in India, with such restrictions  

and  modifications  which  it  thinks  fit,  to  its  

Continental Shelf and Exclusive Economic Zone and  

also provides that an enactment so extended shall  

have  effect  as  if  the  Continental  Shelf  or  the  

Exclusive Economic Zone, to which the Act has been  

extended,  is  a  part  of  the  territory  of  India.

Page 35

Sections 6(6) and 7(7) create a fiction by which  

the Continental Shelf and the Exclusive Economic  

Zone  are  deemed  to  be  a  part  of  India  for  the  

purposes of such enactments which are extended to  

those areas by the Central Government by issuing a  

notification.   

31. Mr. Salve submitted that it was also held that  

the  coastal  State  has  no  sovereignty  in  the  

territorial  sense  of  dominion  over  Contiguous  

Zones, but it exercises sovereign rights for the  

purpose  of  exploring  the  Continental  Shelf  and  

exploiting  its  natural  resources.  It  has  

jurisdiction  to  enforce  its  fiscal,  revenue  and  

penal  laws  by  intercepting  vessels  engaged  in  

suspected  smuggling  or  other  illegal  activities  

attributable to a violation of the existing laws.  

The waters which extend beyond the Contiguous Zone  

are traditionally the domain of high seas or open

Page 36

sea which juristically speaking, enjoy the status  

of  International  waters  where  all  States  enjoy  

traditional high seas freedoms, including freedom  

of  navigation.  The  coastal  States  can  exercise  

their right of search, seizure or confiscation of  

vessels for violation of its customs or fiscal or  

penal laws in the Contiguous Zone, but it cannot  

exercise these rights once the vessel in question  

enters the high seas, since it has no right of hot  

pursuit,  except  where  the  vessel  is  engaged  in  

piratical acts, which make it liable for arrest and  

condemnation  within  the  seas.  Accordingly,  

although,  the  coastal  States  do  not  exercise  

sovereignty  over  the  Contiguous  Zone,  they  are  

entitled  to  exercise  sovereign  rights  and  take  

appropriate steps to protect its revenues and like  

matters.

Page 37

32. Relying on the aforesaid observations made by  

this  Court  in  the  aforesaid  case,  Mr.  Salve  

submitted that the provisions of the Maritime Zones  

Act, 1976, would have to be read in harmony with  

the provisions of UNCLOS.  Mr. Salve submitted that  

the reference made in paragraphs 77 and 99 of the  

judgment  dealt  with  policing  powers  in  the  

designated  areas  of  the  Contiguous  Zone  for  the  

application  of  the  Customs  Act  and  not  as  a  

reference to general policing powers exercised by  

the State police within the Union of India.  Mr.  

Salve submitted that it would thus be clear, that  

if an offence was committed beyond the Contiguous  

Zone, the State concerned could not proceed beyond  

24 nautical miles from the baseline in pursuit of  

the vessel alleged to have committed the offence.  

Mr. Salve submitted that it was not contemplated  

under  the  Maritime  Zones  Act,  1976,  that  the  

policing powers of a coastal State would proceed

Page 38

beyond the Contiguous Zone and into the Exclusive  

Economic  Zone  or  High  Seas,  though  certain  

provisions  of  the  Customs  Act  and  the  Customs  

Tariff Act had been extended to areas declared as  

“designated areas” under the said Act.

33. Mr. Salve contended that the stand of the Union  

of India has been that the provisions of UNCLOS  

cannot be applied in the facts of the case, since  

the Maritime Zones Act, 1976, which is a domestic  

Act, is a departure from UNCLOS, and Article 27 of  

UNCLOS was not a part of the Indian domestic law.  

Further,  in  anticipation  of  the  submissions  on  

behalf of the Respondents, Mr. Salve urged that the  

judgment of the Permanent Court of International  

Justice in the Case of  S.S. Lotus (Fr. v. Turk.)  

[(1927) P.C.I.J.]  which involved claims between  

France and Turkey continued to be good law, save  

and except to the extent it had been overridden,

Page 39

but only in relation to collisions under Article 97  

of the UNCLOS.

34. Mr.  Salve  submitted  that  the  aforesaid  

contentions made on behalf of the Union of India  

were  misconceived,  because  they  were  not  taken  

earlier and were not to be found in the affidavit  

affirmed  by  the  Union  of  India.   Mr.  Salve  

submitted that the Maritime Zones Act, 1976, far  

from being a departure, is in complete conformity  

with the principles of UNCLOS.  The Act is limited  

to spelling out the geographical boundaries of the  

various zones, namely, the Territorial Waters, the  

Contiguous Zone, the Exclusive Economic Zone, and  

the  Continental  Shelf,  etc.  and  the  nature  of  

rights available to India in respect of each of the  

zones is spelled out in the Act in a manner which  

is in complete conformity with the UNCLOS.  Mr.  

Salve urged that India was not only a signatory to

Page 40

but had also ratified the Convention.  The learned  

counsel  submitted  that  the  Maritime  Zones  Act,  

1976, was based, to a large extent, on the draft of  

UNCLOS which had been prepared before 1976, but it  

is settled law in India that once a Convention of  

this kind is ratified, the municipal law on similar  

issues  should  be  construed  in  harmony  with  the  

Convention, unless there were express provisions to  

the contrary.

35. Simply  stated,  Mr.  Salve's  submissions  boil  

down to the question as to whether the sovereignty  

of  India  would  extend  to  the  Exclusive  Economic  

Zone, which extends to 200 nautical miles from the  

baseline of the coast of the State of Kerala.   

36. Mr. Salve then urged that if Sub-section (2) of  

Section 4 I.P.C. was to be invoked by the Union of  

India  for  exercising  jurisdiction  over  a  person

Page 41

present on a vessel flying the Indian flag, it must  

respect  a  similar  right  asserted  by  other  

jurisdictions  indicating  that  Article  21  of  the  

Convention recognises the right of innocent passage  

which is to be respected by all nations, who are  

signatories to UNCLOS.  As a result, if a vessel is  

in innocent passage and an incident occurs between  

two foreign citizens which has no consequences upon  

the  coastal  State,  it  is  obvious  that  no  

jurisdiction could be asserted over such an act on  

the  ground  that  it  amounts  to  violation  of  the  

Indian Penal Code or that the Indian Courts would  

have jurisdiction to try such criminal offences.  

Mr. Salve submitted that the acceptance of such an  

assertion  would  negate  the  rights  of  innocent  

passage.

37. Mr. Salve submitted that once it is accepted  

that it must be Parliament's intention to recognise

Page 42

the Exclusive Economic Zone and to create a legal  

regime  for  exercise  of  the  sovereign  rights  in  

respect of the said zone, then, it must necessarily  

follow that a Parliamentary intent has to be read  

in conjunction with Article 55 of the UNCLOS.  It  

must then follow that the sovereign rights in the  

said  zone  must  be  read  subject  to  the  specific  

legal regime established in Part V of UNCLOS.

38. As far as the Lotus decision is concerned, Mr.  

Salve  contended  that  such  decision  had  been  

rendered in the facts involving the collision of a  

French  vessel  with  a  Turkish  vessel,  which  

ultimately led to the 1952 Geneva Convention for  

the unification of certain rules relating to penal  

jurisdiction  in  matters  of  collisions,  which  

overruled  the  application  of  the  principles  of  

concurrent  jurisdiction  over  marine  collisions.  

Mr. Salve urged that a reading of Articles 91, 92,

Page 43

94 and 97 of UNCLOS clearly establishes that any  

principle of concurrent jurisdiction that may have  

been  recognised  as  a  principle  of  Public  

International Law stands displaced by the express  

provisions of UNCLOS.  Learned counsel pointed out  

that it was not in dispute that the St. Antony, the  

Indian  vessel  involved  in  the  incident,  was  

registered under the Tamil Nadu Fishing laws and  

not under the  Indian Merchant Shipping Act, 1958,  

which  would  allow  it  to  travel  beyond  the  

territorial waters of the respective State of the  

Indian Union, where the vessel was registered.

39. Mr. Salve lastly contended that the stand of  

the Union of India that since no specific law had  

been enacted in India in terms of UNCLOS, the said  

Convention  was  not  binding  on  India,  was  wholly  

misconceived.   Mr.  Salve  urged  that  in  earlier  

matters,  this  Court  had  ruled  that  although

Page 44

Conventions, such as these, have not been adopted  

by  legislation,  the  principles  incorporated  

therein, are themselves derived from the common law  

of  nations  as  embodying  the  felt  necessities  of  

international trade and are, therefore, a part of  

the  common  law  of  India  and  applicable  for  the  

enforcement  of  maritime  claims  against  foreign  

ships.

40. Mr. Salve also relied on the Constitution Bench  

decision  of  this  Court  in  Maganbhai  Ishwarbhai  

Patel vs. Union of India and another [(1970) 3 SCC  

400], in which this Court had inter alia held that  

unless there be a law in conflict with the Treaty,  

the Treaty must stand.  Also citing the decision of  

this  Court  in  Vishaka  and  Others vs.  State  of  

Rajasthan and Others [(1997) 6 SCC 241], this Court  

held that international conventions and norms are  

to  be  read  into  constitutional  rights  which  are

Page 45

absent in domestic law, so long as there is no  

inconsistency with such domestic law.

41. Mr. Salve urged that Section 3 of the Maritime  

Zones  Act,  1976,  recognises  the  notion  of  

sovereignty, but, limits it to 12 nautical miles  

from the nearest point of the appropriate baseline.  

