Supreme Court of India

REPUBLIC OF ITALY AND ORS.versusUNION OF INDIA AND ORS.

Citation: 2013 INSC 43
Decided: 18 January 2013
Disposal: Disposed off
Bench: ALTAMAS KABIR

Holding

The Union of India, not the State of Kerala, has jurisdiction to investigate and try the Italian naval officers, and the incident is not an “incident of navigation” under Article 97 of UNCLOS, so Indian criminal jurisdiction is permissible.

Summary

The case arose from an incident on 15 February 2012 when two Italian naval officers aboard the merchant vessel M.V. Enrica Lexie fired on an Indian fishing boat 20.5 nautical miles off the Kerala coast, killing two fishermen. The Kerala police lodged an FIR under the Indian Penal Code and arrested the officers, which the petitioners (the Italian officers) challenged, claiming lack of jurisdiction and sovereign immunity. The Supreme Court examined whether the Kerala State Police could investigate a crime occurring in the contiguous zone and whether Indian courts or the Italian courts had exclusive jurisdiction over the accused. It held that the incident occurred in the contiguous zone, beyond Kerala's jurisdiction, and that the Union of India, not the State, has authority to investigate and try the officers, subject to Article 100 of UNCLOS. The Court also ruled that the firing does not constitute an “incident of navigation” under Article 97 of UNCLOS, so Indian criminal jurisdiction is not barred, and directed the Union to set up a special court for the trial. The writ petition and special leave petition were disposed of with these directions.

Issues considered

The Kerala State Police's jurisdiction to register the FIR and investigate the incident in the contiguous zone
Whether Indian courts have criminal jurisdiction over the Italian naval officers under the IPC and CrPC as extended to the exclusive economic zone
The applicability of UNCLOS Articles 97, 100, 56, 57 and 59 to the incident
The claim of sovereign and functional immunity by the Republic of Italy for its naval personnel
Whether the incident qualifies as an “incident of navigation” under international law

Legislation cited

Code of Criminal Procedure, 1973s. 179, s. 183, s. 188A
Constitution of Indias. Article 226, s. Article 245(1), s. Article 245(2), s. Article 297(1-3), s. Article 32
Indian Penal Code, 1860s. 2, s. 302, s. 307, s. 34, s. 4, s. 427
Maritime Zones Act, 1976s. 3, s. 5, s. 6, s. 7, s. 7(7)
Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002s. 3
United Nations Convention on the Law of the Sea (UNCLOS), 1982s. Article 100, s. Article 55, s. Article 56, s. Article 57, s. Article 59, s. Article 97

Subjects

jurisdictioncontiguous zoneexclusive economic zoneUNCLOSsovereign immunitymaritime lawIndian Penal Codespecial courtinternational law

Judgment

(2013] 4 S.C.R. 595

REPUBLIC OF ITALY AND ORS. A
v.
UNION OF INDIA AND ORS.
(Writ Petition (C) No. 135 of 2012 etc.)
JANUARY 18, 2013
B
[ALTAMAS KABIR, CJI AND J. CHELAMESWAR, JJ.]

International Law:

.Incident of firing at a distance of about 20. 5 nautical miles c
from the Indian sea-coast of the State of Kera/a - Firing by
officers of naval staff of Italy deployed on merchant ship of
Italy - Resulting in death of two persons on Indian Fishing
Vessel - FIR against two officers u/s. 302134 /PC lodged in
the State of Kera/a - State Police investigated the matter and D
arrested the accused - Writ Petition u/Art. 226 of the
Constitution by the accused challenging the jurisdiction of
State of Kera/a in registering FIR, in investigating the matter
and in arresting the accused - During pendency of the writ
petition criminal proceedings were also initiated against the E
accused in Italy under Italian Penal Code - The Consul
General of Italy asserted that Italy had exclusive jurisdiction
over the accused and they· having acted in official capacity
were entitled to sovereign and functional immunity - During
pendency of the judgment of High Court, Republic of Italy
invoked jurisdiction u/Art. 32 of the Constitution for the same F
reliefs - As the writ petition u/Art. 226 was dismissed, SLP also
filed - HELD: Action by State o' Kera/a was without jurisdiction
because the incident took place within Contiguous Zone on
which the State did not have jurisdiction - Also because in the
case, two sovereign countries were involved and one country G
had already initiated criminal proceedings against the
accused, State of Kera/a as one of the units of the federal unit
would not have authority to try the accused - 'Declaration on
Principles of International Law Concerning Family Relations
595 H
596 SUPREME COURT REPORTS [2013] 4 S.C.R.

A and Co-operation between States in accordance with the
Charters of United Nations' has to be conducted at federal
level and not at provincial level - The incident c;annot be said
to be an ''incident of navigation" within the meaning of Art. 97
of UNCLOS - By virtue of extention of the provisions of /PC
B and Cr.P. C. to contiguous zone, Union of India is 1mtitled to
take cognizance, investigate and try the accused - But the
same is subject to the provisions of Art. 100 of UNCLOS -
Direction to Union of India to set up Special Court to try the
case - Accused can also invoke provisions of Article 100 of
c UNCLOS whereupon the question of jurisdiction to investigate
into the incident and for the courts in India to try the accused
would be considered - /ffound that both the countrie1s i.e. India
as well as Italy have concurrent jurisdiction over the matter,
the directions passed in this judgment will continue - Penal
Code, 1860 - ss. 302, 307, 427 r/w s.34 - Suppression of
0
Unlawful Acts Against Safety of Maritime Navigation and Fixed
Platforms on Continental Shelf Act, 2002 - s.3 - United
Nations Convention on the Law of the Sea, 1982 - Articles
97and 100 - Maritime Zones Act, 1976 - Declaration on
Principles of International Law Concerning Family Relations
E and Co-operation Between States in accordance with the
Charters of United Nations - Constitution of India, 1950 - Article
297.

P'etitioner Nos. 2 and 3 and four other officers of
F naval staff of Republic of Italy were deployed in the board
of merchant ship which was flying the Italian Flag. The
deployment was pursuant to a Government decree of
Republic of Italy, which was enacted to protect the Italian
ships from piracy in international seas. At a distance of
G about 20.5 nautical miles from the Indian Sea-Coast, off
the State of Kerala, the Italian ships mistook an Indian
Fishing Vessel to be a pirate vessel and opened fire on
it. Two persons of the Indian Fishing Vessel were killed
on account of the firing. FIR was lodged uls. 302134 IPC
H at the Police Station in the State of Kerala.
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 597
AND ORS.
The Republic of Italy filed a writ petition challenging A
the jurisdiction of the State of Kera la and that of the State
Police to register the FIR and to conduct investigation
and to arrest them. They prayed for quashing the FIR as
being without jurisdiction, contrary to law, null and void.
The High Court reserved the judgment. In the meantime, B
the petitioners filed Writ Petition before this Court, asking
for the same reliefs.

During pendency of the Writ Petition u/Art. 32, the
State Police filed charge-sheet against petitioner Nos. 2
and 3 u/ss. 302, 307, 427 r/w. s. 34 IPC and u/s. 3 of the C
Suppression of Unlawful Acts Against Safety of Maritime
Navigation and Fixed Platforms on Continental Shelf Act,
2002. When the High Court dismissed the Writ Petition,
Special Leave Petition was filed before this Court.
•' D
Primarily it was contended on behalf of petitioner
Nos. 2 and 3 that the State Police had no jurisdiction to
investigate the incident; that in view of public international
law, the Courts of the Republic of Italy had jurisdiction
to try the accused and not the Indian Courts, because the E
incident occurred beyond the territory of India to which
location sovereignty of India did not extend; that
Parliament cannot extend the application of the laws
enacted by it, beyond the territory of India; that the
incident which resulted in the death of two Indians was F
an 'incident of navigation' within the meaning of Article
97 of the United Nations Convention on the Law of the
Sea (UNCLOS).

Disposing of the Writ Petition and Special Leave
Petition, the Court G

HELD:

Per Altamas Kabir (CJI):

1. India is entitled both under its Domestic Law and H
598 SUPREME COURT REPORTS (2013] 4 S.C.R.

A the Public International Law to exercise ri1ghts of
sovereignty upto 24 nautical miles from the baseline on
the basis of which the width of Territorial Waters is
measured. It can exercise sovereign rights wi,thin the
Exclusive Economic Zone only for certain purposes.
B [Para 100] [656-E-F]
2. In an area in which a country 111tercises
sovereignty, its laws will prevail over other laws in case
of a conflict between the two. On the other hand, a State
may have sovereign rights over an area, which stops
C short of complete sovereignty as in the instant case
where in view of the provisions both of the Maritime
Zones Act, 1976, and UNCLOS 1982, the Exclusive
Economic Zone is extended to 200 nautical milos from the
baseline for measurement of Territorial Waters. Although,
D the provisions of Section 188A l.P.C. have been extended
to the Exclusive Economic Zone, the same are extended
to areas declared as "designated areas" under the Act
which are confined to installations and artifi1:ial islands,
created for the purpose of exploring and exploiting the
E natural resources in and under the sea to tl,1e extent of
200 nautical miles, which also includes the area
comprising the Continental Shelf of a country. However,
the Exclusive Economic Zone continues to be part of the
High Seas over which sovereignty cannot l1>e exercised
F by any nation. [Para 96] [654-E-H; 655-A]

3. Since India is a signatory, she is obligated to
respect the provisions of UNCLOS 1982, and to apply the
same if there is no conflict with the domestic law. In this
context, both the countries may have to subject
G themselves to the provisions of Article 94 of the
Convention which deals with the duties of the Flag State
and, in particular, sub-Article (7) which pro•1ides that each
State shall cause an inquiry to be held into every marine
casualty or incident of navigation on the high seas
H
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 599
AND ORS.
involving a ship flying its flag and causing loss of life or A
serious injury to nationals of another State. It is also
stipulated that the Flag State and the other State shall
cooperate in the conduct of any inquiry held by that
other State into any such marine casualty or incident of
navigation. [Para 97] [655-A-D] B
4. The expression "incident of navigation" in Article
97 cannot be extended to a criminal act, involving the
killing of two Indian fishermen on board an Indian fishing
vessel, although, the same was not flying the Indian flag.
If at all, Article 100 of the Convention may stand attracted C
if and when the defence version of apprehension of a
pirate attack is accepted by the Trial Court. [Para 95] [653-
8-D]
5. The territorial criminal jurisdiction is founded on
various principles which provide that, as a matter of D
convenience, crimes should be dealt with by the States
whose social order is most closely affected. However,
some public ships and armed forces of foreign States
may enjoy a degree of immunity from the territorial
jurisdiction of a nation. [Para 98] [655-D-F] E
6. The incident took place within the Contiguous
Zone over which, both under the provisions of the
Maritime Zones Act, 1976, and UNCLOS 1982, India is
entitled to exercise rights of sovereignty. However, Sub-
F
section (4) of Section 7 only provides for the Union of
India to have sovereign rights limited to exploration,
exploitation, conservation and management of the natural
resources, both living and non-living, as well as for
producing energy from tides, winds and currents, which
cannot be equated with rights of sovereignty over the G
said areas, in the Exclusive Economic Zone. It also
provides for the Union of India to exercise other ancillary
rights which only clothes the Union of India with
sovereign rights and not rights of sovereignty in the
Exclusive Economic Zone. The said position is reinforced H
600 SUPREME COURT REPORTS [2013) 4 S.C.R.

A under Sections 6 and 7 of the Maritime Zones Ac:t, 1976,
which also provides that India's sovereignty extends over
its Territorial Waters while, the position is diff'erent in
respect of the Exclusive Economic Zone. Therefore, it
cannot be said that Article 59 of UNCLAS permits States
B to assert rights or jurisdiction beyond those sp.ecifically
provided in the Convention. [Para 99] [655-G-H; 656-A-D]

7. The incident of firing from the Italian ves:sel on the
Indian shipping vessel having occurred within the
Contiguous Zone, the Union of India is entitled to
C prosecute the two Italian marines under the crimiinal justice
system prevalent in the country. However, the same is
subject to the provisions of Article 100 of UNC:LOS 1982.
The "Declaration on Principles of International Law
Concerning Family Relations and Cooperaticm between
D States in accordance with the Charter of the United
Nations" has to be conducted only at the !level of the
Federal or Central Government and cannot be> the subject
matter of a proceeding initiated by a Provincial/State
Government. [Para 100] [656-F-H; 657-A]
E
8. The two accused in the case a.re marines
belonging to the Royal Italian Navy, who had been
deputed on the merchant shipping vessel having Flag of
Italy, purportedly in pursuance of an Italian Decree of
F Parliament, pursuant to which an Agreement was entered
into between the Republic of Italy on the •one hand and
the Italian Shipowners' Confederation (Confiitarma) on the
other. This takes the dispute to a different level where the
Governments of the two countries becomu involved. The
Republic of Italy has, in fact, from the very beginning,
G asserted its right to try the two marines and has already
commenced proceedings against them in Italy under
penal provisions. In such a scenario, the State of Kerala,
as one of the units of a federal unit, would not have any
authority to try the accused who were outside the
H jurisdiction of the State unit. The extension of Section
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 601
AND ORS.
188A l.P.C. to the Exclusive Maritime Zone, of which the A
Contiguous Zone is also a part, also did not extend the
authority of the Kerala State Police beyond the territorial
waters, which is the limit of its area of operations. [Para
86) [649-D-H; 650-A]
B
9. The incident took place at a distance of about 20.5
nautical miles from the coastline of the State of Kerala, a
unit within the Indian Union. The incident, therefore,
occurred not within the territorial waters of the coastline
of the State of Kerala, but within the Contiguous Zone, C
over which the State Police of the State of Kerala
ordinarily has no jurisdiction. The State of Kerala had no
jurisdiction over the Contiguous Zone and even if the
provisions of IPC and Cr.P.C. were extended to the
Contiguous Zone, it did not vest the State of Kerala with D
the powers to investigate and, thereafter, to try the
offence. What, in effect, is the result of such extension is
that the Union of India extended the application of IPC
and Cr.P.C. to the Contiguous Zone, which entitled the
Union of India to take cognizance of, investigate and
prosecute persons who commit any infraction of the E
domestic laws within the Contiguous Zone. However,
such a power is not vested with the State of Kerala. [Para
84) [648-C-D, F-H; 649-A]

10. Therefore, the State of Kerala has no jurisdiction F
to investigate into the incident. But till such time as it is
proved that the provisions of Article 100 of the UNCLOS
1982 apply to the facts of this case, it is the Union of India
which has jurisdiction to proceed with the investigation
and trial of the Petitioner Nos.2 and 3 in the Writ Petition. G
The Union of India is, therefore, directed, in consultation
with the Chief Justice of India, to set up a Special Court
to try this case and to dispose of the same in accordance
with the provisions of the Maritime Zones Act, 1976, the
Indian Penal Code, the Code of Criminal Procedure and
H
602 SUPREME COURT REPORTS [2013] 4 S.C.R.

