The unprecedented case of the two Italian marines has not only challenged Indian jurisprudence, but has also brought into open the government‚Äôs struggle to keep up with the legal intricacies – with ministries finding it hard to interpret the order to trying to pass the buck on leading the prosecution.
The Supreme Court had on Friday rapped the government for its delay in setting up a special court for the trial of the marines, Massimilano Latorre and Salvatore Girone, accused of shooting two Indian fishermen, apparently mistaking them for pirates, on February 15, 2012.
Since the January-18 judgment that called for the transfer of the case to the Centre and setting up of special court, the government, namely its three line ministries of Home Affairs, External Affairs and Law, has been in a state of confusion over how to proceed with the case.
According to sources, the Law Ministry is still grappling with the interpretation of the judgment, before taking a decision.
‚ÄúThey are still trying to figure out if the investigation carried out by the Kerala police will be taken into account during the trial or it needs to carry out a fresh probe after getting all the relevant files from the state government. Several questions remain unanswered,‚Äù sources said.
According to the sources, the three ministries have been asked to discuss the issue so that a decision could be taken in this regard immediately. As far as the travel of the marines to Italy is concerned, the Ministry of Home Affairs (MHA) will ensure that all papers are issued within the due date.
Just before the hearing on Friday, the Home Ministry had asked the Ministry of External Affairs (MEA) to take the lead in presenting the government‚Äôs case, which left the legal honchos in South Block annoyed.
The MHA had apparently wanted the External Affairs Ministry to take the lead only on Wednesday, arguing that the foreign office has the nodal role in the implementation of the UN Convention of the Law of the Seas, which relates to maritime sovereignty.
But, the MEA had pointed out that it was not an enforcement agency. ‚ÄúSince it is a criminal case, the MHA is expected to take up the responsibility and act as the nodal agency,‚Äù said government sources.
The Italians had argued from the beginning that the case could not be tried in Indian courts as the incident took place in international waters. But, the Indian side had asserted that the Indian Penal Code allowed for trial of any incident which took place on an Indian vessel, which the boat belonging to the Indian fishermen assuredly was. The Italians had also claimed that the marines, being a member of the Italian government, enjoyed sovereign immunity, which was strongly contested by India, pointing out that sailors were on contract to the commercial merchant vessel.
At the last hearing, the apex court allowed the two marines to travel to Italy for four weeks to exercise their franchise for the general elections on February 24 and 25. They had earlier been allowed to go to Italy for the holidays and returned back before their scheduled date in January this year.