The developing story of the Italian marines requires reiteration of a fundamental tenet of our jurisprudence – decisions of the Supreme Court of India have always been recognized as the final word on all disputes adjudicated by them. Judgments of the Supreme Court are the law in our Republic and, at a minimum, binding on all parties before it. The Constitution gives the Supreme Court powers to pass any orders for the enforcement of its decrees and this includes the power to secure the attendance of any person before it or to punish any contempt of itself. All authorities, civil and judicial, are obligated to act in aid of the Supreme Court and once the gavel has been brought down, nothing short of strict compliance of judicial pronouncements is expected. It is important to highlight that asides from penal and other consequences, any judgment, decree or order obtained by fraud or through known misrepresentation will be struck down as a nullity. As a legal practitioner one has no hesitation in saying that whether a case is won or lost, the Court’s decision and its finality is above all else. Such is the stature of the judiciary in our democracy that, notwithstanding freedom of speech, asides from a pure academic or legal analysis even critiquing Court verdicts in a manner that challenges their finality, is considered an act of impropriety.
In this background, the Italian government’s statement that its marines, facing prosecution in India for the death of innocent fisherman, will not return upon the expiration of the time period granted by the Apex Court to them is a blatant contempt of court. It is also a breach of the undertaking given by the Italian Ambassador in India who had, in an affidavit submitted to the Supreme Court, sworn that he takes full responsibility for the marines and undertaken that he will ensure their return to India in keeping with the orders of the Supreme Court. It’s reported that, the marines could potentially have voted through postal ballots and if true, the Italian Ambassador may well be guilty of perjury, fraud, misrepresentation and breach of trust. All of these are serious charges and the question emerging is whether the Ambassador can now claim diplomatic immunity?
This matter requires serious consideration as the majesty of our Courts and the rule of law hinges on the answer. Once the Republic of Italy acceded to the writ jurisdiction of the Court, it has potentially given up the diplomatic immunity otherwise available. Support for this argument is found in The Diplomatic Relations (Vienna Convention) Act of 1972 passed to give effect to the Convention. The Schedule to this Act in Article 32 states that the initiation of proceedings by a diplomatic agent precludes him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim. The Act notes in Article 5 that the waiver under Article 32 by the head of the mission shall be deemed as a waiver by that country. It’s must be clarified that, the need for a second express waiver, as stipulated in Article 32(4), for the execution of judgments does not come in the way, as some have tried to suggest, since courts don’t treat contempt proceedings as execution proceedings. Therefore, arguably 32(4) has no applicability. The Act, in keeping with the Vienna Convention also gives the Indian government powers to withdraw the privileges and immunities conferred on the diplomatic mission of a country, including its serving diplomats, if it believes that such country is in breach of its obligations under the Convention. Of course, any such withdrawal will lead to retaliatory action and will have a diplomatic fall-out. But to maintain the dignity of its Apex Court, India should be prepared against all such consequences.
Expelling the Italian Ambassador or declaring him persona-non-grata is perhaps part of the Italian plot. But from an Indian standpoint it’s completely unadvisable. The Supreme Court’s order restraining the Italian Ambassador from leaving India, directing him to file an affidavit explaining his position and expecting compliance with its order are notable developments. The Court is rightly peeved and expressed its annoyance when it stated that the Italian Ambassador has lost their trust. The Court noted that the Marines have till the 22nd to return and while one hopes for better sense to prevail, but if on the next date there is indeed a breach of the solemn promise, then the Supreme Court will itself decide on how it wishes to seek compliance of its orders.
If the marines, acting on ill advice, in fact don’t return to India then, asides from India taking up the matter with the European Union, of which Italy is a member state, it must also take steps to declare the two marines as proclaimed offenders and request Interpol to issue look-out notices for them. None of this may yield results, but if Italy continues to protect these absconding marines then asides from India, it will also be answerable to the international community and risks losing whatever residual credibility it has.
Just to highlight, Italy may have a legitimate claim of the dispute being covered under the UN Law of the Sea or that the matter should be submitted to mediation or international arbitration. Notably, Italy pleaded all of these before the Supreme Court and the Apex Court concluded that all matter concerning the marines, including India’s jurisdiction on the dispute will have to be decided by a special court in India. Therefore, as we stand today, the issue is not about India’s jurisdiction but how a commitment made at the highest levels in Rome to the Indian Supreme Court is reneged! Let’s not lose perspective that the accused here is not the head of state or some minister, but two naval officers. And what is baffling is that even if the marines were eventually convicted in India, they could serve their term in Italy given the recent agreement between India and Italy allowing the repatriation of its nationals lodged in the other country’s jail. Then, why this volte-face?
To sum-up, the case of the Italian marines is first a legal matter and then a diplomatic one. This is therefore as much a test of our judiciary as our foreign office. Nothing short of absolute compliance with the Court’s orders and the sovereign undertaking will be acceptable. India’s response may indeed have many repercussions, but it’s imperative for India to use this opportunity to sound alert to all those with whom it has political, diplomatic or commercial dealings that India will not tolerate any disrespect or dishonor of its Supreme Court. A message must be delivered that in India the rule of law is sacrosanct and the Courts, and Government, will go to whatever extent to ensure compliance with its orders and directives. With the matter now listed for hearing on April 2nd, the government must act swiftly and constitute the special court. If it does so, it establishes greater credibility with the international community. Thus, while the world’s eyes may be gazing at Rome, to get a glimpse of the new Pope, a greater number may well be fixed on India to see her response to Rome’s breach of its solemn commitment. It’s time the world noted that, despite our domestic political compulsions, India is not a soft state and will do whatever required to uphold the dignity of its democratic institutions.
Satvik Varma is an advocate based in New Delhi. A graduate of Harvard Law School, he is also admitted to practice in the State of New York and is currently an Aspen India Leadership Fellow.