A most importantly, the provisions of UNCLOS 198:2, where
there is no conflict between the domestic 'law and
UNCLOS 1982. The pending proceedings before the
Chief Judicial Magistrate shall stand transferred to the
Special Court to be constituted in terms of this jiudgment.
B [Para 101] [657·A·D]

11. This will not prevent the Petitioners hel'ein in the
two matters from invoking the provisions of .11.rticle 100
of UNCLOS 1982, upon adducing evidence Ir~ support
C thereof, whereupon the question of jurisdiction of the
Union of India to Investigate into the Incident and for the
Courts in India to try the accused may be reconsidered.
If It is found that both the Republic of ltally and the
Republic of India have concurrent jurisdictic•n over the
matter, then these directions will continue to hold good.
D [Para 101] 657-D-F]

Aban Loyd Chiles Offshore Limited vs. Union of India
and Anr. (2008) 11 SCC 439; 2008 (6) SCR 468; Maganbhai
lshwarbhai Patel vs. Union of India and Anr. (11970) 3 SCC
E 400: 1969 (3) SCR 254; Vishaka and Ors. vs. State of
Rajasthan and Ors. (1997) 6 SCC 241: 1997 (3)1 Suppl. SCR
404; Gramophone Co. of India vs. Birendra Balladur Pandey
(1984) 2 SCC 534: 1984 (2) SCR 664; Hukumchand Mills
vs. State of Madhya Pradesh AIR 1964 SC 13:!9: 1964 SCR
F 857; N. Mani vs. Sangeetha Theatre and Ors. (2004) 12 SCC
278; Mobarik Ali Ahmad vs. State of Bombay AIR 1957 SC
857: 1958 SCR 328 - referred to.
S.S. Lotus (Fr. v. Turk.) (1927) P.C.l.J.; Trendtex Trading
G Corporation vs. Bank of Nigeria (1997) 1 Q.B. 529 - referred
to.
Per J. Chelameswar. J: !Supplementinal
HELD: 1.1. The authority of the Sovereign to make
H laws and enforce them against Its subjects is undoubted
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 603
AND ORS.
in constitutional theory. Though written Constitutions A
prescribe limitations, either express or implied on such
authority, under the Constitution of India, such limitations
with respect to territory are provided under Article 245(1)
of the Constitution. [Para 3] [658-E; 659-A]
1.2. Article 297 of the Indian Constitution deals with B
'maritime territory'. Article 297(3) authorises the
Parliament to specify from time to time the limits of various
maritime zones such as, territorial waters, continental
shelf, etc. Clauses (1) and (2) of the said article make a
declaration that all lands, minerals and other things of C
value and all other resources shall vest in the Union of
India. [Paras 5 and 6] [659-F; 660-A-B]
1.3. Two things follow from the declaration under
Article 297. Firstly, India asserts its authority not only on D
the land mass of the territory of India specified under
Article 1, but also over the areas specified under Article
297. It authorises the Parliament to specify the limits of
such areas (maritime zones). The nature of the said
authority may not be the same for the various maritime E
zones indicated in Article 297 .. However, the
preponderance of judicial authority appears to be that the
sovereignty of the coastal state extends to the territorial
waters. [Para 7] [661-A-C]
1.4. The sovereignty of a 'coastal State' extends to F
Its territorial waters, is a well accepted principle of
International Law though there Is no uniformly shared
legal norm establishing the limit of the territorial waters -
"maritime territory". Whether the maritime territory Is also
a part of the national territory of the State is a question G
• on which difference of opinion exists. [Para 8] [661-C~E;
662-A]
1.5. The Territorial Waters, Continental Shelf,
Exclusive Economic Zone and Other Maritime Zones Act,
80 of 1976 whereby limit of territorial waters was fixed at H
604 SUPREME COURT REPORTS [2013) 4 S.C.R.

A 12, was made by the Parliament in exercise of the
authority conferred under Article 297. Except Sections 5
and 7, rest of the Sections of the Act, came into force on
26-08-1976. Sections 5 and 7 came into force,
subsequently, on 15-01-1977, by virtue of a notification
B contemplated under Section 1(2). Section 3(1) clleclares
that the sovereignty of India extends, and has always
extended, to the territorial waters of India. [Para 'I OJ [662-
D-F]
1.6. In view of the scheme of the Maritime 2:one Act,
C as apparent from Section 5(5)(a) and Section 7(7)(a) there
of the application of "any enactment for the time being
in force in India" (like the Indian Penal Code and the Code
of Criminal Procedure), is not automatic either to the
contiguous zone or exclusive economic zone. It requires
D a notification in the official gazette of India to 1~xtend the
application of such enactments to such maritime zone.
The Maritime Zones Act further declares that once such
a notification is issued, the enactment whose ;application
is so extended "shall have effect as If' the 1;ontiguous
E zone or exclusive economic zone, as the ca,se may be,
"is part of the territory of India". Creation of s;uch a legal
fiction is certainly within the authority of thfi Sovereign
Legislative Body. [Para 13] [664-E; 665-A-C]
1.7. Though Article 245 speaks of the authority of the
F Parliament to make laws for the territory of l1ndia, Article
245(2) expressly declares - "No law made by Parliament
shall be deemed to be invalid on the ground that it would
have extra territorial operation". The declaration is a fetter
on the jurisdiction of the Municipal Courts including
G Constitutional Courts to either declare a law to be
unconstitutional or decllne to give effect to such a law on
the ground of extra territoriality. [Para 16] [666-B-D]
1.8. Section 2 read with Section 4 of IPC makes the
H provisions of the Code applicable to the offences
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 605
AND ORS.
committed "in any pJace without and beyond" the A
territory of India; (1) by a citizen of India or (2) on any ship
or aircraft registered in India, irrespective of its location,
by any person not necessarily a citizen. Such a
declaration. was made as long back as in 1898. By an
amendment in 2009 to the said Section, the Code is s
extended to any person in any place "without and
beyond the territory of India", committing an offence
targeting a computer resource located in India. Similarly,
Parliament enacted the Suppression of Unlawful Acts
Against Safety of Maritime Navigation And Fixed C
Platforms on Continental Shelf Act, 2002. Thereby the
legislature expressly extended the application of the said
Act beyond the liryiits of the territorial waters of India.
[Paras 20 and 21]_[667-E; 668-A-C, E]
1.9. The Parliament always asserted its authority to D
make laws, which are applicable to persons, who are not
corporeally present within the territory of India (whether
or not they are citizens) when such persons commit acts
which affect the legitimate interests of this country. In
furtherance of such assertion and in order to facilitate the E
prosecution of the offenders contemplated under Section
4(1) and (2) of IPC, Section 188 of Cr.P.C. prescribes the
jurisdiction to deal with such offences. Each one of the
above referred enactments also contains a provision
parallel to Section 188. [Paras 25 and 26] [670-B-D] F
R v. Baster 1971 2 All ER 359 (C.A.) - referred to.
1.10. The Parliament, undoubtedly, has the power to
make and apply the law to persons, who are not citizens
of India, committing acts, which constitute offences G
prescribed by the law of this country, irrespective of the
fact whether such acts are committed within the territory
of India or irrespective of the fact that the offender is
corporeally present or not within the Indian territory at the
- time of the commission of the offence. It is not open for H
606 SUPREME COURT REPORTS (2013] 4 S.C.R.

A any Municipal Court including this Court to decline to
apply the law on the ground that the law is extra-tl~rritorial
in operation when the language of the enactment clearly
extends the application of the law. [Para 29) [672-A-C]
B.K. Wadeyar v. Mis. Daulatram Rameshwarla/ 1~IR 1961
B SC 311: 1961 SCR 924 - relied on.
Aban Loyd Chilies Offshore Ltd. v. Union of India and
Ors. (2008) 11 SCC 439: 2008 (6) SCR 468 - refe1rred to.
2.1. The expression "incident of na~·igation"
C occurring under Article 97 of the UNCLOS, 198:2 is not a
defined expression. Therefore, necessarily the meaning
of the expression must be ascertained from the context
and scheme of the relevant provisions of the UNCLOS.
[Para 35) [673-E-FJ
D
2.2. Irrespective of the meaning of the expression
"incident of navigation", Article 97 has no application to
the exclusive economic zone. Even under UNCLOS,
Article 57 stipulates that "the exclusive economic zone
shall not extend beyond 200 nautical mileis from the
E baselines from which the breadth of the territorial sea is
measured". It follows from a combined readin" of Articles
55 and 57 that within the limit of 200 nautical miles,
measured as indicated under Article 57, the authority of
each coastal State to prescribe the limits c1f exclusive
F economic zone is internationally recognised. The
declaration under Section 7(1) of the Marltlm11 Zones Act,
which stipulates the limit of the exclusive economic zone,
is perfectly in tune with the terms of UNCLOl3. Therefore,
Article 97 of UNCLOS has no application to the exclusive
G economic zone, of which the contiguous ze>ne is a part
and that is the area relevant, in the context of the Incident
in question. For that reason, It cannot be .said that the
incident, which resulted in the death of two Indians is an
"incident of navigation" within the meaning of Article 97
H of the United Nations Convention on the Law of tt\e Sea
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 607
AND·ORS.
and therefore, no penal proceedings may be instituted A
against the two marines except before the Judicial
authorities of the 'Flag State' or the State of which the
marines are nationals. [Paras 2(1) and 36] (658-0-E; 674-
0-G]
B
Case Law Reference:
In the Judgment of ALTAMAS KABIR, CJI.
2008 (6) SCR 468 referred to Para 30, 50
(1927) P.C.l.J referred to Para 33, 95, c
98
1969 (3) SCR 254. referred to Para 40
1997 (3) Suppl. SCR 404 referred to Para 40
D
1984 (2) SCR 664 referred to Para 50
1964 SCR 857 referred to Para 58
(2004) 12 sec 278 referred to Para 66
(1997) 1 Q.B. 529 referred to Para 67 E
1958 SCR 328 referred to Para 76
. In the judgement of J. Chelameswar, J:
1961 SCR 924 relied on Para 8
F
1971 2 All ER 359 (C.A.) referred to Para 27
2008 (6) SCR 468 referred to Para 30, 33
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
135 of 2012. G
Under Article 32 of the Constitution of iNdia.
WITH
SLP (C) No. 20370 of 2012.
H
608 SUPREME COURT REPORTS [2013) 4 S.C.R.

A Gourab K. Banerji, ASG, Harish N. Salve, Suhail Dutt, V.
Giri, Diljeet Titus, Viplav Sharma, Baljit Singh Kalha, Ujjwal
Shanna, Abhixit Singh, Achint Singh Gyani, Ankur Manchanda,
Jagjit Singh Chhabra, Raghav Shankar, Jaswant Per-raye, S.A.
Haseeb, Parul Kumar, Sahil Tagotra, Jhuma Sen, SL1priya Jain,
B D.S. Mahra, 8. Krishna Prasad, Gautam Jha, Arjun Krishnan,
Ramesh Babu, M.R., Mohammed Sadique T.A., Sus.hrut Jindal,
Rekha Pandey, Rashmi Malhotra, Sahil Tagotra, R Malhotra
for the appearing parties.

The Judgments of the Court was delivered by
c
ALTAMAS KABIR, CJI. 1. The past decade has
witnessed a sharp increase in acts of piracy on t'he high seas
off the Coast of Somalia and even in the vicinity of the Minicoy
islands forming part of the Lakshadweep archipelago. In an
D effort to counter piracy and to ensure freedom of navigation of
merchant shipping and for the protection of vessels flying the
Italian flag in transit in International seas, the R1apublic of Italy
enacted Government Decree 107 of 2011, converted into Law
of Parliament of Italy No.130 of 2nd August, 2011, to protect
E Italian ships from piracy in International seas. Article 5 of the
said legislation provides for deployment of Italian Military Navy
Contingents on Italian vessels flying the Italian flag, to counter
the growing menace of piracy on the seas. Pur,suant to the said
law of Parliament of Italy No.130 of 2nd August, 2011, a
Protocol of Agreement was purportedly entered into on 11th
F October, 2011, between the Ministry of Defence - Naval Staff
and Italian Shipowners' Confederation (Confitanna), pursuant
to which the Petitioner Nos.2 and 3 in the writ Petition, who are
also the Petitioner Nos.1 and 2 in the Special Leave Petition,
were deployed along with four others, as "Team Latorre", on
G board the "M.V. Enrica Lexie" on 6th February, 2012, to protect
the said vessel and to embark thereon on 11th February, 2011,
from Galle in Sri Lanka. The said Military Deployment Order
was sent by the Italian Navy General Staff to the concerned
Military Attaches in New Delhi, India and Muscat, Oman. A
H change in the disembarkation plans, whemby the planned port
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 609
AND ORS. [ALTAMAS KABIR, CJI.]
of disembarkation was shifted from Muscat to Djibouti, was A
also intimated to the concerned Attaches.

2. While the aforesaid vessel, with the Military Protection
Detachment on board, was heading for Djibouti on 15th
February, 2012, it came across an Indian fishing vessel, St. B
Antony, which it allegedly mistook to be a pirate vessel, at a
distance of about 20.5 nautical miles from the Indian sea coast
off the State of Kerala, and on account of firing from the Italian
vessel, two persons in the Indian fishing vessel were killed. After
the said incident, the Italian vessel continued on its scheduled C
course to Djibouti.

When the vessel had proceeded about 38 nautical miles
on the High Seas towards Djibouti, it received a telephone
message, as well as an e-mail, from the Maritime Rescue Co-
ordination Centre, Mumbai, asking it to return to Cochin Port D
to assist with the enquiry into the incident. Responding to the
message, the M.V. Enrica Lexie altered its course and came
to Cochin Port on 16th February, 2012. Upon docking in
Cochin, the Master of the vessel was informed that First
Information Report (F.1.R.) No.2 of 2012 had been lodged with E
the Circle Inspector, Neendakara, Kollam, Kerala, under
Section 302 read with Section 34 of the Indian Penal Code
(l.P .C.) in respect of the firing incident leading to the death of
the two Indian fishermen. On 19th February, 2012, Massimilano
Latorre and Salvatore Girone, the Petitioner Nos.2 and 3 in Writ F
Petition No.135 of 2012, were arrested by the Circle Inspector
of Police, Coastal Police Station, Neendakara, Kollam, from
Willington Island and have been in judicial custody ever since.

3. On 20th February, 2012, the petitioner Nos.2 and 3 were
produced before the Chief Judicial Magistrate (C.J.M.), Kollam, G
by the Circle Inspector of Police, Coastal Police Station,
Neendakara, who prayed for remand of the accused to judicial
custody.

H
610 SUPREME COURT REPORTS [2013] 4 S.C.R.

A 4. The petitioners thereupon filed Writ Petition No.4542 of
2012 before the Kerala High Court, under Article 226 of the
Constitution, challenging the jurisdiction of the State of Kerala
and the Circle Inspector of Police, Kallam District, K.erala, to
register the F.l.R. and to conduct investigation on the basis
B thereof or to arrest the petitioner Nos.2 and 3 and to• produce
them before the Magistrate. The Writ Petitioners prayed for
quashing of F.l.R. No.2 of 2012 on the file of the Circle Inspector
of Police, Neendakara, Kallam District, as the same was
purportedly without jurisdiction, contrary to law and null and void.
c The Writ Petitioners also prayed for a declaration that their
arrest and detention and all proceedings taken against them
were without jurisdiction, contrary to law and, themfore, void.
A further prayer was made for the release of the: Petitioner
Nos.2 and 3 from the case.
D 5. Between 22nd and 26th February, 20'12, several
relatives of the deceased sought impleadment in the Writ
Petition and were impleaded as Additional R•espondents
Nos.4, 5 and 6.

E 6. During the pendency of the Writ Petition, the Presenting
Officer within the Tribunal of Rome, Republic of Italy, intimated
the Ministry of Defence of Italy on 24th February, 2012, that
Criminal Proceedings No.9463 of 2012 had been initiated
against the Petitioner Nos.2 and 3 in Italy. It was indicated that
F punishment for the crime of murder under Section 575 of the
Italian Penal Code is imprisonment of at least ~!1 years.

7. After entering appearance in the writ petition, the Union
of India and its Investigating Agency filed joint statements
therein on 28th February, 2012, on behalf of the Union of India
G and the Coast Guard, with the Kerala High Court, along with
the Boarding Officers Report dated 16th-17th February, 2012,
as an annexure. On 5th March, 2012, the Consul General filed
a further affidavit on behalf of the Republic of Italy, annexing
additional documents in support of its claim that the accused
H had acted in an official capacity. In the affidavit, the Consul
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 611
AND ORS. [ALTAMAS KABIR, CJI.]
General reasserted that Italy had exclusive jurisdiction over the A
writ petitioners and invoked sovereign and functional immunity.

8. The Kerala High Court heard the matter and directed
the Petitioners to file their additional written submissions, which
were duly filed on 2nd April, 2012, whereupon the High Court B
reserved its judgment. However, in the meantime, since the
judgment in the Writ Petition was not forthcoming, the
Petitioners filed the present Writ Petition under Article 32 of the
Constitution of India on 19th April, 2012, inter alia, for the
following reliefs:- C I
"(i) Declare that any action by all the Respondents in
relation to the alleged incident referred to in Para
6 and 7 above, under the Criminal Procedure Code
or any other Indian law, would be illegal and ultra
vires and violative of Articles 14 and 21 of the D
Constitution of India; and

(ii) Declare that the continued detention of Petitioners
2 and 3 by the State of Kerala is illegal and ultra
vires being violative of the principles of sovereign E
immunity and also violative of Art. 14 and 21 of the
Constitution of India; and

(iii) Issue writ of Mandamus and/or any other suitable
writ, order or direction under Article 32 directing that
the Union of India take all steps as may be F
necessary to secure custody of Petitioners 2 and
3 and make over their custody to Petitioner No.1."

