Case Comment

M. V. Enrica Lexie Case: Encyclopedic Dissection of the Preamble

Petitioners: Republic of Italy & Ors.

V.

Respondents: Union of India & Ors.

 INTRODUCTION

Let sovereignty be granted us over a portion of the earth's surface large enough to satisfy our
rightful requirements as a nation. The rest we shall manage for ourselves.

- Theodor Herzi

The very concept of a state as a legitimate political and legal setup is enshrined in the untainted
and veridical slant of its right to govern its whereabouts and those associated with it; in short its
territorial sovereignty. The state in its turn lies upon the foundation of sovereignty, which
expresses internally the supremacy of the governmental institutions and externally the supremacy
of the state as a legal person. The principle of respect for the territorial integrity of states is well
founded as one of the linchpins of the international system, as is the norm prohibiting
interference in the internal affairs of other states.1The vitality of India as a Sovereign,
circumscribed in the Preamble of the Indian Constitution2 has been put through the wringer more
in the legal prospective than the political time and over. The current litigation at disposal
embraces substantially multifarious interpretations of state sovereignty and associated
jurisdictional competency of the Republic of India. The paradoxical positions captivated by
domestic legislations and international obligations put the apex court of the realm in jeopardy
with regard to the constitutional validity of the criminal prosecution of two Italian Marines;
Massimilano Lattore and Salvatore Gironne. The mirage of an unabridged ideal and apropos law
was tattered into trinklets in this very instance. The whole hierarchy of Indian Courts gave this
intruder a shot on issues pertaining to-

a) Whether Indian Courts have territorial jurisdiction to try the alleged perpetrators under
the provisions of the Indian Penal Code, 1860?
b) Whether Articles 14 and 21 of the Indian Constitution extend to Foreign Nationals facing
criminal prosecution in the Republic of India?
c) Whether federal units in a sovereign structure have the jurisdiction to try disputes
pertaining to two sovereign bodies?

1
6 MALCOM AND SHAW, INTERNATIONAL LAW (6d-2008), Pg No. 488.
2
Constitution (Forty-Second Amendment) Act, 1976, S.2.
 THE TRANSFORMATION: FROM KEEPERS TO REAPERS

The audacity of Jack Sparrow in Pirates of Caribbean undoubtedly made him a heartthrob over
generations of viewers; however not every tale has a star cast, nor every ending a silver lining in
the box office earnings. Little did the 2 out of the 11 fishermen on board the boat St. Antony
knew the voyage they dreamed of was nothing more than a glass house in a battlefield. February
12, 2012 as Kurbanguly Berdymukhamedov was all set to take over the Presidency of
Turkmenistan, a commercial vessel named M.V. Enrica Lexie was also on course to displace
the near silent waves in the Indian Judicial system. A on the docket maneuver, rescheduled the
course of the ship from its erstwhile destination Muscat to Djibouti. As aerated in various leading
researches the passage so chosen was under high risk of pirate insurgency. In the act of obviating
any unnecessary contact with the same, the ship kept close to the Indian territorial waters.

In what turned out to be a complete chaos of the earlier articulated, the marines
on board Enrica Lexie, open fired on the boat St. Antony on an unchartered presumption of it
being a pirate ship at proximity of less than 100 meters from their home in the sea. The cinematic
circumstance unfolded at a distance of about 20.5 Nautical miles from the coast of Kerala.
Charges under Section 302 read with Section 34 of Indian Penal Code were filed against the
marines and the ship was instructed to dock at the Cochin port for further investigation. The
judicial contention on the case, being the applicability of territorial sovereignty to waters beyond
the specified 12 Nautical miles as per the United Nations Convention on Laws of Seas, 1982.
Furthermore, eminent luminaries have challenged the authority of the State of Kerala in its
approach to detain and try the foreign sovereigns without express instructions from competent
authority.
 SUING THE MARINES: THE LEGAL CARNAGE THAT SUPERSEDED

A) Territorial Jurisdiction

Territorial sovereignty is defined in terms of enabling a country to possess de jure and de facto
jurisdiction of any person that sets foot in the assigned territory of that state; subject to
restrictions as per standing obligations under treaties. The current scenario dwells on the
determination of the applicable law at the distance of 20.5 Nautical miles from the Indian Coast.
The regulatory international convention that both the parties to the suit have signed and ratified
codifies the territorial limit of a state as 12 Nautical miles and hence though does not explicitly
deny, limits the jurisdiction to the said threshold.