42. The  essence  of  Mr.  Salve's  submissions  is  

focussed  on  the  question  as  to  whether  the  

sovereignty  of  India  and  consequently  the  penal  

jurisdiction  of  Indian  Courts,  extends  to  the  

Exclusive Economic Zone or whether India has only  

sovereign rights over the Continental Shelf and the  

area covered by the Exclusive Economic Zone.  A  

reading of Sections 6 and 7 of the Maritime Zones  

Act, 1976, makes it clear that India’s sovereignty  

extends  over  its  territorial  waters,  but  the  

position  is  different  in  the  case  of  the

Page 46

Continental Shelf and Exclusive Economic Zone of  

the  country.   The  Continental  Shelf  of  India  

comprises the seabed beyond the territorial waters  

to a distance of 200 nautical miles.  The Exclusive  

Economic Zone represents the sea or waters over the  

Continental  Shelf.  Mr.  Salve  submitted  that  the  

language of the various enactments and the manner  

in which the same have been interpreted, has given  

rise to the larger question of sovereign immunity.  

    Mr. Salve submitted that while Italy signed  

the  UNCLOS  in  1973  and  ratified  it  in  January,  

1995,  India  signed  the  Convention  in  1982  and  

ratified the same on 29th June, 1995. Referring to  

Sections 2 and 4 of the Indian Penal Code read with  

Section 179 of the Code of Criminal Procedure, Mr.  

Salve urged that the same would stand excluded in  

their  operation  to  the  domestic  Courts  on  the  

ground of sovereign immunity.

Page 47

43.  Mr.  Salve  lastly  urged  that  in  order  to  

understand the presence of the Italian marines on  

board the M.V. Enrica Lexie, it would be necessary  

to  refer  to  the  Protocol  Agreement  entered  into  

between the Ministry of Defence – Naval Staff and  

Italian Shipowners' Confederation (Confitarma) on  

11th October, 2011.  Mr. Salve pointed out that the  

said Agreement was entered into pursuant to various  

legislative  and  presidential  decrees  which  were  

issued  on  the  premise  that  piracy  and  armed  

plundering  were  serious  threats  to  safety  in  

navigation for crew and carried merchandise, with  

significant  after-effects  on  freights  and  marine  

insurance, the commercial costs of which may affect  

the  national  community.   Accordingly,  it  was  

decided to sign the Protocol Agreement, in order  

that the parties may look for and find all or any  

measure suitable to facilitate that the embarkation

Page 48

and disembarkation of Military Protection Squads,  

hereinafter referred to as "NMPs", on to and from  

ships in the traffic areas within the area defined  

by the Ministry of Defence by Ministerial Decree of  

1st September, 2011.  Mr. Salve pointed out that  

the  said  Agreement  provides  for  the  presence  of  

Italian marines, belonging to the Italian Navy, to  

provide  protection  to  private  commercial  ships  

against the surge of piracy. Mr. Salve submitted  

that, in fact, the navy was of the view that the  

activity  covered  by  the  Agreement/Protocol  could  

also be offered to national shipowners other than  

Confitarma and other class associations, following  

acceptance of the Convention.   

44. Mr. Salve pointed out that Article 3 of the  

Convention  provided  for  the  supply  of  the  

protection service, in which on an application for  

embarkation of the military protection squads, the

Page 49

Ministry of Defence would consider several aspects,  

including the stipulation that the ship's Master  

would  remain  responsible  only  for  choices  

concerning  safety  of  navigation  and  manoeuvre,  

including  escape  manoeuvres,  but  would  not  be  

responsible for the choices relating to operations  

involved in countering a piracy attack.  Mr. Salve  

submitted that, in other words, in case of piracy  

attacks,  the  Master  of  the  ship  would  have  no  

control over the actions of the NMPs provided by  

the Italian Government.  Mr. Salve submitted that  

the  deployment  order  of  the  team  of  marines,  

including  the  Writ  Petitioner  Nos.2  and  3,  is  

contained in OP 06145Z FEB 12 ZDS from the Italian  

Navy General Staff to the Italian Defence Attache  

in  New  Delhi,  India,  and  several  other  Italian  

Defence Attaches in different countries, which has  

been  made  Annexure  P-3  to  the  Special  Leave  

Petition.  In this regard, Mr. Salve referred to a

Page 50

Note  Verbale  No.95/553  issued  by  the  Embassy  of  

Italy  in  New  Delhi  to  the  Ministry  of  External  

Affairs, Government of India, referring to the case  

involving the vessel in question. Since the same  

encapsulates in a short compass the case of the  

Petitioners, the same in its entirety is extracted  

hereinbelow :

“EMBASSY OF ITALY NEW DELHI

NOTE VERBALE 95/553

The  Embassy  of  Italy  presents  its  compliments  to  the  Ministry  of  External  Affairs, Government of India and has the  honour to refer to the case of the ship  Enrica  Lexie  as  per  Note  Verbale  n.71  dated February 18th 2012.

The  Embassy  of  Italy  would  like  to  recall  that  according  to  principles  of  customary international law, recognized by  several decisions of International Courts.  State organs enjoy jurisdictional immunity  for  acts  committed  in  the  exercise  of  their  official  functions.   The  Italian  Navy Military Department that operated in

Page 51

international waters on board of the ship  Enrica  Lexie  must  be  considered  as  an  organ of the Italian State.   

Their conduct has been carried out in  the fulfillment of their official duties  in  accordance  with  national  regulations  (Italian  Act  nr.107/2011),  directives,  instructions  and  orders,  as  well  as  the  pertinent rules on piracy contained in the  1982 UN Convention on the Law of the Sea  and  in  the  relevant  UN  Security  Council  Resolutions on the Piracy off the Horn of  Africa.

The  Embassy  of  Italy  welcomes  the  steps  taken  by  the  Chief  Judicial  Magistrate in Kollam in order to protect  the  life  and  honour  of  the  Italian  Military Navy Personnel currently held in  judicial custody on remand.  The Embassy  of  Italy  also  welcomes  the  cooperative  approach on the issue of the examination  of the weapons taken by the Magistrate.

The  Embassy  of  Italy  nevertheless  reasserts  the  Italian  exclusive  jurisdiction  in  respect  of  the  said  military personnel.  It wishes to inform  that  investigations  by  both  the  Italian  ordinary and military judicial authorities  have already been initiated.  Therefore,  it urges for the release of the Italian  Navy Military Personnel and the unimpeded  departure from the Indian Territory.  They  have entered Indian territorial waters and  harbor  simply  as  a  Military  Force

Page 52

Detachment  officially  embarked  on  the  Italian  vessel  Enrica  Lexie  in  order  to  cooperate with Indian authorities in the  investigation  of  an  alleged  piracy  episode.  The entry in Indian territorial  waters  was  upon  initial  invitation  and  then  under  direction  of  Indian  Authorities.

The  Embassy  of  Italy,  while  reiterating the sovereign right of a State  to  employ  its  military  personnel  in  ongoing antipiracy military protection of  national  flagged  merchant  ship  in  international waters, underlines that the  same right is not impaired by the ongoing  national  investigations  involving  Italian  Navy Military Personnel.

The  Italian  Navy  Military  Personnel,  currently  held  in  judicial  custody  on  remand,  was  carrying  out  official  functions for the protection of the vessel  from  piracy  and  armed  robbery  in  the  extraterritorial  maritime  zones  which  at  the relevant time were considered as “risk  area”,  taking  also  in  consideration  information  provided  by  IMO  and  other  relevant  multinational  organization.  Thus, while acknowledging the obligations  of  Italy  under  international  law,  including the obligation to cooperate with  Indian  authorities  for  the  most  comprehensive  and  mutually  satisfactory  investigation of the event, the Embassy of  Italy recalls that the conduct of Italian  Navy Military Personnel officially acting

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in the performance of their duties should  not be open to judgment scrutiny in front  of any court other than the Italian ones.  

The  Embassy  of  Italy,  New  Delhi,  avails itself of this opportunity to renew  to  the  Ministry  of  External  Affairs,  Government of India, the assurances of its  highest consideration.

New Delhi, 29th February, 2012.

Consulate General of Italy, Mumbai.”

45. In fact, shorn of all legalese, the aforesaid  

note emphasises the stand of the Italian Government  

that the conduct of the Petitioner Nos.2 and 3 was  

in  fulfilment  of  their  official  duties  in  

accordance with national regulations, directives,  

instructions and orders, as well as the rules of  

piracy  contained  in  UNCLOS  and  the  relevant  UN  

Security Council Resolutions on Piracy off the Horn  

of Africa.

Page 54

46. Mr. Salve submitted that in the special facts  

of the case, the Petitioners were entitled to the  

reliefs prayed for in the Writ Petition and the  

Special Leave Petition.

47. Mr.  Gourab  Banerji,  Additional  Solicitor  

General,  who  appeared  for  the  Union  of  India,  

focussed his submissions on two issues raised by  

the Petitioners, namely, :-

(i) Whether  Indian  Courts  have  territorial   

jurisdiction to try Petitioner Nos.2 and 3   

under the provisions of the Indian Penal Code,  

1860?

(ii)If  so,  whether  the  Writ  Petitioners  are   

entitled to claim sovereign immunity?

Page 55

48. Mr.  Banerji  submitted  that  stripped  of  all  

embellishments,  the  bare  facts  of  the  incident  

reveal that on 15th February, 2012, FIR No.2 of  

2012  was  registered  with  the  Coastal  Police  

Station, Neendakara, Kollam, under Section 302 read  

with  Section  34  I.P.C.  alleging  that  a  fishing  

vessel, "St. Antony", was fired at by persons on  

board a passing ship, as a result of which, out of  

the  11  fishermen  on  board,  two  were  killed  

instantaneously.  It was alleged that the ship in  

question was M.V. Enrica Lexie.  The detailed facts  

pertaining to the incident could be found in the  

statement dated 28th February, 2012, filed by the  

Coast Guard before the Kerala High Court and the  

Charge-sheet filed on 18th May, 2012.   

49. The  defence  of  the  Petitioners  is  that  the  

Petitioner Nos.2 and 3 were members of the Military

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Protection  Detachment  deployed  on  the  Italian  

vessel and had taken action to protect the vessel  

against a pirate attack.   