9. During the pendency of the said Writ Petition in this
Court, the Kerala State Police filed charge sheet against the G
Petitioner Nos.2 and 3 herein on 18th May, 2012 under
Sections 302, 307, 427 read with Section 34 Indian Penal
Code and Section 3 of the Suppression of Unlawful Acts
against Safety of Maritime Navigation and Fixed Platforms on
Continental Shelf Act, 2002, hereinafter referred to as 'the SUA H
612 SUPREME COURT REPORTS [2013] 4 S.C.R.

A Act'. On 29th May, 2012, the learned Single Judge of the Kerala
High Court dismissed Writ Petition (Civil) No.4542 1)f 2012 on
two grounds. The learned Single Judge held that under the
Notification No. SO 67/E dated 27th August, 1981, the entire
Indian Penal Code had been extended to the Exclusive
B Economic Zone and the territorial jurisdiction of t'ne State of
Kerala was not limited to 12 nautical miles only. The learned
Single Judge also held that under the provisions of the SUA
Act, the State of Kerala has jurisdiction upto 200 nautical miles
from the Indian coast, falling within the Exclusive Economic
c Zone of India.

10. Aggrieved by the aforesaid judgment of th1~ Kerala High
Court, the Petitioners filed Special Leave PEitition (Civil)
No.20370 of 2012, challenging the order of dismissal of their
Writ Petition by the Kerala High Court.
D
11 . As will be evident from what has been narrated
hereinabove, the subject matter and the reliefs prayed for in
Writ Petition (Civil)No.4542 of 2012 before thre Kerala High
Court and S.L.P.(C) No.20370 of 2012 are the same as those
E sought in Writ Petition (Civil) No.135 of 2012.

12. Accordingly, the Special Leave Petitic•n and the Writ
Petition have been heard together.

13. Simply stated, the case of the Petitioriers is, that the
F Petitioner Nos.2 and 3, had been discharging their duties as
members of the Italian Armed Forces, in accordance with the
principles of Public International Law and an Italian National Law
requiring the presence of armed personnel on board
commercial vessels to protect them from att:acks of piracy. It
G is also the Petitioners' case that the determination of
international disputes and responsibilities as well as
proceedings connected therewith, must necessarily be
between the Sovereign Governments of the two countries and
not constituent elements of a Federal Structure. In other words,
H in cases of international disputes, the State units/governments
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 613
AND ORS. [ALTAMAS KABIR, CJI.]
within a federal structure, could not be regarded as entities A
entitled to maintain or participate in proceedings relating to the
sovereign acts of one nation against another, nor could such
status be conferred upon them by the Federal/Central
Government. It is also the case of the writ petitioners that the
proceedings, if any, in such cases, could only be initiated by B
the Union at its discretion. Consequently, the arrest and
continued detention of the Petitioner Nos.2 and 3 by the State
of Kerala is unlawful and based on a misconception of the law
relating to disputes between two sovereign nations.

14. Appearing for the writ petitioners, Mr. Harish N. Salve, C
learned Senior Advocate, contended that the acquiescence of
the Union of India to the unlawful arrest and detention of the
Petitioner Nos.2 and 3 by the State of Kerala was in violation
of the long standing Customary International Law, Principles of
International Comity and Sovereign Equality Amongst States, D
as contained in the United Nations General Assembly
Resolution titled "Declaration on Principles of International Law
Concerning Friendly Relations.and Cooperation between States
in accordance with the Charter of the United Nations". Mr. Salve
contended that these aforesaid principles require that any E
proceeding, whether diplomatic or judicial, where the conduct
of a foreign nation in the exercise of its sovereign functions is
questioned, has to be conducted only at the level of the Federal
or Central Government and could not be the subject matter of
a proceeding initiated by a Provincial/State Government. F

15. Mr. Salve submitted that the incident which occurred
on 15th February, 2012, was an incident between two nation
States and any dispute arising therefrom would be governed
by the principles of International Legal Responsibility under G
which the rights and obligations of the parties will be those
existing between the Republic of India and the Republic of Italy.
Mr. Salve submitted that no legal relationship exists between
the Republic of Italy and the State of Kerala and by continued
detention of the members of the Armed Forces of the Republic
H
614 SUPREME COURT REPORTS [2013] 4 S.C.R.

A of Italy, acting in discharge of their official duties, th13 State of
Kerala had acted in a manner contrary to Public lntiernational
Law, as well as the provisions of the Constitution of India.

16. Learned counsel submitted that the Scheme of the
Territorial Waters, Continental Shelf, Exclusive Economic Zone
8
and Other Maritime Zones Act, 1976, hereinafter referred to as
"the Maritime Zones Act, 1976", contemplates limited
jurisdiction of the Central Government over each of the Maritime
Zones divided into the ''Territorial Waters", the "Contiguous
Zones" and the "Exclusive Economic Zones''. Learned counsel
C also submitted that Sections 3, 5, 7 and 15 of the Act
contemplate the existence of such division of zones as a direct
consequence of rights guaranteed under Public International
Law, including the United Nations Convention on the Law of the
Sea, hereinafter referred to as, "the UNCLOS''.
D
17. Mr. Salve submitted that the extent of jurisdiction of a
State beyond its coastline is provided in Section 3 of the
Maritime Zones Act, 1976. Sub-section (2) of Section 3
indicates that the limit of the Territorial Waters is the line every
E point of which is at a distance of twelve nautical miles from the
nearest point of the appropriate baseline. Section 5 of the
aforesaid Act provides that the Contiguous Zone of India is an
area beyond and adjacent to the Territorial Waters and the limit
of the Contiguous Zone is the line every point of which is at a
F distance of twenty-four nautical miles from the n,earest point of
the baseline referred to in Sub-section (2) of Section 3. Section
7 of the Act defines Exclusive Economic Zone as an area
beyond and adjacent to the Territorial Waters, and the limit of
such zone is two hundred nautical miles from the baseline
G referred to in sub-section (2) of Section 3. In respect of each
of the three above-mentioned zones, the Central Government
has been empowered whenever it considers necessary so to
do, having regard to International Law and State practice, alter,
by notification in the Official Gazette, the limit of the said zones.

H 18. Mr. Salve pointed out that Section 4 of the Maritime
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 615
AND ORS .. [ALTAMAS KABIR, CJI.]
Zones Act, 1976, specially provides for use of Territorial Waters A
by foreign ships and in terms of Sub-section (1 ), all foreign
ships (other than warships including sub-marines and other
underwater vehicles) are entitled to a right of innocent passage
through the Territorial Waters, so long as such passage was
innocent and not prejudicial to the peace, good order or security B
of India.

19. Apart from the above, Mr. Salve also pointed out that
Section 6 of the aforesaid Act provides that the Continental
Shelf of India comprises the seabed and subsoil of the
submarine areas that extend beyond the limit of its territorial C
waters throughout the natural prolongation of its land territory
to the outer edge of the continental margin or to a distance of
two hundred nautical miles from the baseline referred to in Sub-
section (2) of Section 3, where the outer edge of the continental
margin does not extend up to that distance. Sub-section (2) D
provides that India has and always had full and exclusive
sovereign rights in respect of its Continental Shelf.

20. According to Mr. Salve, the incident having occurred
at a place which was 20.5 nautical miles from the coast of India, E
it was outside the territorial waters though within the Contiguous
Zone and the Exclusive Economic Zone, as indicated
hereinabove. Accordingly, by no.means could it be said that
the incident occurred within the jurisdiction of one of the federal
units of the Union of India. Mr. Salve urged that the incident, F
therefore, occurred in a zone in which the Central Government
is entitled under the Maritime Zones Act, 1976, as well as
UNCLOS, to exercise sovereign rights, not amounting· to
sovereignty. Mr. Salve submitted that the Act nowhere
contemplates conferral of jurisdiction on any coastal unit forming G
part of any Maritime Zone adjacent to its coast. Accordingly,
the arrest and detention of the Petitioner Nos.2 and 3 ·by the
police authorities in the State of Kerala was unlawful and was
liable to be quashed. Mr. Salve also went on to urge that
notwithstanding the provisions of the Maritime Zones Act, 1976,
India, as a signatory of the UNCLOS, is also boand by the H
616 SUPREME COURT REPORTS [2013) 4 S.C.R.

A provisions thereof. Submitting that since the provisions of the
1976 Act and also UNCLOS recognise the primacy of Flag
State jurisdiction, the Petitioner No.1 i.e. the Republic of Italy,
has the preemptive right to try the Petitioner Nos.2 and 3 under
its local laws.
B
21. Mr. Salve submitted that provisions, similar to those
in the Maritime Zones Act, 1976, relating to the extent of
territorial waters and internal waters and the right of "innocent
passage'', are provided in Articles 8, 17 and 18 of the
Convention. Mr. Salve submitted that Article 17 se1ts down in
c clear terms that subject to the Convention, ships of all States,
whether coastal or land-locked, enjoy the right of innocent
passage through the territorial sea. "Innocent passage" has
been defined in Article 18 to mean navigation through the
territorial sea for the purpose of:
D
(a) traversing that sea without entering internal waters
or calling at a roadstead or part facility outside
internal waters; or

E (b) proceeding to or from internal waters or a call at
such roadstead or part facility.

22. The said definition has been qualified to indicate that
such passage would be continuous and expeditious, but would
include stopping and anchoring, only in so far as tile same are
F incidental to ordinary navigation or are rendered necessary for
force majeure or distress or for the purpose of rendering
assistance to persons, ships or aircraft in danger or distress.
Mr. Salve pointed out that Article 19 describes innocent
passage to be such so long as it is not prejudicial to the peace,
G good order or security of the coastal State and takes place in
conformity with the Convention and other rules of International
law.

Learned counsel pointed out that Article 24 of the
H Convention contained an assurance that the coastal States
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 617
AND ORS. [ALTAMAS KABIR, CJI.]
would not hamper the innocent passage of foreign ships A
through the territorial sea, except in accordance with the
Convention.

23. As to criminal jurisdiction on board a foreign ship, Mr.
Salve referred to Article 27 of UNCLOS, which provides that B
the criminal jurisdiction of the coastal State should not be
exercised on board a foreign ship passing through the territorial
sea to arrest any person or to conduct any investigation in
connection with any crime committed on board the ship during
its passage, save only in cases where the consequences of the
crime extend to the coastal State; if the crime is of a kind to C
disturb the peace of the country or the good order of the
territorial sea; if the assistance of the local authorities has been
requested by the Master of the ship or by a diplomatic agent
or consular officer of the flag State, or if such measures are
necessary for the suppression of illicit traffic in narcotic drugs D
or psychotropic substances. Mr. Salve, however, urged that
none of the aforesaid conditions were attracted in the facts of
this case so as to attract the criminal jurisdiction of a State
within the federal structure of the Union of India.
E
24. Another Article of some significance is Article 33 of
the Convention under Section 4, which deals with Contiguous
Zones. Mr. Salve submitted that Article 33 provides that in a
zone contiguous to its territorial sea, a coastal State may
exercise the control necessary to: F

(i} prevent infringement of its customs, fiscal,
immigration or sanitary laws and regulations within
its territory or territorial sea;

(ii} punish infringement of the above laws and G
regulations committed within its territory or
territorial sea.

However, the Contiguous Zone may not extend beyond 24
nautical miles from the baseline from which the breadth of the H
618 SUPREME COURT REPORTS [2013] 4 S.C.R.

A territorial sea is measured. Accordingly, since the incident
occurred outside the territorial waters, the State of Kerala
exceeded its jurisdiction and authority in acting on the basis of
the FIR lodged against the Petitioner Nos.2 and 3 at
Neendakara, Kollam, and in keeping them iri continued
B detention.
25. Referring to Part V of the Convention, whic:h deals with
Exclusive Economic Zones, Mr. Salve pointed out that Article
56 under the said Part indicates the rights, juri!1diction and
C duties of the coastal State in the Exclusive Economic Zone so
as to include the State's sovereign rights for the purpose of
exploring and exploiting, conserving and managin1~ the natural
resources, whether living or non-living, of the waters. superjacent
to the seabed and of the seabed and its subsc1il, and with
regard to other activities for the economic expl,oitation and
D exploration of the zone, such as ,the production of energy from
the water, currents and winds. The said Article also indicates
that the State has jurisdiction in regard to:
(i) the establishment and use of artific:ial islands,
E installations and structures;
(ii) marine scientific research;

(iii) the protection and preservation of the marine
environment;
F
and other rights and duties provided for in the Convention. In
regard to artificial islands, Mr. Salve pointed out that under
Clause 8 of Article 59, artificial islands, installations and
structures do not possess the status of islands. They have no
G territorial sea of their own and their presence does not affect
the delimitation of the territorial sea, the Exclusive Economic
Zone or the Continental Shelf.
26. Dealing with the concept of High Seas, contained in
Part VII of the Convention, Mr. Salve submitted that Articles 88
H and 89 of the Convention provide that the High Seas have to
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 619
AND ORS. [ALTAMAS KABIR, CJI.]
be reserved for peaceful purposes and that no State may validly A
purport to subject any part of the same to its sovereignty. Mr.
Salve submitted that under Articles 91, 92 and 94 of the
Convention, every State was entitled to fix the conditions for the
grant of its nationality to ships, for the registration of ships in
its territory, and for the right to fly its flag. Article 91 provides B
that ships have the nationality of the State whose flag they are
entitled to fly and there must exist a genuine link between the
State and the ship. Mr. Salve pointed out that Article 94 casts
several duties on the flag State and one of the most significant
clauses of Article 94 is clause 7 which provides that each State C
shall cause an inquiry to be held by or before a suitably qualified
person or persons into every marine casualty or incident of
navigation (emphasis supplied) on the High Seas involving a
ship flying its flag and causing loss of life or serious injury to
nationals of another State or serious damage to ships or
installations of another State or to the marine environment. The D
flag State and the other State shall cooperate in the conduct of
any inquiry held by the concerned State into any such marine
casualty or incident of navigation. The same provisions are also
reflected in Article 97 of the Convention, in which it has been
indicated that in the event of a collision or any other incident of E
navigation concerning a ship on the High Seas, involving the
penal or disciplinary responsibility of the Master or of any other
person in the service of the ship, no penal or disciplinary
proceedings may be instituted against such person except
before the judicial or administrative authorities either of the flag F
State or of the State of which such person is a national.
27. Lastly, Mr. Salve referred to Article 100, which may be
of relevance to the facts of this case, as it requires all States
to cooperate to the fullest extent in the repression of piracy on G
the High Seas or in any other place outside the jurisdiction of
any State.
28. Mr. Salve submitted that the publication of a Notification
by the Ministry of Home Affairs on 27th August, 1981, under
H
620 SUPREME COURT REPORTS [2013] 4 S.C.R.

A Sub-section (7) of Section 7 of the Maritime Zones Ac:t, 1976,
extending the application of Section 188 of the Code of
Criminal Procedure, 1973, to the Exclusive Economic Zone,
created various difficulties, since the said Notificatio11 was a
departure from the provisions of Part V of UNCLOS which
provides that a coastal State enjoys only sovereign ri~Jhts and
8
not sovereignty over the Exclusive Economic Zone.

