GAURAV KUMAR BANSALversusUNION OF INDIA & ORS.

                     [2014] 7 S.C.R. 725

                 GAURAV KUMAR BANSAL                                A
                               v.
                  UNION OF INDIA & ORS.
            (Writ Petiton (Civil) No. 536 of 2012)
                   SEPTEMBER 09, 2014
                                                                    B
   [T.S. THAKUR AND ADARSH KUMAR GOEL, JJ.]

     Constitution of India, 1950 - Art. 32 - Writ petition under
- Seeking directions to the Government of India to intervene
and expedite release of Indian seamen held hostages by the          C
Somalian Pirates in the international waters and to frame anti
piracy guidelines - Held: Pirates operating from Somalia is
serious menace to the safety of maritime traffic - Combating
piracy is imperative for safety of seafarers as well as
successful world trade - This Court cannot assume the role          D
of the executive to oversee the sensitive issue of co-
ordination with international agencies and bodies, when the
Government has taken cognizance of the problem as a/so
taken whatever steps could be possible - Though the State
has shown concern for its citizens, but an unfortunate situation    E
has come about in spite of serious efforts - Hence, direction
issued to periodically review the matter at the appropriate level
and appoint Nodal officer to co-ordinate and oversee the
efforts on the issue - Public interest litigation - International
Law.                                                                F
     Disposing of the writ petitions, the Court
    HELD: 1.1 This Court is assigned the role of sentinel
on the qui vive for protection of rights of citizens and
steps in, in exercise of power of judicial review for               G
protection of Fundamental Rights of the citizens, if the
State fails to perform its duty. At the same time, this Court
cannot assume the role of the executive to oversee the
sensitive issue of coordination with international
                              725                                   H
    726    SUPREME COURT REPORTS               [2014] 7 S.C.R.


A agencies and bodies for securing release of Indian
  citizens who are held hostages abroad, when it is shown
  that the departments of the Government have not only
  taken cognizance of the problem but also taken, in right
  earnest, whatever steps could be possible. The issue of
B coordination at international level with foreign countries
  and international bodies has to be left to the wisdom of
  experts in the Government. It is not a case where the State
  has not shown any concern for its citizens, but where
  unfortunate situation has come in spite of serious efforts.
c Handling of the situation requires expertise and
  continuous efforts. It has not been pointed out as to what
  particular direction can be issued in the circumstances.
  While safety and protection of the lives and liberty of
  Indian citizens is also the concern of this Court, the issue
  has to be dealt with at the level of the executive. [Para 11]
0
  [741-8-F]
       1.2 The pirates operating from Somalia have become
  serious menace to the safety of maritime traffic in Gulf of
  Aden and Western Arabian Sea and three incidents
E involving Indian citizens are part of such events.
  Apparent cause is lack of effective Government. It
  appears that recently there is some change on account
  of which situation might improve. Combating piracy is
  imperative for safety of seafarers as well as successful
F world trade. The issue is of international concern and is
  receiving the attention of Government of India at highest
  level. There is a hope the Government will continue its
  efforts for protection of affected citizens. [Para 12] [741-
  F-H; 742-A]
G      1.3 At this stage, it is directed that matter may be
  periodically reviewed at the appropriate level and a nodal
  officer may be designated who may continue to
  coordinate and oversee the efforts on the issue and with
  whom the families of the victims can also have interaction
H for getting information. [Para 13] [742-8-C]               I
   GAURAV KUMAR BANSAL v. UNION OF INDIA                       727


    Charania/ Sahu vs. Union of India 1989 (2) Suppl. SCR              A
597:(1990) 1 sec 613 - referred to.

                       Case Law Reference:
     1989 (2) Suppl. SCR 597 Referred to                Para 10
                                                                       B
    CIVIL ORIJINAL JURISDICTION : Writ Petition (Civil) No.
536 of 2012

     Under Article 32 of the Constitution of India.

                              WITH                                     c
W.P. (C) No. 26 of 2014.