50. Mr. Banerji submitted that it had been urged on  

behalf of the Petitioners that the Union of India  

had departed from its pleadings in urging that the  

Maritime Zones Act, 1976, was a departure from  and  

inconsistent with UNCLOS.  Mr. Banerji submitted  

that the legal position in this regard had already  

been  clarified  in  paragraphs  100  to  102  of  the  

decision in  Aban Loyd's case (supra) wherein this  

Court had re-emphasised the position that the Court  

could  look  into  the  provisions  of  international  

treaties, and that such an issue is no longer res  

integra. In  Gramophone Co. of India vs.  Birendra  

Bahadur Pandey[(1984) 2 SCC 534], this Court had  

held that even in the absence of municipal law, the  

treaties/conventions could not only be looked into,

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but could also be used to interpret municipal laws  

so  as  to  bring  them  in  consonance  with  

international law.   

51. Mr. Banerji urged that as far as the Union of  

India was concerned, an attempt must necessarily be  

made  in  the  first  instance,  to  harmonise  the  

Maritime Zones Act, 1976 with the UNCLOS.  If this  

was not possible and there was no alternative but a  

conflict  between  municipal  law  and  the  

international  convention,  then  the  provisions  of  

the 1976 Act would prevail.  Mr. Banerji urged that  

primacy  in  interpretation  by  a  domestic  Court,  

must,  in  the  first  instance,  be  given  to  the  

Maritime Zones Act, 1976 rather than the UNCLOS.  

Questioning  the  approach  of  the  Petitioners  in  

relying firstly on the UNCLOS and only, thereafter,  

on the provisions of the Maritime Zones Act, 1976,  

Mr.  Banerji  submitted  that  such  approach  was

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misconceived and was contrary to the precepts of  

Public International Law.

52.  Mr. Banerji submitted that the case of the  

Petitioners  that  the  Indian  Courts  had  no  

jurisdiction  to  take  cognizance  of  the  offence  

which  is  alleged  to  have  taken  place  in  the  

Contiguous Zone, which was beyond the territorial  

waters of India, as far as India was concerned, was  

misconceived.  The  Contiguous  Zone  would  also  be  

deemed to be a part of the territory of India,  

inasmuch as, the Indian Penal Code and the Code of  

Criminal  Procedure  had  been  extended  to  the  

Contiguous Zone/Exclusive Economic Zone by virtue  

of the Notification dated 27th August, 1981, issued  

under  Section  7(7)  of  the   Maritime  Zones  Act,  

1976.  Mr. Banerji submitted that according to the  

Union  of  India,  the  domestic  law  is  not  

inconsistent with the International law and in fact

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even as a matter of international law, the Indian  

Courts  have  jurisdiction  to  try  the  present  

offence.  The learned Additional Solicitor General  

submitted that in order to determine the issue of  

territorial jurisdiction, it would be necessary to  

conjointly read the provisions of Section 2 I.P.C.,  

the Maritime Zones Act, 1976 and the 27th August,  

1981 Notification and all attempts had to be made  

to harmonise the said provisions with the UNCLOS.  

However, if a conflict was inevitable, the domestic  

laws  must  prevail  over  the  International  

Conventions and Agreements.   

53. In this regard, Mr. Banerji first referred to  

the provisions of Section 2 of the Indian Penal  

Code  which  deals  with  punishment  of  offences  

committed  within  India.   In  this  context,  Mr.  

Banerji also referred to the Maritime Zones Act,  

1976, and more particularly, Section 7(7) thereof,

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under  which  the  notification  dated  27th  August,  

1981, had been published by the Ministry of Home  

Affairs, extending the provisions of Section 188-A  

of the Code of Criminal Procedure, 1973, to the  

Exclusive Economic Zone.

54.  Mr.  Banerji  urged  that  it  appears  to  have  

slipped  the  notice  of  all  concerned  that  the  

Notifications which had been applied in the  Aban  

Loyd's case (supra) were under Section 7(6) of the  

1976 Act and there appeared to be some confusion on  

the part of the Petitioners in regard to the scope  

of Sub-sections (6) and (7) of Section 7 thereof.  

Mr. Banerji urged that the judgment in Aban Loyd's  

case (supra) has to be understood in the light of  

the facts of that case where the issue was whether  

oil rigs situated in the Exclusive Economic Zone  

were foreign going vessels and, therefore, entitled  

to  consume  imported  stores  without  payment  of

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customs duty. In the said set of facts it was held  

by this Court that the territory of India for the  

purpose of customs duty was not confined to the  

land  and  territorial  waters  alone,  but  also  

notionally  extended  to  the  "designated  areas"  

outside the territorial waters. Mr. Banerji urged  

that  the  notification  dated  27th  August,  1981,  

issued by the Ministry of Home Affairs which had  

been relied upon by the Union of India, has not  

been issued for designated areas alone, but for the  

entire  Exclusive  Economic  Zone  to  enable  it  to  

exercise  and  protect  Indian  sovereign  rights  of  

exploitation of living natural resources, and more  

specifically its fishing rights, therein.  

55. Mr. Banerji submitted that the Notification of  

27th August, 1981, had been promulgated in exercise  

of powers conferred by Section 7(7) of the Maritime  

Zones Act, 1976.  Mr. Banerji also submitted that

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the  Indian  Penal  Code  and  the  Code  of  Criminal  

Procedure  had   been  extended  by  the  Central  

Government  to  the  Exclusive  Economic  Zone.  The  

Schedule to the Notification is in two parts.  Part  

I provides the list of enactments extended, whereas  

Part II provides the provision for facilitating the  

enforcement of the said Acts. Accordingly, while  

Part  I  of  the  Schedule  to  the  Notification  is  

relatable to Section 7(7)(a) of the Act, Part II of  

the  Schedule  is  relatable  to  Section  7(7)(b)  

thereof.   

56. The  learned  Additional  Solicitor  General  

submitted that the case of the Union of India rests  

on  two  alternative  planks.  According  to  one  

interpretation, the bare reading of Section 7(7)  

and the Notification suggests that once the I.P.C.  

has been extended to the Exclusive Economic Zone,  

which  includes  the  Contiguous  Zone,  the  Indian

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Courts  have  territorial  jurisdiction  to  try  

offences  committed  within  the  Contiguous  Zone.  

Another plank of the case of the Union of India,  

involves  a  contextual  interpretation  of  Section  

7(7)  and  the  1981  Notification.   Mr.  Banerji  

submitted  that  presuming  that  the  Notification  

provides for the extension of Indian law relating  

to only those matters specified in Section 7(4) of  

the  Act,  the  Indian  Courts  would  also  have  

territorial jurisdiction in respect of the present  

case.  Mr. Banerji submitted that notwithstanding  

the submission made on behalf of the Petitioners  

that such an interpretation would be contrary to  

the provisions of UNCLOS, particularly, Article 56  

thereof, the same failed to notice Article 59 which  

permits  States  to  assert  rights  or  jurisdiction  

beyond  those  specifically  provided  in  the  

Convention.  Alternatively, even in terms of the  

contextual interpretation of Section 7(7) of the

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Act, the same would also establish the territorial  

jurisdiction  of  the  Indian  Courts.   Mr.  Banerji  

submitted that even on a reading of Section 7(4) of  

the Maritime Zones Act, 1976, the Petitioners had  

laid emphasis on Sub-Clause (b), although, various  

other rights and privileges had also been reserved  

to  the  Indian  Union.   It  was  urged  that  the  

importance  of  the  other  Sub-Clauses,  and,  in  

particular, (a) and (e) would fully establish the  

territorial jurisdiction of the Indian Courts to  

try the offence involving the unlawful killing of  

two Indian citizens on board an Indian vessel.  Mr.  

Banerji also urged that reading Section 7(4) of the  

Act, in harmony with Section 7(7) thereof, would  

include  within  its  ambit  the  power  to  extend  

enactments  for  the  purposes  of  protecting  

exploration,  exploitation,  conservation  and  

management  of  natural  resources  which  include  

fishing rights.  Accordingly, if the provisions of

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I.P.C.  and  the  Cr.P.C.  have  been  extended  

throughout the Exclusive Economic Zone, inter alia,  

for the purpose of protecting fishing rights under  

Section 7(4)(a), the same would include extending  

legislation  for  the  safety  and  security  of  the  

Indian fishermen.  By opening fire on the Indian  

fishing vessel and killing two of the fishermen on  

board the said vessel within the Contiguous Zone,  

the Petitioner Nos.2 and 3 made themselves liable  

to be tried by the Indian Courts under the domestic  

laws.           

57. On the question as to whether the State of  

Kerala had jurisdiction to try the offence, since  

the incident had taken place in the zone contiguous  

to the territorial waters off the coast of Kerala,  

Mr.  Banerji  submitted  that  the  Kerala  Courts  

derived jurisdiction in the matter from Section 183  

of the Code of Criminal Procedure, which has also

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been extended to the Exclusive Economic Zone by the  

1981 Notification and relates to offences committed  

on journeys or voyages.  Mr. Banerji submitted that  

when  such  an  offence  is  committed,  it  could  be  

inquired into or tried by a court through or into  

whose local jurisdiction the person or thing passed  

in  the  course  of  that  journey  or  voyage.   Mr.  

Banerji  submitted  that  the  voyage  contemplated  

under the said provision is not the voyage of the  

Enrica Lexie, but the voyage of St. Antony.

58.  Apart from the above, the main case of the  

Union of India is that on a plain reading of the  

language  of  Section  7(7)  or  on  a  contextual  

interpretation thereof, the Republic of India has  

jurisdiction to try the Petitioner Nos.2 and 3 in  

its  domestic  courts.  Even  the  1981  Notification  

could be read down and related to Section 5 of the  

1976 Act.  Referring to the decision of this court

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in  Hukumchand  Mills Vs.  State  of  Madhya  Pradesh  

[AIR  1964  SC  1329]  and  N.  Mani Vs.  Sangeetha  

Theatre & Ors. [(2004) 12 SCC 278], Mr. Banerji  

urged  that  if  the  executive  authority  had  the  

requisite power under the law, and if the action  

taken  by  the  executive  could  be  justified  under  

some  other  power,  mere  reference  to  a  wrong  

provision of law would not vitiate the exercise of  

power by the executive, so long as the said power  

exists.   