29. Referring to the interim report of the Ministry of
Shipping, Government of India, in respect of the incident, Mr.
Salve pointed out that the fishing boat, MFB St. Antony, about
C 12 meters long, was owned by one Mr. Freidy, who was also
working as the Sarang of the boat, which is registered at
Colachel, Kanyakumari District, Tamil Nadu, by the Assistant
Director of Fisheries. The crew of the boat were issued Identity
Cards by the Trivandrum Matsyathozhilali Forum, but the fishing
D boat is not registered under the Indian Merchant Shipping Act,
1958, and was not flying the Indian Flag at the timt! of the
incident. Furthermore, at the time of the incident, the ship was
at a minimum distance of about 20 nautical miles f1·om the
Indian coast. The ship was coasting in Indian territorial waters
E in order to avoid any encounter with pirate boats as the area
was declared to be a High Risk Area of Piracy. Mr. Salve urged
that in the report it was also indicated that the area comes
under the high alert zone for piracy attacks, as declared by the
UKMTO, and the Watch Officers were maintaining their normal
F pirate watch. Apart from the normal navigational Watch
Keepers, the ship also had NMP Marines on the bridge on anti-
pirate watch as stated by the Second Mate and Master. The
NMP Marines were keeping their own watch as per their
schedule and it was not the responsibility of the Master to keep
G track of their regimen. The NMP Marines were supposed to
take independent decisions as per Article 5 of the agreement
between the Italian Defence Ministry and the Italian ship
Owners Association. The report also indicated that the fishing
boat came within a distance of 100 meters of the Italian Ship,
H causing the crew of the ship to believe that they were under
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 621
AND ORS. [ALTAMAS KABIR, CJI.]
pirate attack and in the circumstances of the moment the A
marines, who are independent of the orders of the Master,
opened fire, killing the two Indian fishermen.

Subsequently, while the Ship was moving away, it received
a phone call from the MRCC, Mumbai Duty Controller, B
instructing the ship to proceed towards Kochi Anchorage to give
a statement and witness with regard to the incident. Mr. Salve
submitted that pursuant thereto the Italian vessel, instead of
proceeding further into the high seas, returned to Cochin Port
and was, thereafter, detained by the Kerala police authorities. C

Mr. Salve submitted that it was necessary to construe the
provisions of the Maritime Zones Act, 1976, in the light of the
UNCLOS, which gives rise to the question as to which of the
provisions would have primacy in case of conflict.
D
30. Referring to the decision of this Court in Aban Loyd
Chiles Offshore Limited vs. Union of India & Anr. ((2008} 11
SCC 439], Mr. Salve submitted that in the said decision, this
Court had held that from a reading of Sections 6 and 7 of the
Maritime Zones Act, 1976, it is clear that India has been given E
only certain limited sovereign rights in respect of its Continental
Shelf and Exclusive Economic Zone, which cannot be equated
to extending the sovereignty of India over its Continental Shelf
and Exclusive Economic Zone, as in the case of Territorial
Waters. However, Sections 6(6} and 7(7} of the Maritime Zones F
Act, 1976, empower the Central Government, by notification, to
extend the enactment in force in India, with such restrictions and
modifications which it thinks fit, to its Continental Shelf and
Exclusive Economic Zone and also provides that an enactment
so extended shall have effect as if the Continental Shelf or the
Exclusive Economic Zone, to which the Act has been extended, G
is a part of the territory of India. Sections 6(6} and 7(7} create
a fiction by which the Continental Shelf and the Exclusive
Economic Zone are deemed to be a part of India for the
purposes of such enactments which are extended to those
areas bv the Central Government by issuing a notification. H
622 SUPREME COURT REPORTS (2013) 4 S.C.R.

A 31. Mr. Salve submitted that it was also held that the
coastal State has no sovereignty in the territorial sense of
dominion over Contiguous Zones, but it exercises sovereign
rights for the purpose of exploring the Continental Shelf and
exploiting its natural resources. It has jurisdiction to Emforce its
B fiscal, revenue and penal laws by intercepting vessel~1 engaged
in suspected smuggling or other illegal activities attributable to
a violation of the existing laws. The waters which extend beyond
the Contiguous Zone are traditionally the domain of high seas
or open sea which juristically speaking, enjoy the status of
c International waters where all States enjoy traditional high seas
freedoms, including freedom of navigation. The coastal States
can exercise their right of search, seizure or confii1cation of
vessels for violation of its customs or fiscal or penal laws in the
Contiguous Zone, but it cannot exercise these rights once the
vessel in question enters the high seas, since it has no right of
0
hot pursuit, except where the vessel is engaged in piic1tical acts,
which make it liable for arrest and condemnation within the
seas. Accordingly, altho;igh, the coastal States do not exercise
sovereignty over the Contiguous Zone, they are e1ntitled to
E exercise sovereign rights and take appropriate steps to protect
its revenues and like matters.
32. Relying on the aforesaid observations made by this
Court in the aforesaid case, Mr. Salve submitted that the
provisions of the Maritime Zones Act, 1976, would have to be
F read in harmony with the provisions of UNCLOS. Mr. Salve
submitted that the reference made in paragraphs 77 and 99
of the judgment dealt with policing powers in the d•~signated
areas of the Contiguous Zone for the application of the Customs
Act and not as a reference to general policing powers
G exercised by the State police within the Union of India. Mr.
Salve submitted that it would thus be clear, that if an offence
was committed beyond the Contiguous Zone, the State
concerned could not proceed beyond 24 nautical miles from
the baseline in pursuit of the vessel alleged to have committed
H the offence. Mr. Salve submitted that it was not contemplated
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 623
AND ORS. [ALTAMAS KABIR, CJI.)
under the Maritime Zones Act, 1976, that the policing powers A
of a coastal State would proceed beyond the Contiguous Zone
and into the Exclusive Economic Zone or High Seas, though
certain provisions of the Customs Act and the Customs Tariff
Act had been extended to areas declared as "designated
areas" under the said Act. B

33. Mr. Salve contended that the stand of the Union of India
has been that the provisions of UNCLOS cannot be applied in
the facts of the case, since the Maritime Zones Act, 1976,
which is a domestic Act, is a departure from UNCLOS, and C
Article 27 of UNCLOS was not a part of the Indian domestic
law. Further, in anticipation of the submissions on behalf of the
Respondents, Mr. Salve urged that the judgment of the
Permanent Court of International Justice in the Case of S.S.
Lotus (Fr. v. Turk.) [(1927) P.C.l.J.) which involved claims
between France and Turkey continued to be good law, save D
and except to the extent it had been overridden, but only in
relation to collisions under Article 97 of the UNCLOS.

34. Mr. Salve submitted that the aforesaid contentions
made on behalf of the Union of India were misconceived, E
because they were not taken earlier and were not to be found
in the affidavit affirmed by the Union of India. Mr. Salve
submitted that the Maritime Zones Act, 1976, far from being a
departure, is in complete conformity with the principles of
UNCLOS. The Act is limited to spelling out the geographical F
boundaries of the various zones, namely, the Territorial Waters,
the Contiguous Zone, the Exclusive Economic Zone, and the
Continental Shelf, etc. and the nature of rights available to India
in respect of each of the zones is spelled out in the Act in a
manner which is in complete conformity with the UNCLOS. Mr. G
Salve urged that India was not only a signatory to but had also
ratified the Convention. The learned counsel submitted that the
Maritime Zones Act, 1976, was based, to a large extent, on the
draft of UNCLOS which had been prepared before 1976, but
it is settled law in India that once a Convention of this kind is
H
624 SUPREME COURT REPORTS [2013] 4 S.C.R.

A ratified, the municipal law on similar issues should be construed
in harmony with the Convention, unless there were express
provisions to the contrary.

35. Simply stated, Mr. Salve's submissions boil down to
the question as to whether the sovereignty of India would extend
8
to the Exclusive Economic Zone, which extends to 200 nautical
miles from the baseline of the coast of the State of Kerala.

36. Mr. Salve then urged that if Sub-section (2) of Section
4 l.P.C. was to be invoked by the Union of India for 'exercising
C jurisdiction over a person present on a vessel flying the Indian
flag, it must respect a similar right asserted by other jurisdictions
indicating that Article 21 of the Convention recognises the right
of innocent passage which is to be respected by all nations,
who are signatories to UNCLOS. As a result, if a vessel is in
D innocent passage and an incident occurs between two foreign
citizens which has no consequences upon the coastal State, it
is obvious that no jurisdiction could be asserted ove>r such an
act on the ground that it amounts to violation of the Indian Penal
Code or that the Indian Courts would have jurisdiction to try
E such criminal offences. Mr. Salve submitted that the a1::ceptance
of such an assertion would negate the rights of innocent
passage.

37. Mr. Salve submitted that once it is accepted that it must
F be Parliament's intention to recognise the Exclusive Economic
Zone and to create a legal regime for exercise of the sovereign
rights in respect of the said zone, then, it must necessarily follow
that a Parliamentary intent has to be read in conjunction with
Article 55 of the UNCLOS. It must then follow that the :sovereign
rights in the said zone must be read subject to the specific legal
G regime established in Part V of UNCLOS.

38. As far as the Lotus decision is concerned, II/Ir. Salve
contended that such decision had been rendered in the facts
involving the collision of a French vessel with a Turkish vessel,
H which ultimately led to the 1952 Geneva Conventic1n for the
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 625
AND ORS. [ALTAMAS KABIR, CJI.]
unification of certain rules relating to penal jurisdiction in A
matters of collisions, which overruled the application of the
prfnciples of concurrent jurisdiction over marine collisions. Mr.
Salve urged that a reading of Articles 91, 92, 94 and 97 of
UNCLOS clearly establishes that any principle of concurrent
jurisdiction that may have been recognised as a principle of B
Public International Law stands displaced by the express
provisions of UN CLOS. Learned counsel pointed out that it was
not in dispute that the St. Antony, the Indian vessel involved in
the incident, was registered under the Tamil Nadu Fishing laws
and not under the Indian Merchant Shipping Act, 1958, which c
would allow it to travel beyond the territorial waters of the
respective State of the Indian Union, where the vessel was
registered.

39. Mr. Salve lastly contended that the stand of the Union
of India that since no specific law had been enacted in India in D
terms of UNCLOS, the said Convention was not binding on
India, was wholly misconceived. Mr. Salve urged that in earlier
matters, this Court had ruled that although Conventions, such
as these, have not been adopted by legislation, the principles
incorporated therein, are themselves derived from the common E
law of nations as embodying the felt necessities of international
trade and are, therefore, a part of the common law of India and
applicable for the enforcement of maritime claims against
foreign ships.
F
40. Mr. Salve also relied on the Constitution Bench
decision of this Court in Maganbhai lshwarbhai Patel vs. Union
of India and Another [(1970) 3 SCC 400], in which this Court
had inter alia held that unless there be a law in conflict with the
Treaty, the Treaty must stand. Also citing the decision of this G
Court in Vishaka and Others vs. State of Rajasthan and
Others [(1997) 6 SCC 241 ], this Court held that international
conventions and norms are to be read into constitutional rights
which are absent in domestic law, so long as there is no
inconsistency with such domestic law.
H
626 SUPREME COURT REPORTS [2013] 4 S.C.R.

A 41. Mr. Salve urged that Section 3 of the Maritime Zones
Act, 1976, recognises the notion of sovereignty, but, limits it to
12 nautical miles from the nearest point of the appropriate
baseline.

42. The essence of Mr. Salve's submissions is focussed
8
on the question as to whether the sovereignty of India and
consequently the penal jurisdiction of Indian Courts, E!xlends to
the Exclusive Economic Zone or whether India has only
sovereign rights over the Continental Shelf and the area
covered by the Exclusive Economic Zone. A rnading of
C Sections 6 and 7 of the Maritime Zones Act, 1976, makes it
clear that India's sovereignty extends over its territorial waters,
but the position is different in the case of the Continental Shelf
and Exclusive Economic Zone of the country. The C•::>ntinental
Shelf of India comprises the seabed beyond the territorial waters
D to a distance of 200 nautical miles. The Exclusive Economic
Zone represents the sea or waters over the Continental Shelf.
Mr. Salve submitted that the language of the various enactments
and the manner in which the same have been interpreted, has
given rise to the larger question of sovereign immunity.
E
Mr. Salve submitted that while Italy signed the UNCLOS
in 1973 and ratified it in January, 1995, India signed the
Convention in 1982 and ratified the same on 29th June, 1995.
Referring to Sections 2 and 4 of the Indian Penal Code read
F with Section 1.79 of the Code of Criminal Procedure, Mr. Salve
urged that the same would stand excluded in their operation to
the domestic Courts on the ground of sovereign immunity.

43. Mr. Salve lastly urged that in order to understand the
presence of the Italian marines on board the M.V. Enrica Lexie,
G it would be necessary to refer to the Protocol Aoreement
entered into between the Ministry of Defence - Naval Staff and
Italian Shipowners' Confederation (Confitarma) on 11th
October, 2011. Mr. Salve pointed out that the said A!Jreement
was entered into pursuant to various legislative and presidential
H decrees which were issued on the premise that piracy and
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 627
AND ORS. [ALTAMAS KABIR, CJI.]
armed plundering were serious 'threats to safety in navigation A
for crew and carried merchandise, with significant after-effects
on freights and marine insurance, the commercial costs of
which may affect the national community. Accordingly, it was
decided to sign the Protocol Agreement, in order that the
parties may look for and find all or any measure suitable to B
facilitate that the embarkation and disembarkation of Military
Protection Squads, hereinafter referred to as "NMPs", on to and
from ships in the traffic areas within the area defined by the
Ministry of Defence by Ministerial Decree of 1st September,
2011. Mr. Salve pointed out that the said Agreement provides c
for the presence of Italian marines, belonging to the Italian Navy,
to provide protection to private commercial ships against the
surge of piracy. Mr. Salve submitted that, in fact, the navy was
of the view that the activity covered by the Agreement/Protocol
could also be offered to national shipowners other than D
Confitarma and other class associations, following acceptance
of the Convention.

44. Mr. Salve pointed out that Article 3 of the Conventioi1
provided for the supply of the protection service, in which on
an application for embarkation of the military protection squads, E
the Ministry of Defence would consider several aspects,
including the stipulation that the ship's Master would remain
responsible only for choices concerning safety of navigation and
manoeuvre, including escape manoeuvres, but would not be
responsible for the choices relating to operations involved in F
countering a piracy attack. Mr. Salve submitted that, in other
words, in case of piracy attacks, the Master of the ship would
have no control over the actions of the NMPs provided by the
Italian Government. Mr. Salve submitted that the deployment
order of the team of marines, including the Writ Petitioner Nos.2 G
and 3, is contained in OP 06145Z FEB 12 ZDS from the Italian
Navy General Staff to the Italian Defence Attache in New Delhi,
India, and several other Italian Defence Attaches in different
countries, which has been made Annexure P-3 to the Special
Leave Petition. In this regard, Mr. Salve referred to a Note H
628 SUPREME COURT REPORTS [201 :I] 4 S.C.R.

A Verbale No.95/553 issued by the Embassy of Italy in New Delhi
to the Ministry of External Affairs, Government of Ind a, referring
to the case involving the vessel in question. Sincei the same
encapsulates in a short compass the case of the Petitioners,
the same in its entirety is extracted hereinbelow:
B
"EMBASSY OF ITALY
NEW DELHI

NOTE VERBALE

c 95/553

The Embassy of Italy presents its compliments to the
Ministry of External Affairs, Government of lndlia and has
the honour to refer to the case of the ship Enric:a Lexie as
per Note Verbale n.71 dated February 18th 2012.
D
The Embassy of Italy would like to recall that
according to principles of customary international law,
recognized by several decisions of International Courts.
State organs enjoy jurisdictional immunity for acts
E committed in the exercise of their official func;tions. The
Italian Navy Military Department that operated in
international waters on board of the ship Enrica Lexie must
be considered as an organ of the Italian State.

Their conduct has been carried out in thE! fulfillment
F
of their official duties in accordance with national
regulations (Italian Act nr.107/2011), directives, instructions
and orders, as well as the pertinent rules on piracy
contained in the 1982 UN Convention on the Law of the
Sea and in the relevant UN Security Council Resolutions
G on the Piracy off the Horn of Africa.

The Embassy of Italy welcomes the steps taken by
the Chief Judicial Magistrate in Kallam in order to protect
the life and honour of the Italian Military Navy Personnel
H currently held in judicial custody on remand. The Embassy
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 629
AND ORS. [ALTAMAS KABIR, CJI.]
of Italy also welcomes the cooperative approach on the A
issue of the examination of the weapons taken by the
Magistrate.

The Embassy of Italy nevertheless reasserts the
Italian exclusiv~ jurisdiction in respect of the said military B
personnel. It wishes to inform that investigations by both
the Italian ord!Jtary and military judicial authorities have
already been initiated. Therefore, it urges for the release
of the Italian Navy Military Personnel and the unimpeded
departure from the Indian Territory. They have entered
Indian territorfal waters and harbor simply as a Military C
Force [)etachment officially embarked on the Italian vessel
Enrica Lexie in order to cooperate with Indian authorities
in the investigation of an alleged piracy episode. The entry
in Indian territorial waters was upon initial invitation and
then under direction of Indian Authorities. D

The Embassy of Italy, while reiterating the sovereign
right of a State to employ its military personnel in ongoing
antipiracy military protection of national flagged merchant
ship in international waters, underlines that the same right E
is not impaired by the ongoing national investigations
invorving-ftalian Navy Military Personnel.