    Gaurav Kumar Bansal (Petitioner-in-person), Sudhansu
Palo for the Appellant.
                                                                       D
     K. Radhakrishnan, Kiran Bhardwaj, Abhinav Mukherji,
Mohan Prasad Gupta, Shadman Ali, B. Krishna Prasad, D.S.
Mahra, P. Venkat Reddy, Guntur Prabhakar, Prerria Singh for
the Respondents.
                                                                       E
     The Judgment of the Court was delivered by

      ADARSH KUMAR GOEL, J. 1. These petitions seek
directions to the Government of India to intervene and expedite
release of Indian Seamen held hostages by the Somalian
Pirates in the international waters on 29th March, 2010, 2nd           F
March, 2012 and 10th May, 2012 and to frame anti-piracy
guidelines. Writ Petition (C) No. 536/2012 described as PIL,
is claimed to be by way of legal aid to the captivated seamen
at the instance of relatives of the victims, while Writ Petition (C)
No. 26/2014, also described as PIL, has been filed by the wife         G
of one of the captivated seamen. Thus, though described as
PIL, both the petitions seek enforcement of rights of individual
seamen who are held hostages at high sea.

     2. Case of the petitioner is that three merchant vessels          H
    728     SUPREME COURT REPORTS                 [2014] 7 S.C.R.

A have been hijacked in the high sea and out of the crew
  members held captive by the pirates, eight persons continued
  to be detained by them. It is the duty of the Government of India
  to take necessary steps to secure their release.
  Representations have been made to the Government
B authorities, but effective steps have not been taken to secure
  their release. Piracy is illegal as per UN Conventions on the
  Law of the Sea (UNCLOS). It is the fundamental duty of the
  Member States to cooperate in preventing incidents of piracy.
  International Maritime Organisation (IMO) is a UN specialised
c agency for safety of shipping and prevention of marine pollution
  by ships. As per information available on the website of IMO,
  armed pirates hijacked cargo ship "ICEBERG-1" (Flag State
  Panama) in International Waters of East Africa and took 24
  crew members (6 are Indians) hostage and sailed the ship to
  Somali coast on 29th March, 2010, at 9.30 hrs. On 10th May,
D 2012, at 9.23 am, pirates hijacked Tanker Ship "Symrni" (Flag
  State Liberia) at Arabian Sea and took 26 crew members (11
  Indians) hostage. On 2nd March, 2012, at 12.19 hrs, Somalian
  pirates hijacked Chemical Tanker "Royal Grace" (Flag Stage
  Panama) at Arabian Sea and took hostage 22 crew members
E (17 Indians) and sailed the ship towards coast of Somalia.
  Indian seamen were employed through East India Shipping
  Agency, Mumbai (Report No.5).

       3. It has further stated by the petitioner that the Admiralty
F Offences (Colonial) Act, 1849 provided for prosecution for
  offences at sea. Suppression of unlawful acts against Safety
  of Maritime, Navigation and Fixed Platform on Continental Shell
  Act (hereinafter referred to as SUA Act) 2002 has been enacted
  by Indian Parliament and contains provisions for dealing with
G the illegal activities which endanger the safety of maritime
  navigation and the safety of persons and property on the sea.
  Union of India has failed to protect the life and liberty of
  concerned Indian citizens in spite of being approached for the
  purpose.
H
      GAURAV KUMAR BANSAL v. UNION OF INDIA                     729
            [ADARSH KUMAR GOEt, J.]

