Chelameswar, J.
Page 122 123
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 971 of the United
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 Page 123 124 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 of the State of which such person is a national.
2. In disciplinary matters, the State which has issued a master's 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.
Page 124 125 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.
(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.
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:
Page 125 126
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.
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) Page 126 127
(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 waters3.
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) Page 127 128
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 Law4 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
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) Page 128 129
B.K.Wadeyar v. M/s. Daulatram Rameshwarlal (AIR 1961 SC 311) held at para 8 as follows:
“......... 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 Page 129 130 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.”
Page 130 131 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:
Page 131 132 “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:
Page 132 133 “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 continental shelf, whereas Section 7 defines the exclusive economic zone. While the Parliament authorizes the Government of India5 under Sections 3(3), 5(2) and 7(2) respectively to alter the limits of territorial
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 ”
Page 133 134 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.”
Page 134 135
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
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
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.
9 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.
Page 135 136 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:
Page 136 137 “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 Page 137 138 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 24510 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 fetter on the jurisdiction of the Municipal Courts including Constitutional Courts to either declare a law to be
10 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.
Page 138 139 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
11 See: Macleod v. Attorney General of New South Wales (1891) AC 455, 451-58 and Huntington
v. Attrill (1893) AC 150.
Page 139 140 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 country13. As a necessary concomitant, this country ought to have the
12 P C Rao – “Indian Constitution and International Law”, page 42
13 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 Page 140 141 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 Code14 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 citizen15. Such a declaration was made as long back as in 1898. By an amendment in 2009 to
14 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 it may be;
(3) any person in any place without and beyond India committing offence targeting a computer resource located in India.
15 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”.
Page 141 142 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:
Page 142 143 “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:
Page 143 144 “(1) Whoever unlawfully and intentionally-
(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):
Page 144 145 “(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 316 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
16 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.
Page 145 146 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 Page 146 147 188 of the Code of Criminal Procedure17 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
17 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.
Page 147 148 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 presence of the accused within the jurisdiction was not an essential element of offences committed in England.”
(emphasis supplied) Page 148 149
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 Page 149 150 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 ”
Page 150 151
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 Page 151 152 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.
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 eco- nomic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of Page 152 153 an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accor- dance 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 Page 153 154 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 Page 154 155 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.
Page 155 156 “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 Page 156 157 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 to Delhi and they shall not leave the precints of Delhi without the leave of the Court.
Page 157 158
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 Page 158 159 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.
Page 159 160 (Sheetal Dhingra) (Juginder Kaur) Court Master Assistant Registrar [Signed Reportable Judgments are placed on the file] Page 160