The complex ruling by the international arbitral tribunal in the case of the Italian marines has unsurprisingly generated distinct responses from the governments of Italy and India. The Italian prime minister has expressed delight at the order and expects the imminent return of Salvatore Girone, currently ensconced in the Italian embassy in New Delhi, to Italy. The Indian ministry of external affairs has been guarded, stressing on the fact that the order does not divest the authority that the Supreme Court of India (SC) currently wields over Girone. A careful reading of the order suggests that while both parties are correct, the ball is very firmly in the SC to set the conditions for bail that it deems appropriate.
The tribunal order rests on two legal propositions: One principled, and one pragmatic. As a matter of principle, the tribunal held that there ought to be “no undue restraint on individuals as a result of extended arbitration proceedings between states”. This is unobjectionable, based on the fundamental legal propositions that a person is innocent until proven otherwise and that while undergoing trial, bail may be granted, especially if proceedings are protracted. If enforced simply, this principle would have required the tribunal to allow Girone to return to Italy. However, as a practical matter, the tribunal held that no provisional measure ordered by it should alter the fact that the SC exercises jurisdiction over Girone. This was a pragmatic move, symptomatic of an international tribunal according due deference to the highest constitutional court of a sovereign nation.
An interplay of the two principles led to its direction to the two states to approach the SC for a relaxation of bail conditions that allows Girone to return to Italy. Copious references in the order to “considerations of humanity” leave little doubt as to what the tribunal expects the SC to do.
Despite this, it is instructive to note that the tribunal imposes no fetter on the conditions for the grant of bail, which may be imposed by the SC. Its mandatory order is directed at the parties — the Union of India and the Republic of Italy — to cooperate in allowing Girone to return to Italy. In particular, there is no specific direction to the SC. It is a careful piece of judicial craftsmanship that achieves its desired effect without stepping on anyone’s toes.
As a consequence, the ensuing matter before the SC will be similar to a regular bail application that is unopposed by the prosecution. Existing jurisprudence dictates that the court would ordinarily grant bail, though after independently applying its mind as to how it should exercise its discretion.
It is while exercising such discretion that the SC ought to fully consider the import of two crucial facts. First, there is a possibility, despite Italy’s forceful assertions to the contrary, that Girone will not return to India even if it is ultimately found that Indian courts have jurisdiction. The plight of the marines is an emotive public issue in Italy with its politicians and lawyers continually being accused of having failed them. One must seriously wonder whether the public desire for greater display of governmental machismo can be reined in by citing mandatory obligations under international law. Second, such a possibility is not merely hypothetical. In 2013, Italy publicly reneged on its assurance before the SC to secure the return of the marines to India. As India submitted before the tribunal, “intense diplomatic efforts” were necessary to secure their return. In the process however, the dignity of the SC was severely eroded.
In this context, the SC faces the prospect of a delicate balancing act. Reciprocating the spirit of comity in which the tribunal’s order was pronounced implies acquiescence in allowing Girone to return to Italy. However there is much more than comity at stake. Legally, Girone is a quintessential flight risk. Every step, including perhaps setting a detailed timetable and mandating regular hearings, must be considered by the SC to ensure that if indeed Indian courts are ultimately found to have jurisdiction, he returns to stand trial. Above all, the SC’s authority and consequently India’s international image are at stake. It can ill-afford another instance of a foreign country cocking a snook at it.