          4. On 14th February, 2014, time was given to the learned A
    counsel for the Union of India to file an affidavit setting out the
    protocol, procedure and process followed by the Government
    of India in matters like the present where an Indian national is
    missing either on the high seas or elsewhere and also to set
    out the details and efforts made in locating and rescuing one B
    of the missing persons. Accordingly, affidavit has been filed on
    7th March, 2014 by the Under Secretary, Ministry of Shipping,
     Government of India, stating that since the year 2008, the pirates
     operating from Somalia have become a serious menace for
     the safety of maritime traffic as well as the crew members in      c
     the gulf of Aden and Western Arabian Sea and as a
     consequence thereof, Indian seafarers have also suffered at
     the hands of the said pirates. Ten Indian seafarers are held
     captive by the said pirates, seven of whom are ex-Asphalt
   . Venture, one ex-MT Albedo, while the whereabouts of one
                                                                         0
     Dheeraj Tiwari ex-MY Iceberg and one Rajbhar Rajoo Prasad
     ex-MT Albedo are not known. MV Asphalt Venture was hijacked
.-, on 29th September, 2010 with fifteen Indian crew members on
     board. The ship was released on 16th April, 2011 with eight
     Indian crew members and seven crew members were held
     back as hostages and they continue to be under the custody E
     of the pirates at unknown location. MV Albedo was hijacked.
     on 26th November, 2010 with crew members which included
     two Indians; one of the Indian crew members died. The said
     vessel sunk off on 7th - 8th July, 2013, but one Indian seafarer·
     is reported to be safe. The Indian crew members were F
     employed by the foreign owned registered vessels through
     recruitment and placement service provider at Mumbai. The
     Government of India has urged the ship owners and employers
     to initiate measures for the release of Indian seafarers and also
     raised the subject of continued captivity of Indian seafarers G
     during the meetings held under the IMO and Contract Group
     on Piracy off the Coast of Somalia (CGPCS). In case of foreign
     owned and foreign registered ships, the Government is severely
     constrained to take measures for release of seafarers held
      captive by Somali pirates. It has been further stated in the_above H
    730      SUPREME COURT REPORTS                    [2014] 7 S.C.R.


A   affidavit that Government of India has put in place an institutional
    structure for crisis management to ensure advance
    preparedness and quick response to counter such unlawful
    acts. This set up has the Cabinet Committee on Security (CCS)
    for taking major policy decisions, a Committee of Secretaries
B   for Anti Piracy and Hijack at Sea (COSAPH), chaired by
    Cabinet Secretary which has the executive responsibility for
    hands on crisis management. The issue of captivity of Indian
    seafarers and their release has been taken up in the meetings
    of Inter-Ministerial Group of Ministers (IMG), a body reporting
c   to COSAPH set up under the Ministry of Shipping and headed
    by the Additional Secretary, Ministry of Shipping, to address
    issues of hijacking of merchant ships involving Indian seafarers.
    The IMG has members representing all concerned Ministries
    and agencies like the Ministry of External Affairs (MEA), the
D   Ministry of Defence (MOD), the Ministry of Home Affairs (MHA),
    Intelligence Bureau (18), the Cabinet Secretariat, and the
    Directorate General of Shipping (DGS). This Group of Officers
    has been meeting regularly to appraise the developing
    situations and review the efforts and measures being taken by
    the various agencies within their concerned areas of mandated
E   responsibilities for securing the release of Indian hostages who
    have been in captivity of Somalian pirates. Respondent No.2,           1