The Italian Navy Military Personnel, currently held in
ju!fjctal custody on remand, was carrying out official
F
fl.lflctions for the protection of the vessel from piracy and
armed robbery in the extraterritorial maritime zones which
at the relevant time were considered as "risk area", taking
also in consideration information provided by IMO and
other relevant multinational organization. Thus, while GI
acknowledging the obligations of Italy under international
law, including the obligation to cooperate with Indian
authorities for the most comprehensive and mutually
satisfactory investigation of the event, the Embassy of Italy
recalls that the conduct of Italian Navy Military Personnel
officially acting in the performance of their duties should
630 SUPREME COURT REPORTS [2013] 4 S.C.R.

A not be open to judgment scrutiny in front of any court other
than the Italian ones.

The Embassy of Italy, New Delhi, avails itself of this
opportunity to renew to the Ministry of External Affairs,
Government of India, the assurances of its highest
B
consideration.

New Delhi, 29th February, 2012.
Consulate General of Italy, Mumbai."

C 45. In fact, shorn of all legalese, the aforesaid note
emphasises the stand of the Italian Government that the conduct
of the Petitioner Nos.2 and 3 was in fulfilment of their official
duties in accordance with national regulations, directives,
instructions and orders, as well as the rules of piracy contained
D in UNCLOS and the relevant UN Security Council Resolutions
on Piracy off the Hom of Africa.

46. Mr. Salve submitted that in the special facts of the case,
the Petitioners were entitled to the reliefs prayed for in the Writ
E Petition and the Special Leave Petition.

47. Mr. Gourab Banerji, Additional Solicitor General, who
appeared for the Union of India, focussed his submissions on
two issues raised by the Petitioners, namely,:-

F (i) Whether Indian Courts have territorial jurisdiction to
try Petitioner Nos.2 and 3 under the provisions of
the Indian Penal Code, 1860?

(ii) If so, whether the Writ Petitioners are entitled to
claim sovereign immunity?
G
48. Mr. Banerji submitted that stripped of all
embellishments, the bare facts of the incident reveal that on 15th
February, 2012, FIR No.2 of 2012 was registered with the
Coastal Police Station, Neendakara, Kollam, under Section
H 302 read with Section 34 l.P.C. alleging that a fishing vessel,
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 631
AND ORS. [ALTAMAS KABIR, CJI.]
"St. Antony", was fired at by persons on board a passing ship, A
as a result of which, out of the 11 fishermen on board, two were
killed instantaneously. It was alleged that the ship in question
was M.V. Enrica Lexie. The detailed facts pertaining to the
incident could be found in the statement dated 28th February,
2012, filed by the Coast Guard before the Kerala High Court B
and the Charge-sheet filed on 18th May, 2012.

49. The defence of the Petitioners is that the Petitioner
Nos.2 and 3 were members of the Military Protection
Detachment deployed on the Italian vessel and had taken C
action to protect the vessel against a pirate attack.

50. Mr. Banerji submitted that it had been urged on behalf
of the Petitioners that the Union of India had departed from its
pleadings in urging that the Maritime Zones Act, 1976, was a
departure from and inconsistent with UNCLOS. Mr. Banerji D
submitted that the legal position in this regard had already been
clarified in paragraphs 100 to 102 of the decision in Aban
Loyd's case (supra) wherein this Court had re-emphasised the
position that the Court could look into the provisions of
international treaties, and that such an issue is no longer res E
integra. In Gramophone Co. of India vs. Birendra Bahadur
Pandey [(1984) 2 SCC 534], this Court had held that even in
the absence of municipal law, the treaties/conventions could not
only be looked into, but could also be used to interpret municipal
laws so as to bring them in consonance with international law. F

51. Mr. Banerji urged that as far as the Union of India was
concerned, an attempt must necessarily be made in the first
instance, to harmonise the Maritime Zones Act, 1976 with the
UNCLOS. If this was not possible and there was no alternative
but a conflict between municipal law and the international G
convention, then the provisions of the 1976 Act would prevail.
Mr. Banerji urged that primacy in interpretation by a domestic
Court, must, in the first instance, be given to the Maritime Zones
Act, 1976 rather than the UNCLOS. Questioning the approach
of the Petitioners in relying firstly on the UNCLOS and only, H
632 SUPREME COURT REPORTS [2013) 4 S.C.R.

A thereafter, on the provisions of the Maritime Zones Act, 1976,
Mr. Banerji submitted that such approach was misconceived
and was contrary to the precepts of Public International Law.

52. Mr. Banerji submitted that the case of the Petitioners
B that the Indian Courts had no jurisdiction to take cognizance of
the offence which is alleged to have taken place in the
Contiguous Zone, which was beyond the territorial waters of
India, as far as India was concerned, was misconceived. The
Contiguous Zone would also be deemed to be a part of the
territory of India, inasmuch as, the Indian Penal Code and the
C Code of Criminal Procedure had been extended to the
Contiguous Zone/Exclusive Economic Zone by virtue of the
Notification dated 27th August, 1981, issued under Section 7(7)
of the Maritime Zones Act, 1976. Mr. Banerji submitted that
according to the Union of India, the domestic law is not
D inconsistent with the International law and in fact even as a
matter of international law, the Indian Courts have jurisdiction
to try the present offence. The learned Additional Solicitor
General submitted that in order to determine the issue of
territorial jurisdiction, it would be necessary to conjointly read
E the provisions of Section 2 l.P.C., the Maritime Zones Act, 1976
and the 27th August. 1981 Notification and all attempts had to
be made to harmonise the said provisions with the UNCLOS.
However, if a conflict was inevitable, the domestic laws must
prevail over the International Conventions and Agreements.
F
53. In this regard, Mr. Banerji first referred to the provisions
of Section 2 of the Indian Penal Code which deals with
punishment of offences committed within India. In this context,
Mr. Banerji also referred to the Maritime Zones Act, 1976, and
more particularly, Section 7(7) thereof, under which the
G notification dated 27th August, 1981, had been published by
the Ministry of Home Affairs, extending the provisions of Section
188-A of the Code of Criminal Procedure, 1973, to the
Exclusive Economic Zone.

H 54. Mr. Banerji urged that it appears to have slipped the
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 633
AND ORS. [ALTAMAS KABIR, CJI.]
notice of all concerned that the Notifications wh 1-;h had been A
applied in the Aban Loyd's case (supra) were under Section
7(6) of the 1976 Act and there appeared to be some confusion
on the part of the Petitioners in regard to the scope of Sub-
sections (6) and (7) of Section 7 thereof. Mr. Banerji urged that
the judgment in Aban Loyd's case (supra) has to be understood B
in the light of the facts of that case where the issue was whether
oil rigs situated in the Exclusive Economic Zone were foreign
going vessels and, therefore, entitled to consume imported
stores without payment of customs duty. In the said set of facts
it was held by this Court that the territory of India for the purpose c
of customs duty was not confined to the land and territorial
waters alone, but also notionally extended to the "designated
areas" outside the territorial waters. Mr. Banerji urged that the
notification dated 27th August, 1981, issued by the Ministry of
Home Affairs which had been relied upon by the Union of India, D
has not been issued for designated areas alone, but for the
entire Exclusive Economic Zone to enable it to exercise and
protect Indian sovereign rights of exploitation of living natural
resources, and more specifically its fishing rights, therein.

55. Mr. Banerji submitted that the Notification of 27th E
August, 1981, had been promulgated in exercise of powers
conferred by Section 7(7) of the Maritime Zones Act, 1976. Mr.
Banerji also submitted that the Indian Penal Code and the
Code of Criminal Procedure had been extended by the Central
Government to the Exclusive Economic Zone. The Schedule to F
the Notification is in two parts. Part I provides the list of
enactments extended, whereas Part II provides the provision
for facilitating the enforcement of the said Acts. Accordingly,
while Part I of the Schedule to the Notification is relatable to
Section 7(7)(a) of the Act, Part II of the Schedule is relatable G
to Section 7(7)(b) thereof.

56. The learned Additional Solicitor General submitted that
the case of the Union of India rests on two alternative planks.
According to one interpretation, the bare reading of Section H
634 SUPREME COURT REPORTS [2013] 4 S.C.R.

A 7(7) and the Notification suggests that once the 1.P.C. has been
extended to the Exclusive Economic Zone, which includes the
Contiguous Zone, the Indian Courts have territorial jurisdiction
to try offences committed within the Contiguous Zone. Another
plank of the case of the Union of India, involves a contextual
B interpretation of Section 7(7) and the 1981 Notification. Mr.
Banerji submitted that presuming that the Notification provides
for the extension of Indian law relating to only those matters
specified in Section 7(4) of the Act, the Indian Courts would
also have territorial jurisdiction in respect of the present case.
c Mr. Banerji submitted that notwithstanding the submission
made on behalf of the Petitioners that such an interpretation
would be contrary to the provisions of UNCLOS, particularly,
Article 56 thereof, the same failed to notice Article 59 which
permits States to assert rights or jurisdiction beyond those
specifically provided in the Convention. Alternatively, even in
0
terms of the contextual interpretation of Section 7(7) of the Act,
the same would also establish the territorial jurisdiction of the
Indian Courts. Mr. Banerji submitted that even on a reading of
Section 7(4) of the Maritime Zones Act, 1976, the Petitioners
had laid emphasis on Sub-Clause (b), although, various other
[:; rights and privileges had also been reserved to the Indian
Union. It was urged that the importance of the other Sub-
Clauses, and, in particular, (a) and (e) would fully establish the
territorial jurisdiction of the Indian Courts to try the offence
involving the unlawful killing of two Indian citizens on board an
F Indian vessel. Mr. Banerji also urged that reading Section 7(4)
of the Act, in harmony with Section 7(7) thereof, would include
within its ambit the power to extend enactments for the
purposes of protecting exploration, exploitation, conservation
and management of natural resources which include fishing
G rights. Accordingly, if the provisions of l.P.C. and the Cr.P.C.
have been extended throughout the Exclusive Economic Zone,
inter alia, for the purpose of protecting fishing rights under
Section 7(4)(a), the same would include extending legislation
for the safety and security of the Indian fishermen. By opening
H fire on the Indian fishing vessel and killing two of the fishermen
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 635
AND ORS. [ALTAMAS KABIR, CJI.]
on board the said vessel within the Contiguous Zone, the A
Petitioner Nos.2 and 3 made themselves liable to be tried by
the Indian Courts under the domestic laws.

57. On the question as to whether the State of Kerala had
jurisdiction to try the offence, since the incident had taken place B
in the zone contiguous to the territorial waters off the coast of
Kerala, Mr. Banerji submitted that the Kerala Courts derived
jurisdiction in the matter from Section 183 of the Code of
Criminal Procedure, which has also been extended to the
Exclusive Economic Zone by the 1981 Notification and relates C
to offences committed on journeys or voyages. Mr. Banerji
submitted that when such an offence is committed, it could be
inquired into or tried by a court through or into whose local
jurisdiction the person or thing passed in the course of that
journey or voyage. Mr. Banerji submitted that the voyage
contemplated under the said provision is not the voyage of the D
Enrica Lexie, but the voyage of St. Antony.

58. Apart from the above, the main case of the Union of
India is that on a plain reading of the language of Section 7(7)
or on a contextual interpretation thereof, the Republic of India E
has jurisdiction to try the Petitioner Nos.2 and 3 in its domestic
courts. Even the 1981 Notification could be read down and
related to Section 5 of the 1976 Act. Referring to the decision
of this court in Hukumchand Mills Vs. State of Madhya
Pradesh [AIR 1964 SC 1329] and N. Mani Vs. Sangeetha F
Theatre & Ors. ((2004) 12 SCC 278], Mr. Banerji urged that if
the executive authority had the requisite power under the law,
and if the action taken by the executive could be justified under
some other power, mere reference to a wrong provision of law
would not vitiate the exercise of power by the executive, so long G
as the said power exists.

59. Regarding the applicability of Section 4 of the Indian
Penal Code to the facts of the case, Mr. Banerji urged that the
provisions of the l.P.C. would, in any event, apply to any citizen
of India in any place without and beyond India or to any person H
636 SUPREME COURT REPORTS [2013] 4 S.C.R.

A on any ship or aircraft registered in India, wherever it may be.
Mr. Banerji submitted that the Explanation to the Section makes
it clear that the word "offence" includes every act committed
outside India which, if committed in India, would be punishable
under the said Code.
B
60. Mr. Banerji submitted that although the learned
Advocate General of the State of Kerala had conceded before
the learned Single Judge of the Kerala High Court that Section
4 of the l.P.C. would not apply to the facts of the case, the Union
of India was not a party to such concession, which, in any event,
C amounted to a concession in law. Mr. Banerji urged that the
words "aboard" or "on board" are not used in Section 4(2)
l.P.C. and an unduly restrictive interpretation of the said Section
would require both the victim and the perpetrator to be aboard
the same ship or aircraft, which could lead to consequences
D where pirate, hijacker or terrorist, who fires upon an innocent
Indian citizen within an Indian ship or aircraft, would escape
prosecution in India. Mr. Banerji contended that the provisions
of Section 4(2) l.P.C. has to be read with Section 188 Cr.P.C.,
which subsequently stipulates that where an offence is
E committed outside India by a citizen of India, whether on the
high seas or elsewhere, or by a person not being such citizen,
on any ship or aircraft registered in India, he may be dealt with
in respect of such offence as if it had been committed at any
place within India at which he may be found. Mr. Banerji
F submitted that in view of the concession made on behalf of the
State of Kerala, the question of the scope of Section 4 l.P.C.
could be left open to be decided in an appropriate case.

61. Mr. Banerji submitted that, although a good deal of
emphasis had been laid by the Petitioners on the observation
G contained in the Shipping Ministry's Interim Report that the
fishing vessel was not registered under the Merchant Shipping
Act, 1958, but under a local law pertaining to the State of Tamil
Nadu, the same was only a red herring, as the Kerala State
Fishing Laws do not permit fishing vessels to sail beyond the
H territorial waters of their respective States.
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 637
AND ORS. [ALTAMAS KABIR, CJI.]
Mr. Banerji urged that such a submission may have been A
relevant in the context of Section 4(2) l.P.C., wherein the
expression "registered in India" had been used, but the same
would have no significance to the facts of this case, since the
said provisions were not being invoked for the purposes of this
case. The learned ASG contended that even if the fishing B
vessel had sailed beyond its permitted area of fishing, the same
was a matter of evidence, which stage had yet to arrive. Mr.
Banerji contended that, on the other hand, what was more
important were the provisions of the Maritime Zones of India
(Regulation of Fishing by Foreign Vessels) Act, 1981, wherein c
in the Statement of Objects and Reasons of the Act it has been
indicated that the Act was in the nature of umbrella legislation
and it was envisaged that separate legislation for dealing in
greater detail with the regulation, exploration and exploitation
of particular resources in the country's Maritime Zones and to D
prevent poaching activities of foreign fishing vessel to protect
the fishermen who were citizens of India, should be undertaken
in due course. In this context, Mr. Banerji further urged that the
provisions of the Merchant Shipping Act dealing with the
registration of Indian ships, do not include fishing vessels, E
which are treated as an entirely distinct and separate category
in Chapter XV-A of the said Act.

62. Mr. Banerji urged that the right of passage through
territorial waters is not the subject matter of dispute involved in
the facts of this case. On the other hand, Article 56 of UNCLOS, F
which has been relied upon by the Petitioners indicate that the
rights given to the coastal States are exhaustive. However,
while the Petitioners have laid emphasis on Article 56(1 )(b), the
Union of India has laid emphasis on Article 56(1)(a) read with
Article 73 of UNCLOS to justify the action taken against the G
accused. Mr. Banerji urged that even if Article 16 of UNCLOS
is given a restrictive meaning, the action of the Indian Courts
would be justified, inasmuch as, and action seeks to protect
the country's fishermen.
H
63. Mr. Banerji contended that Article 59 of the UNCLOS,
638 SUPREME COURT REPORTS [2013] 4 S.C.R.