59.  Regarding the applicability of Section 4 of  

the Indian Penal Code to the facts of the case, Mr.  

Banerji  urged  that  the  provisions  of  the  I.P.C.  

would, in any event, apply to any citizen of India  

in any place without and beyond India or to any  

person on any ship or aircraft registered in India,  

wherever it may be.  Mr. Banerji submitted that the  

Explanation to the Section makes it clear that the

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word “offence” includes every act committed outside  

India  which,  if  committed  in  India,  would  be  

punishable under the said Code.

60. Mr. Banerji submitted that although the learned  

Advocate  General  of  the  State  of  Kerala  had  

conceded  before  the  learned  Single  Judge  of  the  

Kerala  High  Court  that  Section  4  of  the  I.P.C.  

would not apply to the facts of the case, the Union  

of India was not a party to such concession, which,  

in any event, amounted to a concession in law.  Mr.  

Banerji urged that the words “aboard” or “on board”  

are not used in Section 4(2) I.P.C. and an unduly  

restrictive  interpretation  of  the  said  Section  

would require both the victim and the perpetrator  

to be aboard the same ship or aircraft, which could  

lead  to  consequences  where  pirate,  hijacker  or  

terrorist,  who  fires  upon  an  innocent  Indian  

citizen within an Indian ship or aircraft, would

Page 69

escape prosecution in India.  Mr. Banerji contended  

that the provisions of Section 4(2) I.P.C. has to  

be  read  with  Section  188  Cr.P.C.,  which  

subsequently stipulates that where an offence is  

committed  outside  India  by  a  citizen  of  India,  

whether on the high seas or elsewhere, or by a  

person  not  being  such  citizen,  on  any  ship  or  

aircraft registered in India, he may be dealt with  

in  respect  of  such  offence  as  if  it  had  been  

committed at any place within India at which he may  

be found.  Mr. Banerji submitted that in view of  

the  concession  made  on  behalf  of  the  State  of  

Kerala,  the  question  of  the  scope  of  Section  4  

I.P.C.  could  be  left  open  to  be  decided  in  an  

appropriate case.   

61. Mr.  Banerji  submitted  that,  although  a  good  

deal of emphasis had been laid by the Petitioners  

on  the  observation  contained  in  the  Shipping

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Ministry's Interim Report that the fishing vessel  

was not registered under the Merchant Shipping Act,  

1958, but under a local law pertaining to the State  

of Tamil Nadu, the same was only a red herring, as  

the Kerala State Fishing Laws do not permit fishing  

vessels to sail beyond the territorial waters of  

their respective States.          

Mr. Banerji urged that such a submission may  

have been relevant in the context of Section 4(2)  

I.P.C.,  wherein  the  expression  "registered  in  

India" had been used, but the same would have no  

significance to the facts of this case, since the  

said  provisions  were  not  being  invoked  for  the  

purposes of this case.  The learned ASG contended  

that even if the fishing vessel had sailed beyond  

its  permitted  area  of  fishing,  the  same  was  a  

matter of evidence, which stage had yet to arrive.  

Mr. Banerji contended that, on the other hand, what

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was  more  important  were  the  provisions  of  the  

Maritime Zones of India (Regulation of Fishing by  

Foreign  Vessels)  Act,  1981,  wherein  in  the  

Statement of Objects and Reasons of the Act it has  

been indicated that the Act was in the nature of  

umbrella  legislation  and  it  was  envisaged  that  

separate legislation for dealing in greater detail  

with the regulation, exploration and exploitation  

of particular resources in the country's Maritime  

Zones and to prevent poaching activities of foreign  

fishing vessel to protect the fishermen who were  

citizens  of  India,  should  be  undertaken  in  due  

course. In this context, Mr. Banerji further urged  

that the provisions of the Merchant Shipping Act  

dealing with the registration of Indian ships, do  

not include fishing vessels, which are treated as  

an  entirely  distinct  and  separate  category  in  

Chapter XV-A of the said Act.

Page 72

62. Mr. Banerji urged that the right of passage  

through  territorial  waters  is  not  the  subject  

matter of dispute involved in the facts of this  

case.  On the other hand, Article 56 of UNCLOS,  

which  has  been  relied  upon  by  the  Petitioners  

indicate  that  the  rights  given  to  the  coastal  

States  are  exhaustive.  However,  while  the  

Petitioners have laid emphasis on Article 56(1)(b),  

the Union of India has laid emphasis on Article  

56(1)(a) read with Article 73 of UNCLOS to justify  

the action taken against the accused. Mr. Banerji  

urged that even if Article 16 of UNCLOS is given a  

restrictive  meaning,  the  action  of  the  Indian  

Courts would be justified, inasmuch as, and action  

seeks to protect the country's fishermen.  

63. Mr. Banerji contended that Article 59 of the  

UNCLOS,  which  deals  with  the  basis  for  the

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resolution of conflicts regarding the attribution  

of  rights  and  jurisdiction  in  the  Exclusive  

Economic  Zone,  contemplates  rights  beyond  those  

which  are  attributable  under  the  Convention.  

However,  even  if  it  could  be  assumed  that  the  

rights asserted by India are beyond those indicated  

in Article 56 of UNCLOS, such conflict would have  

to be resolved on the basis of equity and in the  

light of all circumstances.  Accordingly, even if  

both the Republic of Italy and India had the power  

to prosecute the accused, it would be much more  

convenient  and  appropriate  for  the  trial  to  be  

conducted in India, having regard to the location  

of the incident and the nature of the evidence and  

witnesses to be used against the accused.   

64. Responding to the invocation of Article 97 of  

UNCLOS by the Petitioners, Mr. Banerji urged that  

whether under International law Italy has exclusive

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jurisdiction to prosecute the Petitioner Nos.2 and  

3 is a question which would be relevant in the  

event  the  Court  found  it  necessary  to  invoke  

Section Section 7(4)(e) of the Maritime Zones Act,  

1976.  Mr. Banerji urged that in order to claim  

exclusive jurisdiction, the Republic of Italy had  

relied upon Article 97 of UNCLOS which, however,  

dealt with the collision of shipping vessels and  

was unconnected with any crime involving homicide.  

The  learned  Additional  Solicitor  General  pointed  

out that the title of Article 97 reads that it  

provides  for  Penal  jurisdiction  in  matters  of  collision or any other incident of navigation and  that, as had been pointed out by Mr. Harish Salve,  

appearing for the Petitioners, Article 97(1), inter  

alia, provides that in the event of collision or  

any  other  incident  of  navigation  concerning  the  

ship  on  the  high  seas,  involving  the  penal  or  

disciplinary responsibility of the Master or of any

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other person in the service of the ship, no penal  

or  disciplinary  proceedings  may  be  instituted  

against such person except before the judicial or  

administrative authorities either of the flag State  

or of the State of which such person is a national.  

Mr. Banerji urged that the expression "incident of  

navigation" used in Article 97, did not contemplate  

a  situation  where  a  homicide  takes  place  and,  

accordingly, the provisions of Article 97 of the  

UNCLOS would not have any application to the facts  

of the present case.   

65. On Article 11 of the Geneva Convention on the  

Law of the Seas, 1958, Mr. Banerji submitted that  

the  killing  of  an  Indian  national  on  board  an  

Indian vessel could not be said to be an incident  

of navigation, as understood under the said Article  

which  deals  mainly  with   collision  on  the  high  

seas. Referring to Oppenheim on International Law

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[9th Edn. Vol.1], Mr. Banerji submitted that the  

phrase  "accident  of  navigation"  has  been  used  

synonymously  with  "incident  of  navigation".  

Consequently,  the  meaning  of  the  expression  

"accident of navigation" provided in the dictionary  

defines the same to mean mishaps that are peculiar  

to travel by sea or to normal navigation; accidents  

caused at sea by the action of the elements, rather  

than  by  a  failure  to  exercise  good  handling,  

working or navigation or a ship.  Furthermore, if  

Article  97  of  UNCLOS  is  to  include  a  homicide  

incident,  Article  92  thereof  would  be  rendered  

otiose.  Mr. Banerji submitted that the decision in  

the Lotus case (supra) continued to be good law in  

cases such as the present one. It was urged that  

under the Passive Personality principle, States may  

claim  jurisdiction  to  try  an  individual  where  

actions might have affected nationals of the State.  

Mr.  Banerji  submitted  that  various  Articles  of

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UNCLOS do not support the case attempted to be made  

out by the Republic of Italy, either on merits, or  

on the question of exclusive jurisdiction.  

66. On  the  claim  of  sovereign  immunity  from  

criminal  prosecution,  Mr.  Banerji  submitted  that  

the Petitioner Nos.2 and 3 were not entitled to the  

same.  Mr.  Banerji  submitted  that  while  the  

International law was quite clear on the doctrine  

of sovereign immunity, the important question to be  

considered  in  this  case  is  the  extent  of  such  

sovereign immunity which could be applied to the  

facts of this case.  In support of his submissions,  

Mr. Benerji referred to certain observations made  

by  Lord  Denning  M.R.  in  Trendtex  Trading  

Corporation vs.  Bank  of  Nigeria [(1997)  1  Q.B.  

529], wherein it was observed as follows :-

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"The doctrine of sovereign immunity is based  on international law. It is one of the rules  of international law that a sovereign state  should not  be impleaded  in the  courts of  another  sovereign  state  against  its  will.  Like all rules of international law, this  rule is said to arise out of the consensus  of the civilized nations of the world.  All  nations agree upon it.  So it is part of the  law of nations."

Lord Denning, however, went on to observe that  

notion  of  a  consensus  was  merely  fictional  and  

there was no agreed doctrine of sovereign immunity.  

