For the first time since two Indian fishermen were allegedly shot dead by two Italian marines on board Italian ship Enrica Lexie off the Kerala coast,the Union government confirmed that the Indian Penal Code does apply to the foreign accused.
There can be no dispute in the present case that the offence was committed within the distance of 200 nautical miles from the baseline, a counter affidavit filed by the Centre in the Supreme Court said. This clarifies the Union governments position that it will fight tooth and nail Italys claim for sovereign immunity before the SC.
The case is listed to come up for hearing before a Bench led by Justice Altamas Kabir on May 8.
Supporting Keralas action against the marines,the affidavit said that administration of criminal law and the police vests in the state governments. It said the actions of the State of Kerala are acts of the Republic of India itself.
Italy contends in its petition filed under Article 32 of the Indian Constitution that the incident occurred outside Indian territorial waters and the Indian courts have no jurisdiction. The Union government strongly objects to the Republic of Italys stand in the SC. It submitted that the action of the State of Kerala and its authorities against the marines is fully authorised under Indian law including the Constitution of India. It argues that since it is an admitted position that the bullets fired by the marines hit the fishermen while they were on board a vessel registered in India,part of the offence took place on a ship registered in India,thus,legally justifying the exercise of Indian law.
It said the marines cannot claim their act to be a part of their official functions as the Republic of Italy has itself initiated criminal proceedings against petitioner No 2 and 3 for the offence of murder under Italian law.
The two accused marines were arrested shortly after incident occurred in the night of February 15.
The Union accuses Italy of approaching the SC without clean hands. It points to how Italy did not disclose to the SC that an agreement was struck with the victims families in Kerala in Admiralty suits filed there. Another Bench of the SC,hearing a separate petition for release of Lexie,had termed the agreement as making a play of Indian laws by Italy. The affidavit also called the out-of-court settlement unconscionable and unlawful.
The counter affidavit informs that another petition on the same grounds of sovereign immunity and other principles of public international law as raised in the present petition has been heard and is pending judgment before the Kerala High Court.