After a series of flip-flops, the Centre Monday told the Supreme Court that the two Italian marines accused of killing two Indian fishermen off the coast of Kerala would not be tried under the stringent anti-piracy law that would have seen them being sentenced to death.
However, Italy responded to this concession by forcefully arguing that the government’s decision had rendered “illegal” the entire probe conducted so far.
The court will now decide whether it can ratify the probe so far by the National Investigating Agency (NIA) or a fresh probe, as sought by Italy, would be called for.
As the hearing began Monday, Attorney General G E Vahanvati said the government had accepted the law minister’s opinion to drop charges under the stringent anti-piracy SUA law against the marines.
“The opinion of the law minister is that SUA will not be attracted in this case. The government has accepted it,” the AG told a bench of Justices B S Chauhan and J Chelameswar.
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But senior advocate Mukul Rohatgi, who appeared for the marines and the Republic of Italy, pointed out that the Ministry of Home Affairs had already sanctioned invoking SUA and that the government’s affidavit did not clearly say it would not be invoked in the chargesheet.
Vahanvati responded that there was no ambiguity on the issue anymore. “The government’s affidavit clearly says that in these circumstances, appropriate steps will be taken to ensure that the chargesheet reflects this opinion,” he said.
However, Rohatgi went on to question the very jurisdiction of the NIA as the investigating agency after it had been decided to drop SUA.
“If SUA goes, the entire investigation by the NIA goes. NIA cannot probe the cases under the Indian Penal Code. NIA was brought in only because of SUA. So why should we go to trial like this?” he argued.
Rohatgi contended that after a decision to drop the charges, NIA’s investigation had no sanction of law and the marines could not be sent to trial on the basis of a legally flawed probe.
Vahanvati, however, countered the submission, saying the previous SC order wanted a “neutral” agency to investigate the case and hence NIA was roped in. He said that NIA’s investigation could now be ratified by a court order.
Rohatgi opposed this and asked the bench to decide the issue after hearing both parties. The court has now listed the matter after three weeks, giving time to Italy to file an application to challenge the NIA probe and to the government to respond.
The petition, filed jointly by Italian Ambassador Daniele Mancini and marines Massimiliano Latorre and Salvatore Girone, has sought direction to the Centre to expedite the proceedings in the case or discharge the marines. They also challenged invoking of SUA, saying it was against the SC order that allowed proceedings only under the Maritime Zone Act, IPC, CrPC and UNCLOS.
Later in the day, Ministry of External Affairs’ official spokesperson Syed Akbaruddin said: “This is not a bilateral issue between India and Italy. It is a legal issue about ensuring that those who are charged with the death of Indian nationals are held to account for it in accordance with Indian law.”