The petitioners claimed the contention of the incident inspiring extraneous to the jurisdictional
capacity of the Republic of India; i.e. 20.5 Nautical miles. The counter claims on the same where
raised as per the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed
Platform on Continental Shelf Act, 2002 and the Maritime Zones Act, 1976, which underlined
the applicability of the IPC in Contiguous Zones as well as Exclusive Economic Zones as well.

An established principle of public international law, as enshrined in the charter of the United
Nations is the supremacy of the Constitution and associated laws over any international
obligations the country may have availed to; hence the jurisdictional claim was ruled in favour of
the defendants.

B) Constitutional Rights to Foreign Nationals

The makers of the Indian Constitution were diligent in determining the comprehensiveness of the
rights offered to any human who sets foot in Indian soil or per se waters in this particular
instance3. Article 14 (equality before law) and Article 21 (protection of life and personal liberty)
have been long drawn in the approved list of laws applicable to foreign nationals as well. In this

3
See Neha Mishra, Are foreign nationals entitled to the same Constitutional Rights as the citizens of India?,
International Journal of Law and Legal Jurisprudence Studies: ISSN:2348-8212 (Volume 1 issue 6).
matter, the principles and guidelines laid down in the Universal Declaration of human rights is
followed in the true spirit of law. Hence the court owing to the jurisprudential principles of
natural justice allowed the claim under the aforementioned articles and aerated significant incite
on the issue.

C) Jurisdiction of Federal Units

The initial proceedings of the court took place under the jurisdictional capabilities of the state of
Kerala, where after rounds of deliberations the Kerala High Court reserved its judgement for a
substantial period after ruling in favour of the state; claiming contagious zones to be under its
jurisdiction and further articulated that the principles of sovereign immunity on grounds of
official duty did not apply to the marines.
In the subsequent writ petition filed in the Supreme Court of India, the counsel on behalf of the
petitioners claimed that owing to International Legal Responsibility, federal units did not have
jurisdiction in the matters of international disputes. Such cases fall in the ambit of one sovereign
power against another and the only resolving agencies shall be the apex judicial authority of any
of the party/ representative of the sovereign itself or an international tribunal with competing
mandate. The court ruled in favour of the petitioners on this point ruling out the judgement by
Kerala High Court.
 CONCLUDING REMARKS

Post the S.S. Lotus case the international community has been in the dilemma in context to the
jurisdiction over international perpetuators and the reach of diplomatic immunity. The birth of
international conventions with regard to the same has no doubt increased transparency in the set
legal principles but the ambiguity still remains unattained. The UNCLOS and Vienna
Conventions do limit the scope of the affected country to try foreign nationals, undermining the
basic principle of customary international law that imparts jurisdiction over any being in ones
sovereign land unless stated otherwise in any agreement.

The Constitution of India and its deep commitment to profess the nation as a sovereign is a
guiding force for the guardians of judiciary in this country. For claims of likewise atrocities
cannot be dealt with lightly, stringent remedial measures need to be instituted. The UN charter
explicitly states that the constitution of any nation is above the Charter owing to this principle,
any contravention and counter claims to the constitutional demarcation of territorial sovereign
shall entice nullity before law.

The decision of the Supreme Court of India in Republic of Italy v Union of India illustrates the
legal and diplomatic complexities that can arise when nations, and states within those nations,
have competing claims to jurisdiction over the prosecution of criminal offences. In our
increasingly interconnected world, competing claims to jurisdiction are more likely4

The famous quote by Alexander Pope rightly summarizes the scenario, For forms of
government let fools contest whatever is best administered is the best, the sole purpose of legal
systems is to impart justice, the efficiency of Indian, Italian or per se International courts was
never the question.

4
Daniel Ireland Piper, The Enrica Lexie and St Antony: A Voyage Into Jurisdictional Conflict, QUT Law Review
Volume 14, Number 2, 2014, Pg No. 74.