Krishnadas
Rajagopal : New Delhi ,
Tue May 08 2012, 00:34 hrs
Italy contends
in its petition filed under Article 32 of the Indian Constitution that the
incident occurred outside Indian territorial waters and the Indian courts have
no jurisdiction. The Union government strongly objects to the Republic of Italy ’s
stand in the SC. It submitted that the action of the State of Kerala and its authorities against the
marines is “fully authorised under Indian law including the Constitution of
India”. It argues that since it is an admitted position that the bullets fired
by the marines hit the fishermen while they were on board a vessel registered
in India, part of the offence took place on a ship registered in India, thus,
legally justifying the exercise of Indian law.
For the first time since two Indian fishermen
were allegedly shot dead by two Italian marines on board Italian ship Enrica
Lexie off the Kerala coast, the Union government confirmed that the Indian
Penal Code does apply to the foreign accused.
“There can be no dispute in the present
case that the offence was committed within the distance of 200 nautical miles
from the baseline,” a counter affidavit filed by the Centre in the Supreme
Court said. This clarifies the Union government’s position that it will fight
tooth and nail Italy ’s
claim for sovereign immunity before the SC.
The case is listed to come up for hearing
before a Bench led by Justice Altamas Kabir on May 8.
Supporting Kerala’s action against the
marines, the affidavit said that administration of criminal law and the police
vests in the state governments. It said the actions of the State of Kerala are acts of the Republic of India
itself.
It said the marines cannot claim their act to
be a part of their official functions as the “Republic of Italy
has itself initiated criminal proceedings against petitioner No 2 and 3 for the
offence of murder under Italian law”.
The two accused marines were arrested shortly
after incident occurred in the night of February 15.
The Union accuses Italy of approaching the SC without
“clean hands”. It points to how Italy
did not disclose to the SC that an agreement was struck with the victims’
families in Kerala in Admiralty suits filed there. Another Bench of the SC,
hearing a separate petition for release of Lexie, had termed the agreement as
“making a play of Indian laws” by Italy . The affidavit also called
the out-of-court settlement “unconscionable and unlawful”.
The counter affidavit informs that another
petition “on the same grounds of sovereign immunity and other principles of
public international law as raised in the present petition” has been heard and
is pending judgment before the Kerala High Court.
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