A which deals with the basis for the resolution of conflicts
regarding the attribution of rights and jurisdiction in the Exclusive
Economic Zone, contemplates rights beyond those which are
attributable under the Convention. However, even if it could be
assumed that the rights asserted by India are beyond those
B indicated in Article 56 of UNCLOS, such conflict would have
to be resolved on the basis of equity and in the light of all
circumstances. Accordingly, even if both the Republic of Italy
and India had the power to prosecute the accused, it would be
much more convenient and appropriate for the trial to be
c conducted in India, having regard to the location of the incident
and the nature of the evidence and witnesses to be used
against the accused.

64. Responding to the invocation of Article 97 of UNCLOS
by the Petitioners, Mr. Banerji urged that whether under
D International law Italy ha~ exclusive jurisdiction to prosecute the
Petitioner Nos.2 and 3 is a question which would be relevant
in the event the Court found it necessary to invoke Section
Section 7(4)(e) of the Maritime Zones Act, 1976. Mr. Banerji
urged that in order to claim exclusive jurisdiction, the Republic
E of Italy had relied upon Article 97 of UNCLOS which, however,
dealt with the collision of shipping vessels and was
unconnected with any crime involving homicide. The learned
Additional Solicitor General pointed out that the title of Article
97 reads that it provides for Penal jurisdiction in matters of
F collision or any other incident of navigation and that, as
had been pointed out by Mr. Harish Salve, appearing for the
Petitioners, Article 97(1 ), inter alia, provides that in the event
of collision or any other incident of navigation concerning the
ship on the high seas, involving the penal or disciplinary
G responsibility of the Master or of any other person in the service
of the ship, no penal or disciplinary proceedings may be
instituted against such person except before the judicial or
administrative authorities either of the flag State or of the State
of which such person is a national. Mr. Banerji urged that the
H expression "incident of navigation" used in Article 97, did not
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 639
AND ORS. [ALTAMAS KABIR, CJI.)
contempl<ite a situation where a homicide takes place ana,' A
accordingly, the provisions of Article 97 of the UNCLOS would
not have any application to the facts of the present case.

65. On Article 11 of the Geneva Convention on the Law of
the Seas, 1958, Mr. Banerji submitted that the killing of an B
Indian national on board an Indian vessel could not be said to
be an incident of navigation, as understood under the said
Article which deals mainly with collision on the high seas.
Referring to Oppenheim on International Law [9th Edn. Vol.1 ),
Mr. Banerji submitted that the phrase "accident of navigation" C
has been used synonymously with "incident of navigation".
Consequently, the meaning of the expression "accident of
navigation" provided in the dictionary defines the same to mean
mishaps that are peculiar to travel by sea or to normal
navigation; accidents caused at sea by the action of the
elements, rather than by a failure to exercise good handling, D
working or navigation or a ship. Furthermore, if Article 97 of
UNCLOS is to include a homicide incident, Article 92 thereof
would be rendered otiose. Mr. Banerji submitted that the
decision in the Lotus case (supra) continued to be good law in
cases such as the present one. It was urged that under the E
Passive Personality principle, States may claim jurisdiction to
try an individual where actions might have affected nationals of
the State. Mr. Banerji submitted that various Articles of
UNCLOS do not support the case attempted to be made out
by the Republic of Italy, either on merits, or on the question of F
exclusive jurisdiction.

66. On the claim of sovereign immunity from criminal
prosecution, Mr. Banerji submitted that the Petitioner Nos.2 and
3 were not entitled to the same. Mr. Banerji submitted that while G
the International law was quite clear on the doctrine of sovereign
immunity, the important question to be considered in this case
is the extent of such sovereign immunity which could be applied
to the facts of this case. In support of his submissions, Mr.
Benerji referred to certain observations made by Lord Denning
H
640 SUPREME COURT REPORTS (2013] 4 S.C.R.

A M.R. in Trendtex Trading Corporation vs. Bank of Nigeria
((1997) 1 Q.B. 529], wherein it was observed as follows:-

"The aoctrine of sovereign immunity is based on
international law. It is one of the rules of international law
that a sovereign state should not be impleaded in the
B
courts of another sovereign state against its will. Like all
rules of international law, this rule is said to arise out of
the consensus of the civilized nations of the world. All
nations agree upon it. So it is part of the law of nations."

C Lord Denning, however, went on to observe that notion of
a consensus was merely fictional and there was no agreed
doctrine of sovereign immunity. However, this did not mean that
there was no rule of International law on the subject. It only
meant that there is difference of opinion as to what that rule is.
D Each country delimits for itself the bounds of sovereign
immunity. Each creates for itself the exceptions from it.

67. In this line of reasoning, Mr. Banerji submitted that the
provisions of Section 2 l.P.C. and its impact would have to be
considered before the impact of Customary International Law
E could be considered. Mr. Banerji pointed out that Section 2
1.P.C. begins with the words - "every person" which makes all
offenders, irrespective of nationality, punishable under the Code
and not otherwise, for every act or omission contrary to the
provisions thereof, of which he is found to be guilty within India.
F Reference was made by Mr. Bane~i to the decision of this Court
in Mobarik Ali Ahmad Vs. State of Bombay [AIR 1957 SC
857], wherein this Court had held that the exercise of criminal
jurisdiction depends on the location of the offence, and not on
the nationality of the alleged offender or his corporeal presence
G in India. This Court pointed out that the plain meaning of the
phrase "every person" is that it embraces all persons without
limitation and irrespective of nationality, allegiance, rank, status,
caste, colour or creed, except such as may be specially
exempted from criminal proceedings or punishment by virtue
H of specific provisions of the Constitution or any statutory
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 641
AND ORS. [ALTAMAS KABIR, CJI.]
provisions or some well-recognised principle of international A
law, such as foreign sovereigns, ambassadors, diplomatic
agents and so forth, accepted in the municipal law.

68. Going a step further, Mr. Banerji also referred to the
United Nations Privileges and Immunities Act, 1947, and the B
Diplomatic Relations (Vienna Convention) Act, 1972, which
gave certain diplomats, missions and their members diplomatic
immunity even from criminal jurisdiction. Mr. Banerji submitted
that the 1972 Act had been enacted to give effect to the Vienna
Convention on Diplomatic Relations, 1961. The effect of
Section 2 of the Act is to give the force of law in India to certain C
provisions set out in the Schedule to the Act. Mr. Banerji
specifically referred to Article 31 of the Convention, which is
extracted hereinbelow:-

"ARTICLE 31 D
1. A diplomatic agent shall enjoy immunity from the
criminal jurisdiction of the receiving State. He shall
also enjoy immunity from its civil and administrative
jurisdiction, except in the case of :
E
(a) A real action relating to private immovable
property situated in the territory of the receiving
State, unless he holds it on behalf of the sending
State for the purposes of the mission;
F
(b) An action relating to succession in which the
diplomatic agent is involved as executor,
administrator, heir or legatee as a private person
and not on behalf of the sending State;

(c) An action relating to any professional or G
commercial activity exercised by the diplomatic
agent in the receiving State outside his official
functions.
642 SUPREME COURT REPORTS [2013] 4 S.C.R.

A 2. A diplomatic agent is not obliged to give evidence
as a witness.

3. No measure of execution may be taken in respect
of a diplomatic agent except in the cases coming
under subparagraphs (a), (b) and (c) of paragraph
B
1 of this article, and provided that the measures
concerned can be taken without infringing the
inviolability of his person or of his residence.

4. The immunity of a diplomatic agent from the
c jurisdiction of the receiving State does not exempt
him from the jurisdiction of the sending State."

69. Mr. Banerji urged that as per the Policy of the
Government of India, no foreign arms or foreign private armed
0 guards or foreign armed forces personnel, accompanying
merchant vessels, are allowed diplomatic clearance. Nor is it
the policy of the Government of India to enter into any Status
of Forces Agreement (SOFA) by which foreign armed forces
are given immunity from criminal prosecution. Mr. Bane~i sought
E to emphasise the fact that the United Convention or
Jurisdictional Immunities of States and their Property, 2004, had
not come into force. Accordingly, the Petitioners' case that the
said Convention reflects the Customary International Law,
cannot be accepted.

F 70. Also referring to the decision in Pinochet's case No.3
[(2000) 1 AC 147], Mr. Banerji submitted that the said case
concerned the immunity of a former Head of State from the
criminal jurisdiction of another State, not the immunity of the
State itself in proceedings designed to establish its liability to
G damages. The learned ASG submitted that even thougl) the
Republic of Italy may claim sovereign immunity when sued in
an Indian Court for damages for the unlawful acts of its citizens,
it was clear that even if it is assumed that the Petitioner Nos.2
and 3 were acting under orders of the Italian Navy, there is no
H basis for any claim of immunity from criminal jurisdiction in the
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 643
AND ORS. [ALTAMAS KABIR, CJI.]
face of Section 2 l.P.C. Mr. Banerji submitted that the action of A
the Petitioner Nos.2 and 3 was not acta jure imperii but acta
res gestionis and hence the scope of the various Italian laws
would have to be established by way of evidence. Mr. Banerji
submitted that since the claim of functional immunity from
criminal jurisdiction was not maintainable, the Special Leave B
Petition was liable to be dismissed.

71. On the filing of the Writ Petition before this Court, being
Writ Petition (Civil) No.135 of 2012, Mr. Banerji urged that Writ
Petition (Civil) No.4542 of 2012, for the self-same reliefs had C
been filed by the same Petitioners before the Kerala High Court
and the same being dismissed, was now pending consideration
in the Special Leave Petition. Mr. Banerji submitted that the
Writ Petition was wholly misconceived since the Petitioners
were not entitled to pursue two parallel proceedings for the self-
same reliefs. It was submitted that the Writ Petition under Article D
32 was, therefore, liable to be rejected.

72. Appearing for the State of Kerala and the Investigating
Officer of the case, Mr. V. Giri, learned Senior Advocate,
submitted that on account of the death of Valentine alias E
Jelastine and Ajeesh Pink, two of the crew IT'embers on board
the Indian fishing vessel, St. Antony, Crime No.2 of 2012, was
registered by the Neendakara Coactal Police Station for
offences alleged to have been committed under Sections 302,
307 and 427 read with Section 34 1.P.C. and Section 3 of the F
Suppression of Unlawful Activities Act (SUA Act). On the return
of the Italian vessel to Kochi, the Petitioner Nos.2 and 3 were
placed under arrest by the Kerala Police on 19th February,
2012, in connection with the said incident and are now in judicial
custody. G

73. Mr. Giri submitted that the Maritime Zones Act, 1976,
was enacted by Parliament after the amendment of Article 297
of the Constitution by the 40th Constitution (Amendment) Act
of 1976, which provides for the vesting in the Union of all things
of value within territorial waters or the Continental Shelf and H
644 SUPREME COURT REPORTS [2013) 4 S.C.R.

A resources of the Exclusive Economic Zone. Mr. Giri urged that
the concept of territorial waters or Continental Shelf and
Exclusive Economic Zone originated in Article 297 and the
1976 Act in relation to the municipal laws of India.

B 74. Mr. Giri submitted that the Maritime Zones Act, 1976,
and the Notification dated 27th August, 1981, extending the
provisions of Section 188-A Cr.P.C. to the Exclusive Economic
Zone, were prior in point of time to UNCLOS 1982 and the date
on which India ratified the said convention. Mr. Giri submitted
C that despite the legislative competence of Parliament under
Article 253, read with Entry 14 of List I of the Seventh Schedule,
conferring on Parliament the power to enact laws to give effect
to the provisions of a Treaty, Agreement or Convention, to which
India is a party, the provisions of UNCLOS have not as yet been
made part of the Municipal Law of India. Mr. Giri urged that
D several International Conventions have been ratified by the
Indian Republic to give effect to provisions of Conventions to
which India is a signatory, such as the Diplomatic Relations
(Vienna Convention) Act, 1972, to give effect to the provisions
of the Vienna Convention on Diplomatic Relations, as also the
E Carriage by Air Act, 1972, to give effect to the provisions of
the Warsaw Convention. In the instant case, however, the Indian
Parliament has not enacted any law to give effect to the
provisions of UNCLOS 1982.

F 75. Mr. Giri, however, conceded that International
Conventions could not be ignored while enforcing the municipal
law dealing with the same subject matter and in any given case,
attempts were required to be made to harmonise the provisions
of the international law with the municipal law. However, in the
G case of conflict between the two, it is the municipal law which
would prevail. In this regard, reference was made to the
decision of this Court in what is commonly referred to as the
"Berubari case" [AIR 1960 SC 845], which was, in fact, a
Presidential Reference under Article 143(1) of the Constitution
H of India on the implementation of the India-Pakistan Agreement
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 645
AND ORS. [ALTAMAS KABIR, CJI.]
relating to Berubari Union and Exchange of Enclaves. In the A
said Reference, the issue involved was with regard to an
Agreement entered into between India and Pakistan on 10th
September, 1958, to remove certain border disputes which
included the division of Berubari Union No.12 and another. In
the said Reference, this Court was, inter alia, called upon to B
consider the question as to how a foreign Treaty and
Agreement could be given effect to. The said Reference was
answered by this Court by indicating that foreign Agreements
and Conventions could be made applicable to the municipal
laws in India, upon suitable legislation by Parliament in this c
regard.

76. Reference was also made to the decision of this Court
in Maganbhai lshwarbhai Patel Vs. Union of India [(1970) 3
sec 400), where the subject matter was the claim to a disputed
territory in the Rann of Kutch, which the Petitioners claimed was D
a part of India. It was noted that the Petitioners' claim had
originated from the very creation of the two dominions. It was
also the Petitioners' claim that India had all along exercised
effective administrative control over the territory and that giving
up a claim to it involved cession of Indian Territory which could E
only be effected by a constitutional amendment and not by an
executive order. /

77. Other judgments were also referred to, to which we may
refer if the need arises. Mr. Giri submitted that if a Treaty or an F
Agreement or even a Convention does not infringe the rights
of the citizens or does not in the wake of its implementation
modify any law, then it is open to the Executive to come to such
Treaty or Agreement and the Executive was quite competent
to issue orders, but if in consequence of the exercise of the G
executive power, rights of the citizens or others are restricted
or infringed or laws are modified, the exercise of power must
be supported by legislation.

78. It was also submitted that in the event the provisions
of UNCLOS were implemented without the sanction of H
646 SUPREME COURT REPORTS (2013) 4 S.C.R.

A Parliament, it would amount to modification of a municipal law
covered by the Maritime Zones Act, 1976. Mr. Giri contended
that the 1976 Act, which was enacted under Article 297 of the
Constitution, is a law which applies to the Territorial Waters,
Contiguous Zone, Continental Shelf and the Exclusive
B Economic Zone over the seas in which the incident had taken
place. If, therefore, the provisions of the Convention were to be
accepted as having conferred jurisdiction on the Indian judiciary,
such a situation would be contrary to the provisions of the
Maritime Zones Act, 1976, which contemplates the extension
c of domestic penal laws to the Exclusive Economic Zone in such
a manner that once extended, it would, for all applicable
pur.ppses, include such zone to be a part of the territory of India.
Mr. Giri submitted that adoption or implementation of t.he
provisions of UNCLOS would not only affect the rights of the
citizens of this country, but also give rise to a legal regime,
0
which would be inconsistent with the working of the Maritime
Zones Act, 1976, read with the notifications issued thereunder.
Consequently, neither the Indian Penal Code nor the Code of
Criminal Procedure or the notifications issued, making them
applicable to the Exclusive Economic Zone, as if they were part
E
of the territory of India, could be kept inoperative by UNCLOS,
1982.
79. On the question of conflict between the provisions of
the Maritime Zones Act and UNCLOS, Mr. Giri reiterated the
F submissions made by Mr. Gaurav Banerji, on behalf of the
Union of India, and contended that even if there are similarities
between some of the clauses of the 1976 Act and of the
UNCLOS, Article 97 of UNCLOS restricts the operation,
otherwise contemplated under the Territorial Waters Act, 1976.
G Mr. Giri also reiterated that in case of conflict between a Treaty
or a Convention and a municipal law, the latter shall always
prevail, except in certain given circumstances.

