The nationwide sensation created by the transitional Italian Government’s move to help two Italian marines, Massimiliano Latorre and Salvatore Girone, dodge the Indian justice system calls into question the pivotal role played by the Supreme Court in handling bail / parole applications in sensitive cases.
A discernible pattern of pick and choose is visible. Thus, bail has been denied to all accused in the Malegaon 2008 bomb blasts case, including the cancer-ridden Sadhvi Pragya, but granted to journalist Syed Kazmi in the Israeli diplomat car bomb case despite application of the Unlawful Activities Act where there is no bail under Section 43D.
What is pertinent in this sordid episode is that the two Indian fishermen, Ajesh Binki of Tamil Nadu and Valentine aka Gelastine of Kerala, were shot dead on February 15, 2012, while fishing off the Kerala coast within the Indian Contiguous Zone. The two Marines of the Italian Navy Vessel Protection Detachment on board oil tanker MV Enrica Lexie claimed they mistook the fishermen for pirates!
This is unacceptable for the simple reason that pirates will not operate so close to the Indian coast, and because the Italian ship, which was sailing from Singapore to Egypt, should have been on the open ocean, hundreds of miles away from the Indian coastline. Their very presence in Indian waters was suspicious, but went unquestioned by Indian authorities.
However, the ship was intercepted by the Indian Coast Guard and two men suspected of involvement in the shooting arrested. After nearly four months in judicial custody, the duo was released under strict bail conditions and assurances from the Italian Government that they would remain available to answer charges before Indian courts.
Then, in an astonishing display of magnanimity, the Supreme Court allowed the duo a two-week vacation to go home to celebrate Christmas! On this first trip outside India, they returned as per promise in January 2013.
Thereafter, the Supreme Court again allowed the Marines a four-week vacation to vote in the Italian election! It accepted a facile plea by the Italian Ambassador that there was no postal ballot in their country, whereas a simple Google search would expose this lie. In any case, they need not have voted at all. It boggles the mind that persons facing murder charges should be allowed to hop and skip around the globe in such a whimsical manner.
The Supreme Court was aware that the Union Government had not, despite its direction on January 18, 2013, set up a special court to try the Marines. Having ruled that the Kerala court had no jurisdiction to prosecute the Marines, the apex court should have ensured the setting up of a special court by giving the Government a deadline in the matter.
When the Marines’ application came up for final hearing on February 22, Additional Solicitor-General Indira Jaising admitted she did not know if the process for consultation with the CJI for setting up the special court had begun. The CJI headed the bench hearing the appeal, accepted the Italian Ambassador’s undertaking that the Marines would return to India within four weeks, and allowed them to go to Italy on temporary travel documents as their passports had not been received by the Union Home Ministry after being mailed by the trial court in Kerala.
Thus, a bench of Chief Justice Altamas Kabir and Justices Anil Dave and Vikramjit Sen ordered, “The two petitioners will be entitled to travel to Italy and to return to India on the basis of temporary passport or travel documents and the Ministry of Home Affairs shall direct the Foreigners Regional Registration Office to provide entry visas on the said temporary travel documents.
“The Ministry of Home Affairs, Government of India, shall also inform the authorities of the Indira Gandhi International Airport, including the Bureau of Immigration and the Central Industrial Security Force concerned of this order.”
Why was the judiciary so solicitous towards persons accused in a murder case? Why did it fail to lay down stringent conditions to ensure the Marines came back, as the Kerala High Court had done previously, including execution of a Rs 6 crore bank guarantee?
India has many foreign prisoners, both under trial and convicted. Yet this rare privilege of home visits in quick succession is not extended to any of them. Supposing Pakistani prisoners request home leave to celebrate Eid?
Senior Kerala Police officials, who naturally do not wish to be identified, are blaming the Union Government and the judiciary in letting the Marines escape. Working under enormous political and diplomatic pressure, the police had managed to arrest the two men, seize the rifles involved in the shooting, and file an FIR, all of which has now gone to waste.
There can be no doubt that Italy is at fault. Rome accepted Indian jurisdiction when it sought parole for Christmas, which means it waived Italian jurisdiction under Article 92 of the UNCLOS. The plea for the second vacation was clearly a ploy to enable the men to flee the country.
It is impossible not to recall India’s experience in handling the case of Bofors kickbacks accused Ottavio Quattrocchi, who was allowed to leave India when his presence became embarrassing for the Congress president, and then scuttle his detention under an Interpol red corner notice.
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