REPUBLIC OF ITALY AND ORS. VS. UNION OF INDIA (UOI) AND ORS. 2006/INSC/42:

DATE: 18.01.2013

COURT: Supreme Court of India

BENCH: Chief Justice Altamas Kabir and Justice J. Chelameswar

FACTS:

The dispute originated from a tragic maritime incident that occurred on 15 February 2012, when the Italian-flagged oil tanker M.V. Enrica Lexie, carrying an Italian Navy Vessel Protection Detachment deployed to guard against piracy, encountered the Indian fishing boat St. Antony approximately 20.5 nautical miles off the Kerala coast. Mistaking the fishing vessel for a pirate craft, two Italian marines aboard the tanker opened fire, resulting in the deaths of two Indian fishermen. The tanker initially continued its voyage towards Djibouti but, after receiving communications from the Maritime Rescue Coordination Centre, Mumbai, directing it to assist in the investigation, it altered course and docked at Cochin Port on 16 February 2012. Upon its arrival, the Kerala Police registered a First Information Report for offences including murder under the Indian Penal Code, and subsequently arrested the two marines, Massimiliano Latorre and Salvatore Girone, placing them in judicial custody.

The Republic of Italy thereafter challenged the legality of the criminal proceedings initiated by the State of Kerala, maintaining that the incident had occurred outside India's territorial waters and that the marines, being members of the Italian armed forces engaged in official anti-piracy duties, enjoyed sovereign functional immunity from Indian criminal jurisdiction. Italy further contended that, under international law and the United Nations Convention on the Law of the Sea (UNCLOS), only Italy, as the flag State of the vessel and the marines' home State, possessed the authority to prosecute them. As the Kerala High Court declined to accept these contentions and the investigation continued, the Republic of Italy, along with the two marines, invoked the writ jurisdiction of the Supreme Court under Article 32 of the Constitution, seeking a declaration that the proceedings before the Kerala authorities were without jurisdiction and unconstitutional.

ISSUES:

The principal issues before the Court were whether the State of Kerala had jurisdiction to investigate and try the two Italian marines for the killing of Indian fishermen that occurred approximately 20.5 nautical miles off the Kerala coast (within India’s contiguous zone/EEZ); whether the Union of India alone possessed such jurisdiction under the Maritime Zones Act, 1976 and UNCLOS; whether the Italian marines were entitled to functional or sovereign immunity; and the interplay between domestic criminal law and relevant provisions of UNCLOS (particularly Articles 97 and 100).

JUDGEMENT WITH REASONING:

The Supreme Court held that the State of Kerala had no jurisdiction to investigate or try the incident. It ruled that the Union of India alone was entitled to exercise jurisdiction over the two Italian marines under Indian criminal law, subject to the possible application of Article 100 of UNCLOS upon evidence. The Court directed the Union of India, in consultation with the Chief Justice of India, to constitute a Special Court to try the case in accordance with the Maritime Zones Act, 1976, the Indian Penal Code, the Code of Criminal Procedure, and UNCLOS (where consistent with domestic law), and transferred the pending Kerala proceedings to that Special Court.

The Court examined the location of the incident, 20.5 nautical miles from the baseline and held that it fell within India’s contiguous zone (and EEZ) but outside the territorial waters. Under both the Maritime Zones Act, 1976 and UNCLOS, India exercises sovereign rights and limited jurisdiction in these zones, including the power to apply its penal laws. However, the extension of the IPC and CrPC to the contiguous zone/EEZ by the Union does not confer investigatory or prosecutorial powers on individual coastal States such as Kerala, whose police authority is confined to territorial waters. Consequently, only the Union of India could take cognizance, investigate, and prosecute the alleged offences. The Court further held that Article 97 of UNCLOS (penal jurisdiction in cases of collision or “incident of navigation”) did not apply, as the episode involved a homicide rather than a navigational collision, and that any claim under Article 100 (cooperation in repression of piracy) would have to be established by evidence before the trial court.

On the question of immunity, the Court rejected the claim of functional or sovereign immunity at the jurisdictional stage. It observed that the marines, though members of the Italian armed forces deployed for vessel protection, were performing duties on a commercial vessel and that the nature of the acts (firing resulting in death) required evidentiary determination rather than an automatic bar to Indian jurisdiction. The judgment carefully balanced India’s domestic legislative framework with its international obligations under UNCLOS, affirming concurrent or residual jurisdiction of the Union while leaving open the possibility of reconsideration once evidence on the applicability of specific UNCLOS provisions was adduced. The direction to constitute a Special Court was intended to ensure a fair, expeditious trial at the federal level consistent with the federal character of the dispute involving two sovereign States.

ANALYSIS:

The decision in Republic of Italy v. Union of India represents a significant exposition of the distribution of criminal jurisdiction between the Union and the States in matters involving offences committed beyond India's territorial waters. The Supreme Court reaffirmed that while India possesses jurisdiction over its contiguous zone and Exclusive Economic Zone through the combined operation of the Maritime Zones Act, 1976 and notifications extending the Indian Penal Code and the Code of Criminal Procedure, such jurisdiction is vested in the Union and not in individual coastal States. By holding that the State of Kerala lacked prosecutorial authority despite the victims being Indian fishermen from Kerala, the Court reinforced the constitutional division of powers in matters involving maritime sovereignty, foreign relations, and international obligations. The judgment also clarified the limited scope of Article 97 of UNCLOS by holding that it applies only to navigational incidents and not to intentional acts resulting in homicide, thereby preventing an expansive interpretation that could have unduly restricted India's criminal jurisdiction over serious offences committed in its maritime zones.

The judgment further demonstrates the Court's effort to harmonize domestic law with international law without permitting treaty obligations to override India's statutory framework. Rather than accepting Italy's plea of sovereign or functional immunity at the threshold, the Court treated such immunity as a matter requiring factual determination during trial, thereby ensuring that international law did not become an automatic shield against accountability for grave criminal acts. Simultaneously, the Court acknowledged India's obligations under UNCLOS by directing that the Special Court consider the Convention wherever consistent with domestic law. The creation of a Special Court under the supervision of the Union also reflected judicial sensitivity to the diplomatic implications of a dispute involving a foreign sovereign State while preserving the rule of law and ensuring an impartial federal mechanism for adjudication. Consequently, the decision stands as an important precedent on maritime jurisdiction, the relationship between municipal and international law, and the constitutional allocation of executive and criminal authority in transnational offences.