80. Regarding the jurisdiction of the State of Kerala to
prosecute the accused, Mr. Giri submitted that the State of
H Kerala and its officers were exercising jurisdiction as provided
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 647
AND ORS. [ALTAMAS KABIR, CJI.]
in the Indian Penal Code and the Code of Criminal Procedure. A
Mr. Giri submitted that the jurisdiction of the Neendakara Police
Station, situated in the District of Kollam in the State of Kerala,
and the concerned courts, is reserved under Sections 179 and
183 Cr.P .C. It was urged that at this stage the jurisdiction of
the Indian Courts would have to be ascertained on the premise B
that the version pleaded by the prosecution is correct and that
the fishing boat, St. Antony, which was berthed at Neendakara,
had commenced its voyage from within the jurisdiction of
Neendakara Police Station and had come back and berthed
at the same place after the incident of 15th February, 2012, and c
that the said facts brought the entire matter within the jurisdiction
of the Neendakara Police Station and, in consequence, the
Kerala State Police.

81. Mr. Giri lastly contended that the fact that "St. Antony"
is not registered under the Merchant Shipping Act, 1958, and D
is only a fishing boat, is of little consequence, since a fishing
boat is separately registered under Section 435C, Part XV-A
of the aforesaid Act. In this case, the fishing boat was
registered at Colachel in the State of Tamil Nadu under
Registration No. TN/15/MFB/2008. According to Mr. Giri, the E
question as to whether the fishing vessel was registered under
the Merchant Shipping Act or not was irrelevant for the purpose
of this case and, since the incident had taken place within 20.5
nautical miles from the Indian coastline, falling within the
Contiguous Zone/Exclusive Economic Zone of India, it must be F
deemed to be a part of the Indian territory for the purpose of
application of the Indian Penal Code and the Cr.P.C. by virtue
of Section 7(7) of the Maritime Zones Act read with Notification
S.0.671 (E) dated 27th August, 1981. Mr. Giri submitted that
the case made out in the Special Leave Petition did not merit G
any interference with the judgment of the learned Single Judge
of the Kerala High Court, nor was any interference called for in
the Writ Petition filed by the Petitioners in this Court. Learned
counsel submitted that both the petitions were liable to be
dismissed with appropriate cost. H
648 SUPREME COURT REPORTS [2013] 4 S.C.R.

A 82. Two issues, both relating to jurisdiction, fall for
determination in this case. While the first issue concerns the
jurisdiction of the Kerala State Police to investigate the incident
of shooting of the two Indian fishermen on board their fishing
vessel, the second issue, which is wider in its import, in view
B of the Public International Law, involves the question as to
whether the Courts of the Republic of Italy or the Indian Courts
have jurisdiction to try the accused.

83. We propose to deal with the jurisdiction of the Kerala
State Police to investigate the matter before dealing with the
C second and larger issue, the decision whereof depends on
various factors. One such factor is the location of the incident.

84. Admittedly, the incident took place at a distance of
about 20.5 nautical miles from the coastline of the State of
o Kerala, a unit within the Indian Union. The incident, therefore,
occurred not within the territorial waters of the coastline of the
State of Kerala, but within the Contiguous Zone, over which the
State Police of the State of Kerala ordinarily has no jurisdiction.
The submission made on behalf of the Union of India and the
E State of Kerala to the effect that with the extension of Section
188A of the Indian Penal Code to the Exclusive Economic
Zone, the provisions of the said Code, as also the Code of
Criminal Procedure, stood extended to the Contiguous Zone
also, thereby vesting the Kerala Police with the jurisdiction to
F investigate into the incident under the provisions thereof, is not
tenable. The State of Kerala had no jurisdiction over the
Contiguous Zone and even if the provisions of the Indian Penal
Code and the Code of Criminal Procedure Code were
extended to the Contiguous Zone, it did not vest the State of
Kerala with the powers to investigate and, thereafter, to try the
G offence. What, in effect, is the result of such extension is that
the Union of India extended the application of the Indian Penal
Code and the Code of Criminal Procedure to the Contiguous
Zone, which entitled the Union of India to take cognizance of,
investigate and prosecute persons who commit any infraction
H
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 649
AND ORS. [ALTAMAS KABIR, CJI.]
of the domestic laws within the Contiguous Zone. However, A
such a power is not vested with the State of Kerala.

85. The submissions advanced on behalf of the Union of
India as well as the State of Kerala that since the Indian fishing
vessel, the St. Antony, had proceeded on its fishing expedition B
from Neendakara in Kollam District and had returned thereto
after the incident of firing, the State of Kerala was entitled to
inquire into the incident, is equally untenable, since the cause
of action for the filing of the F.l.R. occurred outside the
jurisdiction of the Kerala Police under Section 154 of the C
Cr.P.C. The F.l.R. could have been lodged at Neendakara
Police station, but that did not vest the Kerala Police with
jurisdiction to investigate into the complaint. It is the Union of
India which was entitled in law to take up the investigation and
to take further steps in the matter.
D
86. Furthermore, in this case, one has to take into account
another angle which is an adjunct of Public International Law,
since the two accused in the case are marines belonging to
the Royal Italian Navy, who had been deputed on M.V. Enrica
Lexie, purportedly in pursuance of an Italian Decree of E
Parliament, pursuant to which an Agreement was entered into
between the Republic of Italy on the one hand and the Italian
Shipowners' Confederation (Confitarma) on the other. This
takes the dispute to a different level where the Governments
of the two countries become involved. The Republic of Italy has, F
in fact, from the very beginning, asserted its right to try the two
marines and has already commenced proceedings against
them in Italy under penal provisions which could result in a
sentence of 21 years of imprisonment if the said accused are
convicted. In such a scenario, the State of Kerala, as one of G
the units of a federal unit, would not have any authority to try
the accused who were outside the jurisdiction of the State unit.
As mentioned hereinbefore, the extension of Section 188A
l.P.C. to the Exclusive Maritime Zone, of which the Contiguous
Zone is also a part, did not also extend the authority of the
H
650 SUPREME COURT REPORTS [2013] 4 S.C.R.

A Kerala State Police beyond the territorial waters, which is the
limit of its area of operations.

87. What then makes this case different from any other
case that may involve similar facts, so as to merit exclusion from
the operation of Section 2 of the Indian Penal Code, as urged
8
by Mr. Salve? For the sake of reference, Section 2 of Indian
Penal Code, is extracted hereinbelow :-

"2. Punishment of offences committed within India -
Every person shall be liable to punishment under this Code
C and not otherwise for every act or omission contrary to the
provisions thereof, of which he shall be guilty within India."

88. The answer to the said question is the intervention of
the UNCLOS 1982, which sets out the legal framework
0 applicable to combating piracy and armed robbery at sea, as
well as other ocean activities. The said Convention which was
signed by India in 1982 and ratified on 29th June, 1995,
encapsulates the law of the sea and is supplemented by several
subsequent resolutions adopted by the Security Council of the
E United Nations.

89. Before UNCLOS came into existence, the law relating
to the seas which was in operation in India, was the Territorial
Waters, Continental Shelf, Exclusive Economic Zone and Other
Maritime Zones Act, 1976, which spelt out the jurisdiction of ttie
F Central Government over the Territorial Waters, the Contiguous
Zones and the Exclusive Economic Zone.

90. In addition to the above was the presence of Article
11 of the Geneva Convention or the Law of the Seas, 1958,
G and the interpretation of the expression "incident of navigation"
used therein, in its application to the firing resorted to by the
Petitioner Nos.2 and 3 from on board the M.V. Enrica Lexie.

91. What is also of some relevance in the facts of this case
is Resolution 1897 of :2009, adopted by the Security Council
H of the United Nations on 30th November, 2009, wherein while
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 651
AND ORS. [ALTAMAS KABIR, CJI.]
recognizing the menace of piracy, particularly off the coast of A
Somalia, the United Nations renewed its call upon States and
regional organizations that had the capacity to do so, to take
part in the fight against piracy and armed robbery off the Sea
of Somalia in particular.
B
92. The provisions of the Maritime Zones Act, 1976, take
note of the Territorial Waters, the Contiguous Zone, the
Continental Shelf and the Exclusive Economic Zone. Section
7 of the said enactment deals with the Exclusive Economic Zone
of India and stipulates the same to be an area beyond and
adjacent to the Territorial Waters extending upto 200 nautical C
miles from the nearest point of the baseline of the Kerala coast.
It is quite clear that the Contiguous Zone is, therefore, within
the Exclusive Economic Zone of India and the laws governing
the Exclusive Economic Zone would also govern the incident
which occurred within the Contiguous Zone, as defined under D
Section 5 of the aforesaid Act. The provisions of the UNCLOS
is in harmony with and not in conflict with the provisions of the
Maritime Zones Act, 1976, in this regard. Article 33 of the
Convention recognises and describes the Contiguous Zone of
a nation to extend to 24 nautical miles from the baseline from E
which the breadth of the territorial sea is measured. This is in
complete harmony with the provisions of the 1976 Act. Similarly,
Articles 56 and 57 describe the rights, jurisdiction and duties
of the coastal State in the Exclusive Economic Zone and the
breadth thereof extending to 20 nautical miles from the baseline F
from which the breadth of the territorial sea is measured. This
provision is also in consonance with the provisions of the 1976
Act. The area of difference between the provisions of the
Maritime Zones Act, 1976, and the Convention occurs in Article
97 of the Convention which relates to the penal jurisdiction in G
matters of collision or any other incident of navigation
(emphasis added).

93. The present case does not involve any collision
between the Italian Vessel and the Indian Fishing Vessel.
H
652 SUPREME COURT REPORTS (2013] 4 S.C.R.

A However, it has to be seen whether the firing incident could be
said to be covered by the expression "incident of navigation".
Furthermore, in the facts of the case, as asserted on behalf of
the Petitioners, the incident also comes within Article 100 of
the Convention which provides that all States shall cooperate
B to the fullest possible extent in the repression of piracy on the
high seas or in any other place outside the jurisdiction of any
State. If Article 97 of the Convention applies to the facts of this
case, then in such case, no penal or disciplinary proceeding
can be instituted against the Master or any other person in
c service of the ship, except before the judicial or administrative
authorities either of the Flag State or of the State of which such
person is a national. Article 97(3) stipulates in clear terms that
no arrest or detention of the ship, even as a measure of
investigation, shall be ordered by any authorities other than
those of the Flag State. In this case, the Italian Vessel, M.V.
0
Enrica Lexie, was flying the Italian flag. It may be recalled that
the St. Antony was not flying an Indian flag at the time when the
incident took place. In my view, the above fact is not very
relevant at this stage, and may be of some consequence if the
provisions of Article 100 of UNCLOS, 1982, are invoked.
E
94. The next question which arises is whether the incident
of firing could be said to be an incident of navigation. The
context in which the expression has been used in Article 97 of
the Convention seems to indicate that the same refers to an
F accident occurring in the course of navigation, of which collision
between two vessels is the principal incident. An incident of
navigation as intended in the aforesaid Article, cannot, in my
view, involve a criminal act in whatever circumstances. In what
circumstances the incident occurred may be set up as a
G defence in a criminal action that may be taken, which legal
position is accepted by both the countries which have initiated
criminal proceedings against the two marines. Even the
provisions of Article 100 of UNCLOS may be used for the same
purpose. Whether the accused acted on the misunderstanding
H that the Indian fishing vessel was a pirate vessel which caused
R~PUBLIC OF ITALY AND ORS. v. UNION OF INDIA 653
AND ORS. [ALTAMAS KABIR, CJI.]
the accused to fire, is a matter of evidence which can only be A
established during a trial. If the defence advanced on behalf of
the Petitioner Nos. 2 and 3 is accepted, then only will the
provisions of Article 100 of the Convention become applicable
to the facts of the case.
B
95. The decision in the Lotus Case (supra) relied upon by
the learned Additional Solicitor General would accordingly be
dependent on whether the provisions of Article 97 of the
Convention are attracted in the facts of this case. As already
indicated hereinbefore, the expression "incident of navigation" C
in Article 97 cannot be extended to a criminal act, involving the
killing of two Indian fishermen on board an Indian fishing vessel,
although, the same was not flying the Indian flag. If at all, Article
100 of the Convention may stand attracted if and when the
defence version of apprehension of a pirate attack is accepted
by the Trial Court. In the Lotus case, the question relating to the D
extent of the criminal jurisdiction of a State was brought to the
Permanent Court of International Justice in 1927. The said case
related to a collision between the French Steamship 'Lotus' and
the Turkish Steamship 'Boz-Kourt', which resulted in the sinking
of the latter ship and the death of eight Turkish subjects. Once E
the Lotus arrived at Constantinople, the Turkish Government
commenced criminal proceedings both against the Captain of
the Turkish vessel and the French Officer of the Watch on board
the Lotus. On both being sentenced to imprisonment, the French
Government questioned the judgment on the ground that Turkey F
had no jurisdiction over an act committed on the open seas by
a foreigner on board a foreign vessel, whose flag gave it
exclusive jurisdiction in the matter. On being referred to the
Permanent Court of International Justice, it was decided that
Turkey had not acted in a manner which was contrary to G
International Law since the act committed on board the Lotus
had effect on the Boz-Kourt flying the Turkish flag. In the ninth
edition of Oppenheim's International Law, which has been
.referred to in the judgment under consideration, the nationality
of ships in the high seas has been referred to in paragraph 287, H
654 SUPREME COURT REPORTS (2013] 4 S.C.R.

A wherein it has been observed by the learned author that the
legal order on the high seas is based primarily on the rule of
International Law which requires every vessel sailing the high
seas to possess the nationality of, and to fly the flag of, one
State, whereby a vessel and persons on board the vessel are
B subjected to the law of the State of the flag and in general
subject to its exclusive jurisdiction. In paragraph 291 of the
aforesaid discourse, the learned author has defined the scope
of flag jurisdiction to mean that jurisdiction in the high seas is
dependent upon the Maritime Flag under which vessels sail,
c because, no State can extend its territorial jurisdiction to the
high seas. Of course, the aforesaid principle is subject to the
right of "hot pursuit", which is an exception to the exclusiveness
of the flag jurisdiction over ships on the high seas in certain
special cases.
D 96. This takes us to another dimension involving the
concept of sovereignty of a nation in the realm of Public
International Law. The exercise of sovereignty amounts to the
exercise of all rights that a sovereign exercises over its subjects
and territories, of which the exercise of penal jurisdiction under
E the criminal law is an important part. In an area in which a
country exercises sovereignty, its laws will prevail over other
laws in case of a conflict between the two. On the other hand,
a State may have sovereign rights over an area, which stops
short of complete sovereignty as in the instant case where in
F view of the provisions both of the Maritime Zones Act, 1976,
and UNCLOS 1982, the Exclusive Economic Zone is extended
to 200 nautical miles from the baseline for measurement of
Territorial Waters. Although, the provisions of Section 188A
l.P .C. have been extended to the Exclusive Economic Zone, the
G same are extended to areas declared as "designated areas"
under the Act which are confined to installations and artificial
islands, created for the purpose of exploring and exploiting the
natural resources in and under the sea to the extent of 200
nautical miles, which also includes the area comprising the
H Continental Shelf of a country. However, the Exclusive
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 655
AND ORS. [ALTAMAS KABIR, CJI.]
Economic Zone continues to be part of the High Seas over A
which sovereignty cannot be exercised by any nation.

97. In my view, since India is a signatory, she is obligated
to respect the provisions of UNCLOS 1982, and to apply the
same if there is no conflict with the domestic law. In this context, B
both the countries may have to subject themselves to the
provisions of Article 94 of the Convention which deals with the
duties of the Flag State and, in particular, sub-Article (7) which
provides that each State shall cause an inquiry to be held into
every marine casualty or incident of navigation on the high seas
involving a ship flying its flag and causing loss of life or serious C
injury to nationals of another State. It is also stipulated that the
Flag State and the other State shall cooperate in the conduct
of any inquiry held by that other State into any such marine
casualty or incident of navigation.
D
98. The principles enunciated in the Lotus case (supra)
have, to some extent, been watered down by Article 97 of
UNCLOS 1982. Moreover, as observed in Starke's
International Law, referred to by Mr. Salve, the territorial criminal
jurisdiction is founded on various principles which provide that, E
as a matter of convenience, crimes should be dealt with by the
States whose social order is most closely affected. However,
it has also been observed that some public ships and armed
forces of foreign States may enjoy a degree of immunity from
the territorial jurisdiction of a nation. F

99. This brings me to the question of applicability of the
provisions of the Indian Penal Code to the case in hand, in view
of Sections 2 and 4 thereof. Of course, the applicability of
Section 4 is no longer in question in this case on account of
the concession made on behalf of the State of Kerala in the G
writ proceedings before the Kerala High Court. However,
Section 2 of the Indian Penal Code as extracted hereinbefore
provides otherwise. Undoubtedly, the incident took place within
the Contiguous Zone over which, both under the provisions of
the Maritime Zones Act, 1976, and UNCLOS 1982, India is H
656 SUPREME COURT REPORTS [2013] 4 S.C.R.