However, this did not mean that there was no rule  

of International law on the subject. It only meant  

that there is difference of opinion as to what that  

rule  is.   Each  country  delimits  for  itself  the  

bounds  of  sovereign  immunity.   Each  creates  for  

itself the exceptions from it.   

67. In  this  line  of  reasoning,  Mr.  Banerji  

submitted that the provisions of Section 2 I.P.C.

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and its impact would have to be considered before  

the impact of Customary International Law could be  

considered.  Mr. Banerji pointed out that Section 2  

I.P.C. begins with the words - "every person" which  

makes all offenders, irrespective of nationality,  

punishable under the Code and not otherwise, for  

every act or omission contrary to the provisions  

thereof, of which he is found to be guilty within  

India. Reference was made by Mr. Banerji to the  

decision of this Court in  Mobarik Ali Ahmad Vs.  

State of Bombay [AIR 1957 SC 857], wherein this  

Court  had  held  that  the  exercise  of  criminal  

jurisdiction  depends  on  the  location  of  the  

offence, and not on the nationality of the alleged  

offender or his corporeal presence in India.  This  

Court pointed out that the plain meaning of the  

phrase  "every  person"  is  that  it  embraces  all  

persons  without  limitation  and  irrespective  of  

nationality,  allegiance,  rank,  status,  caste,

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colour or creed, except such as may be specially  

exempted from criminal proceedings or punishment by  

virtue of specific provisions of the Constitution  

or any statutory provisions or some well-recognised  

principle  of  international  law,  such  as  foreign  

sovereigns, ambassadors, diplomatic agents and so  

forth, accepted in the municipal law.   

68. Going a step further, Mr. Banerji also referred  

to  the  United  Nations  Privileges  and  Immunities  

Act,  1947,  and  the  Diplomatic  Relations  (Vienna  

Convention)  Act,  1972,  which  gave  certain  

diplomats,  missions  and  their  members  diplomatic  

immunity  even  from  criminal  jurisdiction.   Mr.  

Banerji  submitted  that  the  1972  Act  had  been  

enacted to give effect to the Vienna Convention on  

Diplomatic Relations, 1961.  The effect of Section  

2 of the Act is to give the force of law in India  

to certain provisions set out in the Schedule to

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the  Act.   Mr.  Banerji  specifically  referred  to  

Article 31 of the Convention, which is extracted  

hereinbelow :-

"ARTICLE 31

1. A diplomatic agent shall enjoy immunity  from  the  criminal  jurisdiction  of  the  receiving  State.  He  shall  also  enjoy  immunity  from  its  civil  and  administrative  jurisdiction,  except  in  the case of :

(a)A  real  action  relating  to  private  immovable  property  situated  in  the  territory  of  the  receiving  State,  unless he holds it on behalf of the  sending  State  for  the  purposes  of  the mission;  

(b)An action relating to succession in  which  the  diplomatic  agent  is  involved as executor, administrator,  heir or legatee as a private person  and  not  on  behalf  of  the  sending  State;

(c)An  action  relating  to  any  professional or commercial activity  exercised by the diplomatic agent in  the  receiving  State  outside  his  official functions.

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2. A  diplomatic  agent  is  not  obliged  to  give evidence as a witness.

3. No measure of execution may be taken in  respect of a diplomatic agent except in  the  cases  coming  under  subparagraphs  (a), (b) and (c) of paragraph 1 of this  article, and provided that the measures  concerned  can  be  taken  without  infringing  the  inviolability  of  his  person or of his residence.   

4. The immunity of a diplomatic agent from  the jurisdiction of the receiving State  does  not  exempt  him  from  the  jurisdiction of the sending State."

69. Mr. Banerji urged that as per the Policy of the  

Government  of  India,  no  foreign  arms  or  foreign  

private  armed  guards  or  foreign  armed  forces  

personnel,  accompanying  merchant  vessels,  are  

allowed diplomatic clearance.  Nor is it the policy  

of the Government of India to enter into any Status  

of Forces Agreement (SOFA) by which foreign armed  

forces  are  given  immunity  from  criminal  

prosecution.  Mr. Banerji sought to emphasise the  

fact that the United Convention or Jurisdictional

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Immunities of States and their Property, 2004, had  

not come into force.  Accordingly, the Petitioners'  

case  that  the  said  Convention  reflects  the  

Customary International Law, cannot be accepted.  

70. Also referring to the decision in  Pinochet's  

case No.3 [(2000) 1 AC 147], Mr. Banerji submitted  

that  the  said  case  concerned  the  immunity  of  a  

former Head of State from the criminal jurisdiction  

of another State, not the immunity of the State  

itself  in  proceedings  designed  to  establish  its  

liability to damages.  The learned ASG submitted  

that even though the Republic of Italy may claim  

sovereign immunity when sued in an Indian Court for  

damages for the unlawful acts of its citizens, it  

was  clear  that  even  if  it  is  assumed  that  the  

Petitioner Nos.2 and 3 were acting under orders of  

the Italian Navy, there is no basis for any claim  

of immunity from criminal jurisdiction in the face

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of Section 2 I.P.C.  Mr. Banerji submitted that the  

action of the Petitioner Nos.2 and 3 was not acta  

jure imperii but acta res gestionis and hence the  

scope of the various Italian laws would have to be  

established  by  way  of  evidence.   Mr.  Banerji  

submitted  that  since  the  claim  of  functional  

immunity  from  criminal  jurisdiction  was  not  

maintainable, the Special Leave Petition was liable  

to be dismissed.   

71. On the filing of the Writ Petition before this  

Court, being Writ Petition (Civil) No.135 of 2012,  

Mr.  Banerji  urged  that  Writ  Petition  (Civil)  

No.4542 of 2012, for the self-same reliefs had been  

filed  by  the  same  Petitioners  before  the  Kerala  

High Court and the same being dismissed, was now  

pending  consideration  in  the  Special  Leave  

Petition.   Mr.  Banerji  submitted  that  the  Writ  

Petition  was  wholly  misconceived  since  the

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Petitioners  were  not  entitled  to  pursue  two  

parallel proceedings for the self-same reliefs.  It  

was submitted that the Writ Petition under Article  

32 was, therefore, liable to be rejected.  

72. Appearing  for  the  State  of  Kerala  and  the  

Investigating  Officer  of  the  case,  Mr.  V.  Giri,  

learned Senior Advocate, submitted that on account  

of  the  death  of  Valentine  alias  Jelastine  and  

Ajeesh Pink, two of the crew members on board the  

Indian fishing vessel, St. Antony, Crime No.2 of  

2012,  was  registered  by  the  Neendakara  Coastal  

Police Station for offences alleged to have been  

committed under Sections 302, 307 and 427 read with  

Section 34 I.P.C. and Section 3 of the Suppression  

of Unlawful Activities Act (SUA Act). On the return  

of  the  Italian  vessel  to  Kochi,  the  Petitioner  

Nos.2 and 3 were placed under arrest by the Kerala

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Police on 19th February, 2012, in connection with  

the said incident and are now in judicial custody.

73. Mr. Giri submitted that the Maritime Zones Act,  

1976, was enacted by Parliament after the amendment  

of  Article  297  of  the  Constitution  by  the  40th  

Constitution  (Amendment)  Act  of  1976,  which  

provides for the vesting in the Union of all things  

of  value  within  territorial  waters  or  the  

Continental Shelf and resources of the Exclusive  

Economic Zone.  Mr. Giri urged that the concept of  

territorial  waters  or  Continental  Shelf  and  

Exclusive Economic Zone originated in Article 297  

and the 1976 Act in relation to the municipal laws  

of India.

74. Mr. Giri submitted that the Maritime Zones Act,  

1976, and the Notification dated 27th August, 1981,  

extending the provisions of Section 188-A Cr.P.C.

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to the Exclusive Economic Zone, were prior in point  

of time to UNCLOS 1982 and the date on which India  

ratified the said convention. Mr. Giri submitted  

that  despite  the  legislative  competence  of  

Parliament under Article 253, read with Entry 14 of  

List  I  of  the  Seventh  Schedule,  conferring  on  

Parliament the power to enact laws to give effect  

to  the  provisions  of  a  Treaty,  Agreement  or  

Convention,  to  which  India  is  a  party,  the  

provisions of UNCLOS have not as yet been made part  

of the Municipal Law of India.  Mr. Giri urged that  

several  International  Conventions  have  been  

ratified by the Indian Republic to give effect to  

provisions  of  Conventions  to  which  India  is  a  

signatory, such as the Diplomatic Relations (Vienna  

Convention)  Act,  1972,  to  give  effect  to  the  

provisions of the Vienna Convention on Diplomatic  

Relations, as also the Carriage by Air Act, 1972,  

to  give  effect  to  the  provisions  of  the  Warsaw

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Convention.  In  the  instant  case,  however,  the  

Indian Parliament has not enacted any law to give  

effect to the provisions of UNCLOS 1982.   

75. Mr. Giri, however, conceded that International  

Conventions could not be ignored while enforcing  

the  municipal  law  dealing  with  the  same  subject  

matter  and  in  any  given  case,  attempts  were  

required to be made to harmonise the provisions of  

the  international  law  with  the  municipal  law.  

However, in the case of conflict between the two,  

it is the municipal law which would prevail.  In  

this regard, reference was made to the decision of  

this Court in what is commonly referred to as the  

"Berubari case" [AIR 1960 SC 845], which was, in  

fact, a Presidential Reference under Article 143(1)  

of the Constitution of India on the implementation  

of  the  India-Pakistan  Agreement  relating  to  

Berubari  Union  and  Exchange  of  Enclaves.  In  the

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said Reference, the issue involved was with regard  

to  an  Agreement  entered  into  between  India  and  

Pakistan on 10th September, 1958, to remove certain  

border  disputes  which  included  the  division  of  

Berubari  Union  No.12  and  another.   In  the  said  

Reference, this Court was, inter alia, called upon  

to consider the question as to how a foreign Treaty  

and Agreement could be given effect to.  The said  

Reference was answered by this Court by indicating  

that foreign Agreements and Conventions could be  

made  applicable  to  the  municipal  laws  in  India,  

upon  suitable  legislation  by  Parliament  in  this  

regard.

