Notizie, Sentenze, Articoli - Avvocato Militare Trapani

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(India): Corte Suprema: Il caso dei Maro': la decisione sulla competenza e l'ist...
(India): Corte Suprema: Il caso dei Maro': la decisione sulla competenza e l'istituzione di un tribunale speciale.
(India): Corte Suprema: Il caso dei Maro': la decisione sulla competenza e l'istituzione di un tribunale speciale.

"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 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 CONSULTA ONLINE
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 to Delhi and they shall not leave the precints of 
Delhi without the leave of the Court. 
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 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. 
 
 
 
 
 
 
 (Sheetal Dhingra) (Juginder Kaur) 
 Court Master Assistant Registrar 
 [Signed Reportable Judgments are placed on the file] 
 REPORTABLE 
 
 
 
 
 
 IN THE SUPREME COURT OF INDIA 
 
 CIVIL ORIGINAL JURISDICTION 
 
 WRIT PETITION (CIVIL)NO.135 OF 2012 
 
 
 
1 Republic of Italy & Ors. ... Petitioners 
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 Vs. 
 
 
 
 2 Union of India & Ors. ... Respondents 
 
 
 
 WITH 
 
 
 SPECIAL LEAVE PETITION (CIVIL) NO.20370 OF 2012 
 
 
1 
 
 
2 Massimilano Latorre & Ors. ... Petitioners 
 
 
 Vs. 
 
 
 
 3 Union of India & Ors. ... Respondents 
 
 
 
 
 
 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 
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 
shifted from Muscat to Djibouti, was also intimated to the concerned 
Attaches. 
 
 
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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, 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. 
 
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 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 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. 
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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 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 
 (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 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, 
challenging the order of dismissal of their Writ Petition by the Kerala 
High Court. 
 
 
 
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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 
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 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 
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 manner 
contrary to Public International Law, as well as the provisions of the 
Constitution of India. 
 
 
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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". 
 
 
 
 
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 
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. 
 
 
 
 
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 CONSULTA ONLINE
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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 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" 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 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. 
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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 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 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. 
 
 
 
 
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, CONSULTA ONLINE
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installations and structures; 
(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 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 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 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 CONSULTA ONLINE
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Exclusive Economic Zone. 
 
 
 
 
29. Referring to the interim report of the Ministry of Shipping, Government 
of India, in respect of the 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 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. 
 
 
 
 
 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 & 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 CONSULTA ONLINE
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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. 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 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. 
 
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 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, but only in 
relation to collisions under Article 97 of the UNCLOS. CONSULTA ONLINE
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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 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 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 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 CONSULTA ONLINE
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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, 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 
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 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 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. CONSULTA ONLINE
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 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. 
 
 
 
 
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 
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 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 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 
 
 CONSULTA ONLINE
16 
 
 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 
 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 
 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 CONSULTA ONLINE
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 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 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. 
 
 
 
 
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? 
 
 
 
 
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 CONSULTA ONLINE
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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 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, 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 
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 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 CONSULTA ONLINE
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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, 
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 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 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 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 CONSULTA ONLINE
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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 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 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 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 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. 
 
 CONSULTA ONLINE
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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 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 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 
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 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 CONSULTA ONLINE
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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. 
 
 
 
 
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 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 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 
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. 
 CONSULTA ONLINE
23 
 
 
 
 
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 [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 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 :- 
 
 
 
 
 "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. 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 CONSULTA ONLINE
24 
 
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, 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 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. 
 
 
 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. 
 
 CONSULTA ONLINE
25 
 
 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 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 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 
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 Police on 19th February, CONSULTA ONLINE
26 
 
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. 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 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 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 CONSULTA ONLINE
27 
 
matter was the claim to a disputed territory in the Rann of Kutch, which 
the Petitioners claimed was a part 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 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 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, 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 CONSULTA ONLINE
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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 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 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 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 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 CONSULTA ONLINE
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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 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. 
 
 
 
 
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. 
 
 
 
 
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 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 CONSULTA ONLINE
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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 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 
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 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 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 CONSULTA ONLINE
31 
 
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). 
 
 
 
 
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. 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 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. 
 
 
 
 
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 CONSULTA ONLINE
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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 '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 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 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 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. 
 
 
 CONSULTA ONLINE
33 
 
 
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 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 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 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 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 CONSULTA ONLINE
34 
 
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 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 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 
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 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) 
 CONSULTA ONLINE
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New Delhi 
Dated:January 18, 2013. 
 
 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. 
 
 
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 97[1] of the United 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 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. CONSULTA ONLINE
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 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]. 
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. 
 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 waters[3]. 
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 Law[4] 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 B.K.Wadeyar v. M/s. Daulatram 
Rameshwarlal (AIR 1961 SC 311) held at para 8 as follows: 
 CONSULTA ONLINE
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 "......... 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 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." 
 
 
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: 
 
 "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: 
 
 "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 CONSULTA ONLINE
38 
 
continental shelf, whereas Section 7 defines the exclusive economic zone. 
While the Parliament authorizes the Government of India[5] under Sections 
3(3), 5(2) and 7(2) respectively to alter the limits of territorial 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." 
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 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: 
 
 "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 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 245[10] 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 CONSULTA ONLINE
39 
 
fetter on the jurisdiction of the Municipal Courts including Constitutional 
Courts to either declare a law to be 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 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 country[13]. As a 
necessary concomitant, this country ought to have the 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 Code[14] 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 citizen[15]. Such a declaration 
was made as long back as in 1898. By an amendment in 2009 to 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: 
 
 "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: 
 
 "(1) Whoever unlawfully and intentionally- CONSULTA ONLINE
40 
 
 
 
 (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): 
 
 "(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 3[16] 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 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 188 of the Code of Criminal Procedure[17] 
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 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 CONSULTA ONLINE
41 
 
 presence of the accused within the jurisdiction was not an 
 essential element of offences committed in England." 
 (emphasis supplied) 
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 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.........." 
 
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 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. CONSULTA ONLINE
42 
 
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 economic zone, in the 
 territorial sea or in the internal waters of a State, or in the 
 archipelagic waters of an archipelagic State. This article does 
 not entail any abridgement of the freedoms enjoyed by all States 
 in the exclusive economic zone in accordance 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 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 
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. 
 
----------------------- 
[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 of the State of which such person is a national. 
 
 2. In disciplinary matters, the State which has issued a master's CONSULTA ONLINE
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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. 
[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: 
 
 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) 
[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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[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) 
[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 ........." 
[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] 
 [9]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. 
[10] 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. 
[11] 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. 
[12] See: Macleod v. Attorney General of New South Wales (1891) AC 455, 
 451-58 and Huntington v. Attrill (1893) AC 150. 
[13] P C Rao - "Indian Constitution and International Law", page 42 
[14] 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 
[15] 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 CONSULTA ONLINE
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 it may be; 
 (3) any person in any place without and beyond India committing 
 offence targeting a computer resource located in India. 
 
[16] 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". 
 
[17] 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. 
[18] 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.
Avv. Antonino Sugamele

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