    Ministry of External Affairs, as part of this IMG, has been closely
    co-ordinating in securing early release of the Indian hostages
    of MV Asphalt Venture and MV Albedo. The Government of
F   India has consistently taken up the issue of Indian seafarers of
    MV Asphalt Venture and MV Albedo, including with the Somali
    Ambassador in New Delhi. Separately, the High Commission
    of India in Nairobi, Kenya, which is concurrently accredited to
    Somalia, has consistently taken up the issue of the Indian
G   hostages of MV Asphlat Venture and MV Albedo with the
    authorities in Somalia since the occurrence of the incidents.
    Recently, High Commissioner of India in Nairobi wrote a letter
    to the President of the Puntland State of Somalia on 14th
    October, 2013 seeking information on the Indian hostages of
H
       GAURAV KUMAR BANSAL v. UNION OF INDIA                   731
             [ADARSH KUMAR GOEL, J.]
    MV Asphalt Venture and MV Albedo. However, no definite             A
    response has been forthcoming from the Somali Government
    in this regard. Again, High Commissioner of India in Nairobi
    visited Mogadishu from 21st - 22nd January, 2014 and met the
    Somali President, Prime Minister and Principal Secretary,
    Foreign Affairs and International Cooperation, and handed over     B
1
    the list of Indian hostages of MV Asptialt Venture and MV
    Albedo and requested for providing any information on them
    and for assistance in securing release of Indian seafarers in
    the custody of the Somali pirates. However, no response has
    been received in this regard so far.                               c
       5. It is further pointed out in the affidavit that at the
  International level, pursuant to a United Nations Security Council
  resol~tion, a 'Contract Group on Piracy off the Coast of
  Somalia' (CGPCS) was established in January, 2009 to
  coordinate anti-piracy efforts of the International Community.       D
  India is a founder-member of the CGPCS and has been fully
  engaged in the efforts to share information, coordinate actions
  of the navies in combating piracy in the Gulf of Aden, raising
  public and merchant marine awareness and examining legal
  issues with respect to apprehended pirates. It has been further      E
  submitted that India chaired the CGPCS from September, 2012
 .to December, 2012 including the 13th Plenary Session held
1
  in New York on 11th December, 2012. India, during its
  Presidency of the Security Council in November, 2012,
  organized an open debate on the subject of piracy on 19th            F
  November, 2012 following which a Presidential statement was
  adopted by the Council high-lighting the cause of the welfare
  of seafarers. Respondent No.2 is also coordinating with the UN
  and other international bodies like the Contract Group on Piracy
  off the Co~st of Somalia (CGPCS) to seek coordinated                 G
  solutions to the problem of combating piracy off the coast of
  Somalia. India has called for better coordination of international
  efforts for escorting merchant ships and patrolling in the region,
  preferably under the aegis of the United Nation. India has also
                                                                       H
    732      SUPREME COURT REPORTS                  [2014] 7 S.C.R.


A   become a member of International Contact Group (ICG) on
    Somalia in 2013.

         It has be~n submitted that representative of respondent
   No.2 participated in the 15th Plenary Session of Contact Group
B on Piracy off the Coast of Somali (CGPCS) and Anti Piracy
   Week held in Djibouti from 10th -15th November, 2013. During
  .the visit, key contacts were made with all the stake holders,
   including NGOs dealing with piracy and hostage crisis, UNODC
   officials, officials from Somalia and its entities, i.e., Puntland
  ·and Somaliland. The delegation also sought assistance of all
C the stakeholders in securing early release of Indian seafarers
   of MV Asphalt Venture and MV Albedo.

         India is a signatory to the United Nations Convention of the
   Law of Sea (UNCLOS), 1982, which defines piracy and pirates
D acts (Article 101). India does not presently have a separate
   legislation on piracy. Therefore, it was decided by the
   Government to prepare a comprehensive domestic legislation
   on piracy in line with the UNCLOS definition of 'piracy' at the
   earliest so as to ensure effective prosecution of the pirates and
E to act as a deterrent to pirates. For this purpose, the Piracy
   Bill 2012 was prepared by the MEA in consultation with the
   Ministries of Shipping, Defence, Home Affairs and Law &
   Justice and tabled, with the approval of the Cabinet, in the
   Parliament. Piracy Bill 201.2 wa'3 listed in earlier sessions of
F Parliament but, due to paucity of time, it could not be
 . considered. It is likely to be considered in the ongoing session
   of Parliament for which External Affairs Minister has already
   issued a notice.

         India has been providing assistance to Somalia in its
G   capacity building to enable it in combating piracy more
    effectively. It is not out of place to mention tha.t India has
    contributed US $ 3 Million towards augmentation of the African
    Union Mission in Somalia during 2011-2012.

H         Somalia continues to be impacted by Civil War, terrorism
     GAURAV KUMAR BANSAL v. UNION OF INDIA                      733
           [ADARSH KUMAR GOEL, J.]
  and the resultant instability and the State hitherto did not have     A
  full control over areas in Somalia from where the pirates
  operate. The new Federal Parliament was inaugurated on 20th
  August, 2012 ending the mandate of Somalia's eight year old
  Transitional Federal Government. The new political
  dispensation in Somalia is in the process of taking over              B
  effective control and, therefore, their role in securing release
  of seafarers under the custody of pirates is expected to
. gradually increase.