76. Reference was also made to the decision of this  

Court in  Maganbhai Ishwarbhai Patel Vs.  Union of  

India [(1970) 3 SCC 400], where the subject matter  

was the claim to a disputed territory in the Rann  

of Kutch, which the Petitioners claimed was a part

Page 90

of India.  It was noted that the Petitioners' claim  

had originated from the very creation of the two  

dominions.  It was also the Petitioners' claim that  

India  had  all  along  exercised  effective  

administrative control over the territory and that  

giving up a claim to it involved cession of Indian  

Territory  which  could  only  be  effected  by  a  

constitutional amendment and not by an executive  

order.

77. Other judgments were also referred to, to which  

we may refer if the need arises. Mr. Giri submitted  

that  if  a  Treaty  or  an  Agreement  or  even  a  

Convention  does  not  infringe  the  rights  of  the  

citizens  or  does  not  in  the  wake  of  its  

implementation modify any law, then it is open to  

the Executive to come to such Treaty or Agreement  

and  the  Executive  was  quite  competent  to  issue  

orders, but if in consequence of the exercise of

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the  executive  power,  rights  of  the  citizens  or  

others  are  restricted  or  infringed  or  laws  are  

modified, the exercise of power must be supported  

by legislation.   

78. It was also submitted that in the event the  

provisions of UNCLOS were implemented without the  

sanction  of  Parliament,  it  would  amount  to  

modification  of  a  municipal  law  covered  by  the  

Maritime Zones Act, 1976.  Mr. Giri contended that  

the 1976 Act, which was enacted under Article 297  

of the Constitution, is a law which applies to the  

Territorial  Waters,  Contiguous  Zone,  Continental  

Shelf and the Exclusive Economic Zone over the seas  

in  which  the  incident  had  taken  place.   If,  

therefore, the provisions of the Convention were to  

be accepted as having conferred jurisdiction on the  

Indian  judiciary,  such  a  situation  would  be  

contrary to the provisions of the Maritime Zones

Page 92

Act,  1976,  which  contemplates  the  extension  of  

domestic penal laws to the Exclusive Economic Zone  

in such a manner that once extended, it would, for  

all applicable purposes, include such zone to be a  

part of the territory of India.  Mr. Giri submitted  

that adoption or implementation of the provisions  

of UNCLOS would not only affect the rights of the  

citizens of this country, but also give rise to a  

legal regime, which would be inconsistent with the  

working of the Maritime Zones Act, 1976, read with  

the notifications issued thereunder.  Consequently,  

neither  the  Indian  Penal  Code  nor  the  Code  of  

Criminal  Procedure  or  the  notifications  issued,  

making them applicable to the Exclusive Economic  

Zone, as if they were part of the territory of  

India, could be kept inoperative by UNCLOS, 1982.

79. On  the  question  of  conflict  between  the  

provisions of the Maritime Zones Act and UNCLOS,

Page 93

Mr.  Giri  reiterated  the  submissions  made  by  Mr.  

Gaurav Banerji, on behalf of the Union of India,  

and contended that even if there are similarities  

between some of the clauses of the 1976 Act and of  

the  UNCLOS,  Article  97  of  UNCLOS  restricts  the  

operation,  otherwise  contemplated  under  the  

Territorial  Waters  Act,  1976.   Mr.  Giri  also  

reiterated  that  in  case  of  conflict  between  a  

Treaty or a Convention and a municipal law, the  

latter  shall  always  prevail,  except  in  certain  

given circumstances.   

80. Regarding  the  jurisdiction  of  the  State  of  

Kerala to prosecute the accused, Mr. Giri submitted  

that  the  State  of  Kerala  and  its  officers  were  

exercising jurisdiction as provided in the Indian  

Penal Code and the Code of Criminal Procedure.  Mr.  

Giri  submitted  that  the  jurisdiction  of  the  

Neendakara Police Station, situated in the District

Page 94

of  Kollam   in  the  State  of  Kerala,  and  the  

concerned courts, is reserved under Sections 179  

and 183 Cr.P.C.  It was urged that at this stage  

the jurisdiction of the Indian Courts would have to  

be  ascertained  on  the  premise  that  the  version  

pleaded by the prosecution is correct and that the  

fishing  boat,  St.  Antony,  which  was  berthed  at  

Neendakara, had commenced its voyage from within  

the jurisdiction of Neendakara Police Station and  

had come back and berthed at the same place after  

the incident of 15th February, 2012, and that the  

said  facts  brought  the  entire  matter  within  the  

jurisdiction of the Neendakara Police Station and,  

in consequence, the Kerala State Police.

81. Mr. Giri lastly contended that the fact that  

"St. Antony" is not registered under the Merchant  

Shipping Act, 1958, and is only a fishing boat,  is  

of  little  consequence,  since  a  fishing  boat  is

Page 95

separately registered under Section 435C, Part XV-A  

of the aforesaid Act.  In this case, the fishing  

boat was registered at Colachel in the State of  

Tamil Nadu under Registration No. TN/15/MFB/2008.  

According to Mr. Giri, the question as to whether  

the  fishing  vessel  was  registered  under  the  

Merchant Shipping Act or not was irrelevant for the  

purpose of this case and, since the incident had  

taken  place  within  20.5  nautical  miles  from  the  

Indian  coastline,  falling  within  the  Contiguous  

Zone/Exclusive Economic Zone of India, it must be  

deemed to be a part of the Indian territory for the  

purpose of application of the Indian Penal Code and  

the  Cr.P.C.  by  virtue  of  Section  7(7)  of  the  

Maritime  Zones  Act  read  with  Notification  

S.O.671(E)  dated  27th  August,  1981.   Mr.  Giri  

submitted that the case made out in the Special  

Leave Petition did not merit any interference with  

the judgment of the learned Single Judge of the

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Kerala High Court, nor was any interference called  

for in the Writ Petition filed by the Petitioners  

in this Court.  Learned counsel submitted that both  

the  petitions  were  liable  to  be  dismissed  with  

appropriate cost.                     

82. Two issues, both relating to jurisdiction, fall  

for determination in this case.  While the first  

issue concerns the jurisdiction of the Kerala State  

Police to investigate the incident of shooting of  

the  two  Indian  fishermen  on  board  their  fishing  

vessel, the second issue, which is wider in its  

import, in view of the Public International Law,  

involves the question as to whether the Courts of  

the Republic of Italy or the Indian Courts have  

jurisdiction to try the accused.

83. We propose to deal with the jurisdiction of the  

Kerala  State  Police  to  investigate  the  matter

Page 97

before dealing with the second and larger issue,  

the decision whereof depends on various factors.  

One such factor is the location of the incident.

84. Admittedly,  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  

of the State of Kerala, but within the Contiguous  

Zone, over which the State Police of the State of  

Kerala  ordinarily  has  no  jurisdiction.  The  

submission made on behalf of the Union of India and  

the State of Kerala to the effect that with the  

extension of Section 188A of the Indian Penal Code  

to the Exclusive Economic Zone, the provisions of  

the  said  Code,  as  also  the  Code  of  Criminal  

Procedure, stood extended to the Contiguous Zone  

also, thereby vesting the Kerala Police with the

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jurisdiction to investigate into the incident under  

the provisions thereof, is not tenable. The State  

of Kerala had no jurisdiction over the Contiguous  

Zone and even if the provisions of the Indian Penal  

Code and the Code of Criminal Procedure Code were  

extended to the Contiguous Zone, it did not vest  

the State of Kerala with 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  the  

Indian  Penal  Code  and  the  Code  of  Criminal  

Procedure 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.  

Page 99

85. The submissions advanced on behalf of the Union  

of India as well as the State of Kerala that since  

the  Indian  fishing  vessel,  the  St.  Antony,  had  

proceeded on its fishing expedition from Neendakara  

in Kollam District and had returned thereto after  

the incident of firing, the State of Kerala was  

entitled to inquire into the incident, is equally  

untenable, since the cause of action for the filing  

of the F.I.R. occurred outside the jurisdiction of  

the Kerala Police under Section 154 of the Cr.P.C.  

The  F.I.R.  could  have  been  lodged  at  Neendakara  

Police station, but that did not vest the Kerala  

Police with jurisdiction to investigate into the  

complaint.  It  is  the  Union  of  India  which  was  

entitled in law to take up the investigation and to  

take further steps in the matter.

Page 100

86. Furthermore, in this case, one has to take into  

account another angle which is an adjunct of Public  

International  Law,  since  the  two  accused  in  the  

case  are  marines  belonging  to  the  Royal  Italian  

Navy, who had been deputed on M.V. Enrica Lexie,  

purportedly in pursuance of an Italian Decree of  

Parliament,  pursuant  to  which  an  Agreement  was  

entered into between the Republic of Italy on the  

one hand and the Italian Shipowners’ Confederation  

(Confitarma) on the other.  This takes the dispute  

to a different level where the Governments of the  

two  countries  become  involved.   The  Republic  of  

Italy  has,  in  fact,  from  the  very  beginning,  

asserted its right to try the two marines and has  

already commenced proceedings against them in Italy  

under  penal  provisions  which  could  result  in  a  

sentence of 21 years of imprisonment if the said  

accused are convicted.  In such a scenario, the

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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 jurisdiction of the  

State  unit.  As  mentioned  hereinbefore,  the  

extension of Section 188A I.P.C. to the Exclusive  

Maritime Zone, of which the Contiguous Zone is also  

a part, did not also extend the authority of the  

Kerala State Police beyond the territorial waters,  

which is the limit of its area of operations.

87. What then makes this case different from any  

other case that may involve similar facts, so as to  

merit exclusion from the operation of Section 2 of  

the Indian Penal Code, as urged by Mr. Salve?  For  

the sake of reference, Section 2 of Indian Penal  

Code, is extracted hereinbelow :-

"2.  Punishment  of  offences  committed  within  India  -  Every  person  shall  be  liable to punishment under this Code and  not otherwise for every act or omission

Page 102

contrary to the provisions thereof, of  which he shall be guilty within India."  

88. The  answer  to  the  said  question  is  the  

intervention of the UNCLOS 1982, which sets out the  

legal framework applicable to combating piracy and  

armed  robbery  at  sea,  as  well  as  other  ocean  

activities.  The said Convention which was signed  

by India in 1982 and ratified on 29th June, 1995,  

encapsulates the law of the sea and is supplemented  

by several subsequent resolutions adopted by the  

Security Council of the United Nations.

89. Before  UNCLOS  came  into  existence,  the  law  

relating  to  the  seas  which  was  in  operation  in  

India,  was  the  Territorial  Waters,  Continental  

Shelf, Exclusive Economic Zone and Other Maritime  

Zones Act, 1976, which spelt out the jurisdiction  

of  the  Central  Government  over  the  Territorial

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Waters,  the  Contiguous  Zones  and  the  Exclusive  

Economic Zone.

90. In addition to the above was the presence of  

Article 11 of the Geneva Convention or the Law of  

the  Seas,  1958,  and  the  interpretation  of  the  

expression "incident of navigation" used therein,  

in its application to the firing resorted to by the  

Petitioner  Nos.2  and  3  from  on  board  the  M.V.  

Enrica Lexie.

91. What is also of some relevance in the facts of  

this case is Resolution 1897 of 2009, adopted by  

the Security Council of the United Nations on 30th  

November,  2009,  wherein  while  recognizing  the  

menace  of  piracy,  particularly  off  the  coast  of  

Somalia, the United Nations renewed its call upon  

States  and  regional  organizations  that  had  the  

capacity  to  do  so,  to  take  part  in  the  fight

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against piracy and armed robbery off the Sea of  

Somalia in particular.   

92. The provisions of the Maritime Zones Act, 1976,  

take note of the Territorial Waters, the Contiguous  

Zone,  the  Continental  Shelf  and  the  Exclusive  

Economic Zone.  Section 7 of the said enactment  

deals with the Exclusive Economic Zone of India and  

stipulates  the  same  to  be  an  area  beyond  and  

adjacent to the Territorial Waters extending upto  

200 nautical miles from the nearest point of the  

baseline of the Kerala coast.  It is quite clear  

that the Contiguous Zone is, therefore, within the  

Exclusive  Economic  Zone  of  India  and  the  laws  

governing the Exclusive Economic Zone would also  

govern  the  incident  which  occurred  within  the  

Contiguous Zone, as defined under Section 5 of the  

aforesaid Act.  The provisions of the UNCLOS is in  

harmony  with  and  not  in  conflict  with  the

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provisions of the Maritime Zones Act, 1976, in this  

regard.  Article 33 of the Convention recognises  

and describes the Contiguous Zone of a nation to  

extend to 24 nautical miles from the baseline from  

which  the  breadth  of  the  territorial  sea  is  

measured.  This is in complete harmony with the  

provisions of the 1976 Act.  Similarly, Articles 56  

and 57 describe the rights, jurisdiction and duties  

of the coastal State in the Exclusive Economic Zone  

and the breadth thereof extending to 20 nautical  

miles from the baseline from which the breadth of  

the territorial sea is measured.  This provision is  

also in consonance with the provisions of the 1976  

Act.  The area of difference between the provisions  

of the Maritime Zones Act, 1976, and the Convention  

occurs  in  Article  97  of  the  Convention  which  

relates  to  the  penal  jurisdiction  in  matters  of  

collision  or  any  other  incident  of  navigation  (emphasis added).  

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93. The present case does not involve any collision  

between the Italian Vessel and the Indian Fishing  

Vessel.  However, it has to be seen whether the  

firing incident could be said to be covered by the  

expression "incident of navigation".  Furthermore,  

in the facts of the case, as asserted on behalf of  

the  Petitioners,  the  incident  also  comes  within  

Article 100 of the Convention which provides that  

all States shall cooperate to the fullest possible  

extent in the repression of piracy on the high seas  

or in any other place outside the jurisdiction of  

any State.  If Article 97 of the Convention applies  

to the facts of this case, then in such case, no  

penal or disciplinary proceeding can be instituted  

against the Master or any other person in service  

of  the  ship,  except  before  the  judicial  or  

administrative authorities either of the Flag State  

or of the State of which such person is a national.

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Article  97(3)  stipulates  in  clear  terms  that  no  

arrest or detention of the ship, even as a measure  

of  investigation,  shall  be  ordered  by  any  

authorities other than those of the Flag State.  In  

this case, the Italian Vessel, M.V. Enrica Lexie,  

was flying the Italian flag.  It may be recalled  

that the St. Antony was not flying an Indian flag  

at the time when the incident took place.  In  my  

view, the above fact is not very relevant at this  

stage,  and  may  be  of  some  consequence  if  the  

provisions  of  Article  100  of  UNCLOS,  1982,  are  

invoked.

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

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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.

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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, 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

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‘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

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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

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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

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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 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

Page 114

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

Page 115

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

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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 non-living, 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

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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.

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

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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

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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

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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

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way of such reconsideration, if such an application  

is made.  

103. The  Special  Leave  Petition  and  the  Writ  

Petition,  along  with  all  connected  applications,  

are disposed of in the aforesaid terms.  

…………………………………………………CJI.    (ALTAMAS KABIR)

New Delhi Dated:January 18, 2013.

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122

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 135 OF 2012

Republic of Italy thro’ Ambassador & Ors. …. Petitioners

 Versus

Union of India & Ors. ….Respondents

WITH SPECIAL LEAVE PETITION (C) No. 20370/2012

Massimilano Latorre & Ors. ……. Petitioners

Versus

Union of India & Ors. ……  Respondents

J U D G M E N T

Chelameswar, J.

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123

1. I agree with the conclusions recorded in the Judgment  

of the Hon'ble Chief Justice.  But, I wish to supplement the  

following.

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 971 of the  United  1 Article 97. Penal jurisdiction in matters of collision or any other incident of navigation  

1. In the event of a collision or any other incident of navigation concerning a ship on   

the high seas, involving the penal or disciplinary responsibility of the master or of any other  

person in the service of the ship, no penal or disciplinary proceedings may be instituted against   

such person except before the judicial or administrative authorities either of the flag State or

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124

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  of the State of which such person is a national.  

2.  In  disciplinary  matters,  the  State  which  has  issued a  master's  certificate  or  a  

certificate of  competence or  licence shall  alone be competent after  due legal  process,  to  

pronounce the withdrawal of such certificates, even if the holder is not a national of the State   

which issued them.  

3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered  by any authorities other than those of the flag State.

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125

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;

“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. 2  As early as 1927, Philip C. Jessup, who subsequently became a judge of the International Court of  

Justice, stated that the territorial waters are “as much a part of the territory of a nation as is the land  itself”.  Hans Kelsen declared that “the territorial waters form part of the territory of the littoral State”.   In the  Grisbadarna Case (1909), between Norway and Sweden, the Permanent Court of Arbitration  referred to the territorial waters as “the maritime territory” which is an essential appurtenance of the  adjacent land territory.  In the  Corfu Channel (Merits) case (1949), the International Court of Justice  clearly recognised that, under international law, the territorial sea was the “territory” of the coastal state  over which it enjoyed “exclusive territorial control” and “sovereignty”.  Lord McNair, who subscribed  to the majority view of the Court in the above case, observed in the Anglo-Norwegian Fisheries case:

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126

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.-  

(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.  

To every State whose land territory is at any place washed by the sea,  international  law attaches a   corresponding portion of maritime territory.......  International law does not say to a State: “You are   entitled to claim territorial waters if you want them”.  No maritime State can refuse them.  International   law imposes upon a maritime State certain obligations and confers upon it certain rights arising out of  the sovereignty which it exercises over its maritime territory.  The possession of this territory is not   optional, not dependent upon the will of the State, but compulsory.

Sir Gerald Fitzmaurice, writing before he became a judge of the International Court of Justice, quoted  McNair's observation with approval, and considered that it was also implicit in the decision of the Word  Court in the  Anglo-Norwegian Fisheries case.  It follows, therefore, that the territorial waters are not  only “territory” but also a compulsory appurtenance to the coastal state.  Hence the observation by  L.F.E. Goldie that “it has long been accepted that territorial waters, their supera=-mbient air, their sea- bed  and  subsoil,  vest  in  the  coastal  State  ipso  jure (i.e.,  without  any  proclamation  or  effective  occupation being necessary)”.  ----from  The New Law of Maritime Zones by P.C.Rao (Page 22)

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(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 waters3.  

3  The territorial sea appertains to the territorial sovereignty of the coastal state and thus belongs to it   automatically.  For example, all newly independent states (with a coast) come to independence with an   entitlement to a territorial sea.  There have been a number of theories as to the precise legal character of  the  territorial  sea  of  the  coastal  state,  ranging  from  treating  the  territorial  sea  as  part  of  the  res   communis, but subject to certain rights exercisable by the coastal state, to regarding the territorial sea as   part  of  the  coastal  state's  territorial  domain  subject  to  a  right  of  innocent  passage  by  foreign  vessels................

Articles  1  and  2  of  the  Convention  on  the  Territorial  Sea,  1958  provide  that  the  coastal  state's  sovereignty extends over  its  territorial  sea  and  to  the  airspace  and  seabed  and the subsoil  thereof,  subject to the provisions of the Convention and of international law........ ---  from International Law  by Malcolm N. Shaw [sixth edition](page 569 - 570)

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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 Law4 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  

4  It is well established that the coastal state has sovereignty over its territorial waters, the sea-bed and   subsoil underlying such waters, and the air space above them, subject to the obligations imposed by   international law.  Recently, in the North Sea Continental Shelf cases, the International Court of Justice  declared that a coastal state has “full sovereignty” over its territorial sea.  This principle of customary  international law has also been enshrined in article 1 of the Geneva Convention, and remains unaffected  in the draft convention. ----from  The New Law of Maritime Zones by P.C.Rao (Page 22)

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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

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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 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.”