        The subject of ensuring the safety and security of seafarers,
  sailing on the high seas, is being seri0usly taken up by the IMO      C
  and also at the meetings of CGPCS.  I
                                            Several measures have
  been recommended which include, following Best Management
  Practices (BMP-version 4) and deployment of armed guards
  on board merchant ships. Prudent ship owners follow such
  recommendations which has resulted in no cases of hijacking           D
  by Somali pirates taking place during the last almost one and
  half year. Informatively, in the cases of MT Asphalt Venture and
· MV Albedo, armed guards were not deployed by their
  respective owners.
                                                                     E
    · All the concerns of the families of Indian crew held captive
by pirates are duly transmitted to the concerned agencies
through the deliberations at the meetings of IMGO. The IMGO
also reviews from time to time the possibility of offering financial
assistance to the families of affected seafarers by way of F
granting ex-gratia payments wherever the ship owners/
employers abdicate their responsibilities in order to somewhat
ease the financial burden on the families of the captive
seafarers. Respondent No.3 had granted ex-gratia p~yments
to the Indian families of MV Albedo, in December, 2012 ... G
Further, the families of crew of MT Asphalt Venture have been
paid their wages till 2013 under the orders of the Hon'ble High
Court .of Bombay.
      The seamen held hostages in March, 2010 have not been
                                                                        H
    734       SUPREME COURT REPORTS                   [2014) 7 S.C.R.


A released till date is not correct as the MV Iceberg-I was captured
  on 29th March, 2010 and was subsequently released on 23rd
  December, 2012 along with all the 22 crew of different
  nationalities except Sh. Dheeraj Tiwari, Chief Officer whose
  whereabouts are not yet known and presumed to be still
B missing/unaccounted for since 8th September, 2011, during the
  captivity period. No other Indian national seafarer of MV
  l:ceberg-1 is currently in Somali pirate's custody since March,
  2010 as contended by the petitioner. The remnant eight Indian
  crew that continue to be in Somali pirates captivity till date, are
c seven Indian crew ex-MT Asphalt Venture from 29th
  September, 2010 and one Indian crew of MV Albedo.

          6. Counter affidavit has also been filed by the Ministry of
    l;xternal Affairs with almost similar stand. It may be worthwhile
    to reproduce the relevant statement made in the said affidavit:-
D
          "It is submitted that India has been providing assistance
          to Somalia in its capacity building to enable it in
          combating piracy more effectively. It is further mention
          that India has contributed US$ 3 Million towards
E         augmentation of the African Union Mission in Somalia
          during 2011-2012. It is further submitted that Somalia
          continues to be impacted by Civil War, terrorism and the
          resultant instability and the State hitherto did not have full
          control over areas in Somalis from where the pirates
F         operate. The new Federal Parliament was inaugurated on
          20.08.2012 ending the mandate of Somalia's eight year
          old Transitional Federal Government. The new polit~cal
          dispensation in Somalia is in the process of taking over
          effective control and therefore, their role in securing
          release of seafarers under the custody ·of pirates is
G
          expected to gradually increase."

         7. In the affidavit filed on 11th April, 2013 in Writ Petition
    (C) No. 536 of 2012 steps taken in the matter have been stated
    as follows:- ·
H
GAURAV KUMAR BANSAL v. UNION OF INDIA                 735
      [ADARSH KUMAR GOEL, J.]
"4. It is respectfully submitted that the Government has      A
set up an Inter-Ministerial Group of Officers (hereinafter
referred to as the "/MG'? headed by the Additional
Secretary to the Ministry of Shipping to address issues
of hijacking of merchant ships involving Indian
                                                              8
seafarers. Furthermore, the /MG has members
representing all concerned Ministries and agencies and
meets regularly to deal with the situation of Indian
hostages who are in captivity of Somali pirates.
                                                              c
 5. It is further submitted respectfully that Ministry of
 External Affairs and the Indian Missions abroad
 continuously seek the help of the concerned foreign
 governments to liaise with ship owners and persuade
 them to secure early release of Indian hostages held         D
 captive by Somali pirates.