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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:

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“  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:

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                           “Section  5(1):  The    

contiguous zone of India (hereinafter  

referred to as the contiguous zone)  

is and 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  India5 under  Sections  3(3),  

5(2)  and  7(2)  respectively  to  alter  the  limits  of  territorial  

5   .......... Central Government may whenever it considers necessary so to do having regard to the  International Law and State practice alter by notification in the Official Gazette the limit of .........”

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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  6  Section  6(3)(a) :  sovereign  rights  for  the  purpose  of  exploration,  exploitation,  conservation  and  

management of all resources. 7  ....... the jurisdiction of the coastal state has been extended into areas of high seas contiguous to the  

territorial sea, albeit for defined purposes only.  Such restricted jurisdiction zones have been established  or asserted for a number of reasons..................

...........without having to extend the boundaries of its territorial sea further into the high seas.........

...........such contiguous zones were clearly differentiated from claims to full sovereignty as parts of the  territorial sea, by being referred to as part of the high seas over which the coastal state may exercise   particular rights.  Unlike the territorial sea, which is automatically attached to the land territory of the  state........ --- from International Law by Malcolm N. Shaw [sixth edition](page 578 - 579)  

8 Section 5(5)(a) : extend with such restrictions and modifications as it thinks fit, any enactment, relating  to any matter referred to in clause (a) or clause (b) of sub-section (4), for the time being in force in India  or any part thereof to the contiguous zone.

9 Section 7(7)(a) : extend, with such restrictions and modifications as it thinks fit, any enactment for the  time being in force in India or any part thereof in the exclusive economic zone or any part thereof.

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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:

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“  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

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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  24510 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  

10  Article 245 : Extent of laws made by Parliament and by the Legislatures of State.-   (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part  of the territory of India, and the Legislature of a State may make laws for the whole or any part of the  State. (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra- territorial operation.

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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.

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  

11  See: Macleod v. Attorney General of New South Wales (1891) AC 455, 451-58 and Huntington  v. Attrill (1893) AC 150.

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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 country13.   As a  

necessary  concomitant,  this  country  ought  to  have  the  

12   P C Rao – “Indian Constitution and International Law”, page 42 13  See  AIR 1955 SC 367 = Hans Muller of Nuremberg v. Superintendent, Presidency Jail Calcutta para  

34.    also (2002) 2 SCC 465 = Chairman, Railway Board & Others -vs- Mrs.Chandrima Das and Others  paras 28 to 32

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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 Code14 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 citizen15.  Such a declaration was  

made as long back as in 1898.  By an amendment in 2009 to  14  Section.2:  Punishment  of  offences  committed  within  India.-  Every  person  shall  be  liable  to  

punishment under this Code and not otherwise for every act  or omission contrary to the provisions  thereof, of which he shall be guilty within India.

Section.4 : Extension of Code to extra-territorial offences.- The provisions of this Code apply also to  any offence committed by - (1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be;

(3) any person in any place without and beyond India committing offence targeting a  computer  resource located in India.

15  Mobarik Ali Ahmed v. State of Bombay (AIR 1957 SC 857, 870) “on a  plain  reading  of  section  2  of  the  Penal  Code,  the Code does  apply  to  a  foreigner  who has  committed an offence within India notwithstanding that he was corporeally present outside”.

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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:

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“  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).”

(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:

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“  (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):

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“  (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 316 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  

16  3. Hijacking.- (1) whoever on board an aircraft in flight, unlawfully, by force or threat of force or by  an  other  form of  intimidation,  seizes  or  exercises  control  of  that  aircraft,  commits  the  offence  of   hijacking of such aircraft. (2) Whoever attempts to commit any of the acts referred to in sub-section(1) in relation to any aircraft,   or  abets  the  commission of  any such act,  shall  also be deemed to have  committed the  offence  of  hijacking of such aircraft. (3) For the purposes of this section, an aircraft shall be deemed to be in flight at any time from the   moment when all its external doors are closed following embarkation until the moment when any such  door is opened for disembarkation, and in the case of a forced landing, the flight shall be deemed to   continue until the competent authorities of the country in which such forced landing takes place take  over the responsibility for the aircraft and for persons and property on board.

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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

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188  of  the  Code  of  Criminal  Procedure17 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  17  Section 188. Offence committed outside India.

When an offence is committed outside India-

(a)  By  a  citizen  of  India,  whether  on  the  high  seas  or  

elsewhere; or

(b)  By  a  person,  not  being  such  citizen,  on  any  ship  or  

aircraft registered in India.

   He may be dealt with in respect of such offence as if it  

had been committed at any place within India at which he may be  

found:

   Provided that, notwithstanding anything in any of the  

preceding  sections  of  this  Chapter,  no  such  offence  shall  be  

inquired into or tried in India except with the previous sanction of  

the Central Government.

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pool  promoters  in  England  falsely  claiming  that  he  had  

correctly  forecast  the results  of  football  matches and 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)

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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

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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;

“……., 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……….”

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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

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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 eco- nomic zone, in the territorial sea or in the internal  waters of a State, or in the archipelagic waters of

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an archipelagic State. This article does not entail  any abridgement of the freedoms enjoyed by all  States  in  the  exclusive  economic  zone in accor- dance 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 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

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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

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context  of  the  incident  in  question.   For  that  reason,  the  

second submission of Shri Salve should also fail.

…………………………………….J. ( J. CHELAMESWAR )

New Delhi; January 18, 2013.

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“OUT TODAY” ITEM NO.IA               COURT NO.1             SECTION X [FOR JUDGMENT]

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                   WRIT PETITION (CIVIL) NO(s). 135 OF 2012

REPUBLIC OF ITALY THR. AMBASSADOR & ORS.          Petitioner(s)

                VERSUS

UNION OF INDIA & ORS.                             Respondent(s)   WITH   SLP(C) NO. 20370 of 2012   

Date: 18/01/2013  These Petitions were called on for JUDGMENT today.

For Petitioner(s) Mr. Harish N.Salve, Sr. Adv.  Mr. Sohail Dutt, Sr. Adv.  Mr. Diljit Titus, Adv.  

                    Mr. Jagjit Singh Chhabra, AOR  Mr. Jayesh Gaurav, Adv.  Mr. Vibhav Sharma, Adv.  

 For Respondent(s) Ms. Indira Jai Sing, ASG.                      Mr. D.S. Mahra, AOR  

                    Mr. B. Krishna Prasad, AOR  

Mr. V.Giri, Sr. Adv.                       Mr. Ramesh Babu M.R., AOR  

 Hon'ble  the  Chief  Justice  and  Hon'ble  Mr.  Justice  J. Chelameswar pronounced their separate  but concurring judgments   of the Bench comprised  of Their Lordships.   Pursuant to the decision rendered by us in Writ  

Petition(C)No.135 of 2012 and SLP(C) NO. 20370 of

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2012,  certain  consequential  directions  are  

required to be made, since the petitioner Nos.2  

and 3 had been granted bail by the Kerala High  

Court.

Since we have held that the State of Kerala as a  

Unit  of  the  Federal  Union  does  not  have  

jurisdiction to try  the matter, we are of the  

view that till such time as the Special Court is  

constituted in terms of our judgments, the said  

petitioners  should  be  removed  to  Delhi  and  be  

kept on the same terms and conditions of bail, as  

was granted by the High Court, except for the  

following changes:-

1. The  orders  passed  by  the  

Kerala High Court restricting the  

movement of the said petitioners  

is lifted, but the same conditions  

will stand reinstated, as and when  

the said petitioners come to Delhi  

and  they  shall  not  leave  the  

precints  of  Delhi  without  the  

leave of the Court.

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2. Instead  of  reporting  to  the  

Police  Station  at  City  

Commissioner at Kochi, they will  

now  report to  the Station  House  

Officer  of  the  Chanakaya  Puri  

Police Station, New Delhi, once a  

week,  subject  to  further  

relaxation, as may be granted.  

3. Once the said petitioners have  

moved  to Delhi,  they shall  upon  

the request of Italian Embassy in  

Delhi, remain under their control.  

The  Italian  Embassy,  in  Delhi,  

also agrees to be responsible for  

the movements of the petitioners  

and to ensure that they report  to  

the  trial  court,  as  and  when  

called upon to do so.     

4. Since their passports had been  

surrendered to the trial court in  

Kollam,  the  same  is  to  be  

transferred by the said court to  

the  Home  Ministry,  immediately

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upon  receipt  of  a  copy  of  this  

judgment”.  

Let  copies  of  these  judgments/Orders  be  made  

available  to  the  learned  advocates  of  the  

respective parties and also to a representative  

of the petitioner No.1.   In addition, let copies  

of these Judgments be also sent to the High Court  

of Kerala, as also the trial court at Kollam, who  

are to act on the basis thereof immediately on  

receipt of the same.

Till such time as the Special Court is set up,  

the petitioner Nos. 2 and 3 will be under the  

custody of this Court.

Let  copies  of  these  Judgments/Orders  be  

communicated  to  the  Kerala  High  Court  and  the  

court of the Magistrate at Kollam and also to the  

City Police Commissioner, Kochi and D.C.P.Kochi  

Airport,  by  E-mail,  at  the  cost  of  the  

petitioners.   

 The  Writ  Petition  and  the  Special  Leave  Petition, along with all connected applications,  are  disposed  of  in  terms  of  the  signed  judgments.  

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 (Sheetal Dhingra)     (Juginder Kaur)     Court Master        Assistant Registrar

   [Signed Reportable Judgments are placed on the file]