 6. It is respectfully submitted that Government's
 relentless efforts in securing release of Indian hostages    E
 on· board the three merchant vessels, namely, MV
 Iceberg, MT Smyrni and MT Royal Grace - mentioned
 in this Writ Petition, have yielded significant results in
 the recent past that may be summed up as following"
                                                              F
 (i) 22 seafarers, including 5 Indian Seamen on board
 MV Iceberg, hijacked on 29.03.2010, were rescued by
 the Punt/and Maritime Police Force {hereinafter referred
 to as the "PMPF'J in a humanitarian rescue operation
 conducted on 23.12.2012 and subsequently arrived in          G
 India safely. These seamen were held hostage on board
 MV Iceberg since March, 2010. Only one Indian
 Seafarer on board MV Iceberg i.e. Shri Dheeraj Tiwari
 is still missing as he was not found onboard at the time     H
     736       SUPREME COURT REPORTS                  [2014] 7 S.C.R.

A,         of the aforementioned rescue operation. The Indian
           Government is making endeavours to ascertain his
           whereabouts.

           (ii) It is respectfully submitted that two vessels namely MT
B          Royal Grace and MT Smyrni were hijacked on
           02.03.2012 and 10.05.2012 respectively. It is further
           submitted that MT Royal Grace and MT Smyrni along
           with multinational crew, including 28 Indians, were
           released by Somali pirates on March ~19, 2013. The two
c          ships reached Sala/ah port in Oman on March 13 and
           March 14, 2013 respectively.

            7. It is respectfully submitted that the 17 Indian crew
           members of MT Royal Grace and 11 Indian crew
D          members of MT Smyrni were received at Sala/ah by
           officials from our Embassy and were extended all
           assistance. Their travel to India was facilitated by our
           Mission. 11 crew members of MT Smymi safely arrived
           in India on March 18, 2012. 16 of the 17 Indian crew
E,         members of MT Royal Grace have safely arrived in India
           till date. At present, only 1 of the Indian crew members
           of MT.Royal Grace (Captain) is on board along with 2
           Nigerians, 1 Pakistani and 1 Bangladeshi as minimum
           manning requirement for the ship. He is expected to
           reach India once the replacement crew is arranged by
           the ship owner.

       8. It is respectfully submitted that the Ministry of External
       Affairs (h'ereinafter referred to as the "MEA 'J, as part of
G      the Government of India, has been making all efforts to
       deal with piracy and hostage crisis. The piracy issue is
       also taken up during all high level interactions with the
       Government of Somalia.

H
GAURAV KUMAR BANSAL v. UNION OF INDIA                    737
      [ADARSH KUMAR GOEL, J.]
9. It is respectfully submitted that at the International level, A
pursuant to a United Nations Security Council resolution,
a 'Contract Group on Piracy off the Coast of Somalia'
(hereinafter referred to as the "CGPCS'J was established
in January, 2009 to coordinate anti-piracy efforts of the
International Community. It is further respectfully B
submitted that India is a founder-member of the CGPCS
and has been fully engaged in the efforts to share
information, coordinate actions of navies in combating
piracy in the Gulf of Aden, raising public and merchant
marine awareness and examining legal issues with c
 respect to apprehended pirates. It is further submitted
 that India chaired the CGPCS from September, 2012 to
 December, 2012 including the 13th Plenary Session held
 in New York on 11.12.2012. The Communique adopted
 by the CGPCS, inter-alia, highlighted the need for greater 0
 International Cooperation for securing the early release
 of hostages and their Welfare.

 10. It is respectfully submitted that India during its
 Presidency of the Security Council in November, 2012
 organized an open debate on the subject of piracy on            E
 19.11.2012 following which a Presidential Statement was
 adopted by the Council highlighting the cause of the
 welfare of seafarers.

 11. It is respectfully submitted that India is a signatory to   F
 the United Nations Convention of the Law of Sea, 1982
 (hereinafter referred to as the "UNCLOS'J which defines
 piracy and pirate acts (Article 101). It is further submitted
 that India does not presently have a separate legislation
 on piracy. Therefore, it was decided by the Government          G
 to prepare a comprehensive domestic legislation on
 piracy in line with the UNCLOS definition of 'piracy' at the
 earliest so as to ensure effective prosecution of the
 pirates and to act as a deterrent to pirates. For this
                                                                 H
    738       SUPREME COURT REPORTS                  [2014] 7 S.C.R.


A         purpose, the Piracy Bill 2012 was prepared by the MEA
          in consultation with the Ministries of Shipping, Defence,
          Home Affairs and Law & Justice and tabled with the
          approval of the Cabinet in the Lok Sabha on 24 April
          2012. The Bill was referred to the Standing Committee
B         on External Affairs which presented its report to the Lok
          Sabha on 14 August 2012. Based on recommendations
          made by the Standing Committee and subsequent inter-
          m in is teri a I consultations held with all concerned
          Ministries/Departments, Official Amendments to the
c         Piracy Bill, 2012 were approved by Cabinet on 18 March,
          2013.

          12. It is submitted that, India has been providing
          assistance to Somalia in its capacity building to enable
          it in combating piracy more effectively. It is not out of
0         place to mention that India has contributed US$ 3 Million
          towards augmentation of the African Union Mission in
          Somalia during 2011-2012.

          13. It is further submitted that the MEA and the Indian
E         Missions abroad have played an important role in
          release of Indian Hostages on board MV Suez, MV
          Fairchem Bogey, MV Savina Caylyn, MT Smyrni, MT
          Royal Grace and others.

          14. It is respectfully submitted that Somalis continues to
F         be impacted by Civil War, terrorism and the resultant
          instability and the State hitherto did not have full control
          over areas in Somalia from where the pirates operate.
          The new Federal Parliament was inaugurated on
          20.08.2012 ending the mandate of Somalia's eight year
G         old Transitional Federal Government. The new political
          dispensation in Somalia is in the process of taking over
          effective control and therefore, their role in securing
          release of seafarers under the custody of pirates is
          expected to gradually increase."
H
     GAURAV KUMAR BANSAL v. UNION OF INDIA                   739
           [ADARSH KUMAR GOEL, J.]
      8. We have heard learned counsel for the parties.              A

     9. Learned counsel for the petitioner submitted that this
Court may issue directions to the Government of India to take
up the matter at the international level and to secure the release
of Indian citizens who have been held captive by the Pirates.
                                                                     8
Learned counsel for the Union of India, however, submitted that
all necessary steps have already been taken and will continue
to be taken as the Government of India is concerned with the
issue of safety of its citizens and in the circumstances no
direction is called for.
                                                                     c
      10. There is no manner of doubt that a welfare State is
protector of life and liberty of its citizens not only within the
country but also outside the country in certain situations.
Concept of parens patriae recognises the State as protector
of its citizens as parent particularly when citizens are not in a    D
position to prot~ct themselves. The Preamble to the
Constitution, read with Directive Principles, under Articles 38,
39 and 39A enjoins the State to take all protective measures
to which a Social Welfare State is committed. Interestingly, this
doctrine has been recognised in India even before the                E
Constitution came into force. Referring to this aspect, this
Court, in Charania/ Sahu vs. Union of lndia 1 observed as
under:-

        "35....... Thus the position is that according to Indian
     · -c-oncept parens patriae doctrine recognized King as the      F
        protector of all citizens and as parent. In Budhakaran
        Chankhani v. Thakur Prasad Shah AIR 1942 Cal. 311
        the position was explained by the Calcutta High Court at
        page 318 of the report. The same position was reiterated
        by the said High Court in Banku Behary Monda/ v. Banku       G
        Behary hazra at page 205 of the report. The position was
        further elaborated and explained by the Madras High
        Court in Medai Dalavoi T. Kumaraswami Mudaliar v.

1.   (1990) 1 sec 613.                                               H
     740       SUPREME COURT REPORTS                 [2014) 7 S.C.R.


A          Meddi Dalavoi Rajammal at page 567 of the report. This
           Court also recognized the concept of parens patriae
           relying on the observations of Dr. Mukherjea aforesaid
           in Ram Saroop v. S.P. Sahi at pages 598 and 599. In
           the 'Words and Phrases" Permanent edition, Vol. 35 at
B          page 99, it is stated that parens patriae is the inherent
           power and authority of a Legislature to provide protection
           to the person and property of persons non sui juris, such
           as minor, insane, and incompetent persons, but the
           words ''parens patriae" meaning thereby 'the father of the
           country', were applied originally to the King and are used
c          to designate the State referring to its sovereign power of
           guardianship over persons under disability. (Emphasis
           supplied). Parens patriae jurisdiction, it has been
           explained, is the right of the sovereign and imposes a
           duty on sovereign, in public interest, to protect persons
D.         under disability who have no rightful protector. The
           connotation of the term "parens patriae" differs from
           country to country, for instance, in England it is the King,
           in America it is the people, etc. The Government is within
           its duty to protect and to control persons under disability.
E          Conceptually, the parens patriae theory is the obligation
           of the State to protect and takes into custody the rights
           and the privileges of its citizens for discharging its
           obligations. Our Constitution makes it imperative for the
           State to secure to all its citizens the rights guaranteed by
F          the Constitution cJnd where the citizens are not in a
           position to assert and secure their rights, the State must
           come into picture and protect and fight for the rights of
           the citizens. The Preamble to the Constitution, read with
           the Directive Principles, Articles 38, 39 and 39A enjoin
G          the State to take up these responsibilities. It is the
           protective measure to which the social welfare state is
           committed. It is necessary for the State to -ensure the
           fundamental rights in conjunction with the Directive
           Principles of State Policy to effectively discharge its
H          obligation and for this purpose, if necessary, to deprive
    GAURAV KUMAR BANSAL v. UNION OF INDIA                       741
          [ADARSH KUMAR GOEL, J.]
     some rights and privileges of the individual victims or            A
     their heirs to protect their rights better and secure these
     further...... "

        11. This Court is assigned the role of sentinel on the qui
;vive for protection of rights of citizens and steps in, in exercise 8
·of power of judicial review for protection of Fundamental Rights
 of the citizens, if the State fails to perform its duty. At the same
\ime, this Court cannot assume the role of the executive to
 oversee the sensitive issue of coordination with international
 agencies and bodies for securing release of Indian citizens who · C
 are held hostages abroad, when it is shown that the
 departments of the Government have not only taken cognizance
 of the problem but also taken, in right earnest, whatever steps
 could be possible. The issue of coordination at internation~I
 level with foreign countries and international bodies has to be
 left to the wisdom of experts in the Government. It is not a case D
 where the State has not shown any concern for its citizens, but
 where unfortunate situation has come about in spite of serious
 efforts. Handling of the situation requires expertise and
 continuous effc;>rts. It has not been pointed out as to what
 particular direction can be issued in the circumstances. While E
 safety and protection of the lives and liberty of Indian citizens
 is also the concern of this Court, the issue has to be dealt with
 at the level of the executive. From the affidavit filed on behalf
 of the Union of India, it is evident that steps have been taken
 at various levels, though without complete success.                  F

        12. It does appear that pirates operating from Somalia
  have become serious menace to the safety of maritime traffic
  in Gulf of Aden and Western Arabian Sea and three incidents
  involving Indian citizens are part of series of such events.          G
· Apparent cause is lack of effective Government, as pointed out
  in the affidavit filed on behalf of Government of India. It appears
· that recently there is some change on account of which situation
  might improve. Combating piracy is imperative for safety of
. seafarers as well as successful world trade. The issue is of
                                                                        H
    742          SUPREME COURT REPORTS              [2014] 7 S.C.R.


A   international concern and as already noted, it is receiving the
    attention of Government of India at highest level. We do hope
    the Government of India will continue its efforts for protection
    of affected citizens.

        13. In these circumstances, only direction which can be
8
  issued, at this stage, is that the matter may be periodically
  reviewed at the appropriate level and a nodal officer may be
  designated who may continue to coordinate and oversee the
  efforts on the issue and with whom the families of the victims
C can also have inleJaction for getting information or giving
  suggestions.

          14. With the above observations and direction, the Writ
    Petitions are disposed of.

D   Nidhi Jain                               Writ Petitions disposed of.