A entitled to exercise rights of sovereignty. However, as decided
by this Court in the Aban Loyd Chiles Offshore Ltd. case
(supra), referred to by Mr. Salve, Sub-section (4) of Section 7
only provides for the Union of India to have sovereign rights
limited to exploration, exploitation, conservation and
B management of the natural resources, both living and non-living,
as well as for producing energy from tides, winds and currents,
which cannot be equated with rights of sovereignty over the said
areas, in the Exclusive Economic Zone. It also provides for the
Union of India to exercise other ancillary rights which only
c clothes the Union of India with sovereign rights and not rights
of sovereignty in the Exclusive Economic Zone. The said
position is reinforced under Sections 6 and 7 of the Maritime
Zones Act, 1976, which also provides that India's sovereignty
extends over its Territorial Waters while, the position is different
D in respect of the Exclusive Economic Zone. I am unable to
accept Mr. Banerji's submissions to the contrary to the effect
that Article 59 of the Convention permits States to assert rights
or jurisdiction beyond those specifically provided in the
Convention.
E 100. What, therefore, transpires from the aforesaid
discussion is that while India is entitled both under its Domestic
Law and the Public International Law to exercise rights of
sovereignty upto 24 nautical miles from the baseline on the
basis of which the width of Territorial Waters is measured, it
F can exercise only sovereign rights within the Exclusive
Economic Zone for certain purposes. The incident of firing from
the Italian vessel on the Indian shipping vessel having occurred
within the Contiguous Zone, the Union of India is entitled to
prosecute the two Italian marines under the criminal justice
G system prevalent in the country. However, the same is subject
to the provisions of Article 100 of UNCLOS 1982. I agree with
Mr. Salve that the "Declaration on Principles of International Law
Concerning Family Relations and Cooperation between States
in accordance with the Charter of the United Nations" has to
be conducted only at the level of the Federal or Central
H
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 657
AND ORS. [ALTAMAS KABIR, CJI.]
Government and cannot be the subject matter of a proceeding A
initiated by a Provincial/State Government.
101. While, therefore, holding that the State of Kerala has
no jurisdiction to investigate into the incident, I am also of the
view that till such time as it is proved that the provisions of
Article 100 of the UNCLOS 1982 apply to the facts of this case, B
it is the Union of India which has jurisdiction to proceed with
the investigation and trial of the Petitioner Nos.2 and 3 in the
Writ Petitfon. The Union of India is, therefore, directed, in
consultation with the Chief Justice of India, to set up a Special
Court to try this case and to dispose of the same in accordance C
with the provisions of the Maritime Zones Act, 1976, the Indian
Penal Code, the Code of Criminal Procedure and most
importantly, the provisions of UNCLOS 1982, where there is
no conflict between the domestic law and UNCLOS 1982. The
pending proceedings before the Chief Judicial Magistrate, D
Kollam, shall stand transferred to the Special Court to be
constituted in terms of this judgment and it is expected that the
same shall be disposed of expeditiously. This will not prevent
the Petitioners herein in the two matters from invoking the
provisions of Article 100 of UNCLOS 1982, upon adducing E
evidence in support thereof, whereupon the question of
jurisdiction of the Union of India to investigate into the incident
and for the Courts in India to try the accused may be
reconsidered. If it is found that both the Republic of Italy and
the Republic of India have concurrent jurisdiction over the
F
matter, then these directions will continue to hold good.
102. It is made clear that the observations made in this
judgment relate only to the question of jurisdiction prior to the
adducing of evidence and once the evidence has been
recorded, it will be open to the Petitioners to re-agitate the G
question of jurisdiction before the Trial Court which will be at
liberty to reconsider the matter in the light of the evidence which
may be adduced by the parties and in accordance with law. It
is also made clear that nothing in this judgment should come
in the way of such reconsideration, if such an application is
H
made.
658 SUPREME COURT REPORTS [2013] 4 S.C.R.

A 103. The Special Leave Petition and the Writ Petition,
along with all connected applications, are disposed of in the
aforesaid terms.

CHELAMESWAR, J. 1. I agree with the conclusions
recorded in the Judgment of the Hon'ble Chief Justice. But. I
8
wish to supplement the following.

2. The substance of the submission made by Shri Harish
Salve, learned senior counsel for the petitioners is;

c (1) The incident in question occurred beyond the territory
of India to which location the sovereignty of the country does
not extend; and Parliament cannot extend the application of the
laws made by it beyond the territory of India. Consequentially,
the two marines are not amenable to the jurisdiction of India;
D Alternatively it is argued; (2) that the incident, which
resulted in the death of two Indians is an "incident of navigation"
within the meaning of Article 97 1 of the United Nations
Convention on the Law of the Sea (hereinafter referred to as
UNCLOS) and therefore, no penal proceedings may be
E instituted against the two marines except before the Judicial
authorities of the 'Flag State' or the State of which the marines
are nationals.

3. The authority of the Sovereign to make laws and enforce
F
1. Article 97. Penal jurisdiction in matters of collision or any other incident
navigation.
1. In the event of a collision or any other incident of navigation concerning
a ship on the high seas, involving the penal or disciplinary responsibility
proceedings may be instituted against such person except before the
judicial or administrative authorities either of the flag State or of the State
G of which such person is a national.
2. In disciplinary matters, the State which has issued a maste~s certificate
or a certificate of competence or licenece shall alone be competent after
due legal process, to pronounce the withdrawal of such certificates, even
if the holder is not a national of the State whcih issued them.
3. No arrest or detention of the ship, even as a measure or investi~ation,
H shall be ordered by any authorities other than of the flag State.
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 659
AND ORS. [J. CHELAMESWAR, J.]
them against its subjects is undoubted in constitutional theory. A
Though written Constitutions prescribe limitations, either
express or implied on such authority, under our Constitution,
such limitations are with respect to territory [Article 245(1)] or
subject matter [Article 246] or time span of the operation of the
laws [Articles 249 & 250] or the inviolable rights of the subjects B
(fundamental rights] etc. For the purpose of the present case,
we are concerned only with the limitation based on territory.

4. That leads me to the question as to what is the territory
of the Sovereign Democratic Republic of India ?
c
5. The territory of India is defined under Article 1;

"1. Name and territory of the Union.-

(1) India, that is Bharat, shall be a Union of States.
D
(2) The States and the territories thereof shall be as
specified in the First Schedule.

(3) The territory of India shall comprise--
E
(a) The territories of the States;

(b) The Union territories specified in the First Schedule;
and

(c) such other territories as may be acquired." F
But that deals only with geographical territory. Article 297 deals
with 'maritime territory' .2
2. As early as 1927, Philip C. Jessup, who subsequently became a judge of
the International Court of Justice, state that the territorial waters are "as
much a part of the territory of a nation as is the land itself. Hans Kelsen G
declared that "the territorial waters form part of the territory of the littoral
State". In the Grisbadarna Case (1909), between Norway and Sweden, the
Permanent Court of Arbitration referred to the territorial waters as "the
maritime territory" which is an essential appurtenance of the adjacent land
territory. In the Corfu Channel (Merits) case (1949), the International Court
of Justice clearly recognised that, under international law, the territorial sea H
660 SUPREME COURT REPORTS [2013] 4 S.C.R.

A 6. Article 297(3) authorises the Parliament to specify from
time to time the limits of various maritime zones such as,
territorial waters, continental shelf, etc. Clauses ( 1) and (2) of
the said article make a declaration that all lands, minerals and
other things of value and all other resources shall vest in the
B Union of India.

"Article 297: Things of value within territorial waters or
continental shelf and resources of the exclusive economic
zone to vest in the Union.-

C (1) All lands, minerals and other things of value underlying
the ocean within the territorial waters, or the continental
shelf, or the exclusive economic zone, of India shall vest
in the Union and be held for the purposes of the Union.

0 (2) All other resources of the exclusive economic zone of
India shall also vest in the Union and be held for the
purposes of the Union.

was the "territory• of the coastal state over which it enjoyed "exclusive
territorial control" and "sovereignty". Lord Mc Nair, who subscribed to the
E majority view of the Court in the above case, observed in the Anglo-
Norwegian Fisheries case:
To every State whose land territory is at any place washed by the sea,
internatior.al law attaches a corresponding portion of maritime territory .......
lntemationla law does not say to a State: "You are entitled to claim territorial
waters if you want them". No maritime State can refuse them. International
F law impose upon a maritime State certain obligations and confers upon it
certain rights arising out of the sovereignty which it exercised over its
maritime territory. The possession of this territory is not optional, not
dependent upon the will of the State, but compulsory.
Sir Gerald Fitzmaurice, writing before he became a judge of the lntenational
Court of Justice, quoted Mc Nair's observation with approval, and considered
that it was also implict in the decision of the Word Court in the Anglo-
G Norwegian Fisheries case. It follows, therefore, that the territorial waters
are not only "territory" but also a compulsory appurtenance to the coastal
state. Hence the observation by l.F.E. Goldie that "tt has long been accepted
that territorial waters, their suprea"-mbient air, their sea-bed and subsoil,
vest in the coastal State ipso jure (i.e., without any proclamation or effective
occupation being necessary)" ---from The New Law of Maritime Zones
H by P.C. Rao (Page 22).
REPUBLIC OF ITALY ANO ORS. v. UNION OF INDIA 661
AND ORS. [J. CHELAMESWAR, J.]
(3) The limits of the territorial waters, the continental shelf, A
the exclusive economic zone, and other maritime zones,
of India shall be such as may be specified, from time to
time, by or under any law made by Parliament.

7. Two things follow from the above declaration under
8
Article 297. Firstly, India asserts its authority not only on the land
mass of the territory of India specified under Article 1, but also
over the areas specified under Article 297. It authorises the
Parliament to specify the limits of such areas (maritime zones).
The nature of the said authority may not be the same for the
various maritime zones indicated in Article 297. However, the C
preponderance of judicial authority appears to be that the
sovereignty of the coastal state extends to the territorial waters. 3

8. The sovereignty of a Nation I State over the landmass
comprised within the territorial boundaries of the State, is an D
established principle of both constitutional theory and
International Law. The authority of the Sovereign to make and
enforce laws within the territory over which the sovereignty
extends is unquestionable in constitutional theory. That the
sovereignty of a 'coastal State' extends to its territorial waters, E
is also a well accepted principle of International LaW' though
3. The territorial sea appertains to the territorial soverignty of the coastal state
and thus belongs to it automatically. For example, all newly independent
state (with a coast) come to indepen~ence with an entitlement to a territorial
sea. There have been a number of theroies as to the precise legal character
of the territorial sea of the coastal state, ranging from treating the territorial F
sea as part of the res communis, but subject to certain rights exercisable
by the coastal state. to regarding the territorial sea as part of the coastal
state's territorial domain subject to a right of innocent passage by foreign
vessels ......... .
Articles 1 and 2 of the Convention on the Territorial Sea, 1958 provide that
the coastal state's sovereignty over its territorial sea and to the airspace G
and seabed and the subsoil thereof, subject to the provisions of the
Convention and of international law..... --from International Law by Malcolm
N. Shaw [sixth edition] (page 569-570)
4. It is well established that the coastal state has sovereignty over its territorial
waters, the sea-bed and subsoil underlying such waters. and the air space
above them, subject to the obligations imposed by international law.
Recently, in the North Sea Continental Shelf cases, the International Court H
662 SUPREME COURT REPORTS [2013] 4 S.C.R.

A there is no uniformly shared legal norm establishing the limit of
the territorial waters - "maritime territory''. Whether the maritime
territory is also a part of the national territory of the State is a
question on which difference of opinion exists. Insofar as this
Court is concerned, a Constitution Bench in B.K.Wadeyar v.
B Mis. Dau/atram Rameshwarla/ (AIR 1961 SC 311) held at
para 8 as follows:

" ......... These territorial limits would include the territorial
waters of India ................ "

C 9. Insofar the Republic of India is concerned, the limit of
the territorial waters was initially understood to be three nautical
miles. It had been extended subsequently, up to six nautical
miles by a Presidential proclamation dated 22.3.52 and to
twelve nautical miles by another proclamation dated 30.9.67.
D By Act 80 of 1976 of the Parliament, it was statutorily fixed at
12 nautical miles. The Act also authorizes the Parliament to
alter such limit of the territorial waters.

10. The Territorial Waters, Continental Shelf, Exclusive
E Economic Zone and Other Maritime Zones Act, 80 of 1976
(hereinafter referred to as 'the Maritime Zones Act'), was made
by the Parliament in exercise of the authority conferred under
Article 297. Except Sections 5 and 7, rest of the Sections of
the Act, came into force on 26-08-1976. Sections 5 and 7 came
into force, subsequently, on 15-01-1977, by virtue of a
F notification contemplated under Section 1(2). Section 3(1)
declares that the sovereignty of India extends, and has always
extended, to the territorial waters of India:
''The sovereignty of India extends and has always extended
G to the territorial waters of India (hereinafter referred to as

of Justice declared that a coastal has "full sovereignty" over its territorial
sea. This principle of customary international law has also been enshrined
in article 1 of the Geneva Convention, and remains unaffected in the draft
convention.--from The New law of Maritime Zones by P.C. Rao (Page
H 22)
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 663
AND ORS. [J:-CHELAMESWAR, J.]
the territorial waters) and to the seabed and subsoil A
underlying, and the air space over, such waters."
Under sub-section (2), the limit of the territorial waters is
specified to be twelve nautical miles from the nearest point of
the appropriate baseline:
8
"The limit of the territorial waters is the line every point of
which is at a distance of twelve nautical miles from the
nearest point of the appropriate baseline."
Sub-section (3) authorises the Government of India to alter the
limit of the territorial waters by a notification approved by both C
the Houses of Parliament, with due regard to the International
Law and State practice:
"Notwithstanding anything contained in sub-section (2), the
Central Government may, whenever it considers necessary
so to do having regard to International Law and State D
practice, alter, by notification in the Official Gazette, the
limit of the territorial waters."
11. Section 5 defines contiguous zone to be an area
beyond and adjacent to the territorial waters extending up to
twenty-four nautical miles from the nearest point of the E
appropriate baseline:
"Section 5(1): The contiguous zone of India (hereinafter
referred to as the contiguous zone) is and area beyond
and adjacent to the territorial waters and the limit of the
contiguous zone is the line every point of which is at a F
distance of twenty-four nautical miles from the nearest point
of the baseline referred to in sub-section (2) of section 3."
This limit also can be altered by the Government of India, in
the same manner as the limit of the territorial waters. Section
6 describes the continental shelf, whereas Section 7 defines G
the exclusive economic zone. While the Parliament authorizes
the Government of lndia 5 under Sections 3(3), 5(2) and 7(2)
5. Central Government may whenever it considers necessary so to do having
regard to the International Law and State practice alter by notification in the
Official Gazette the limlt of....... ." H
664 SUPREME COURT REPORTS [2013] 4 S.C.R.

A respectively to alter the limits of territorial waters, contiguous
zone and exclusive economic zone with the approval of both
the Houses of the Parliament, the law does not authorise the
alteration of the limit of the continental shelf.

12. While Section 3 declares that "the sovereignty of India
B
extends, and has always extended, to the territorial waters", no
such declaration is to be found in the context of contiguous
zone. On the other hand, with reference to continental shelf, it
is declared under Section 6(2) that "India has, and always had,
full and exclusive sovereign rights in respect of its continental
C shelf'. With reference to exclusive economic zone, Section
7(4)(a) declares that "in the exclusive economic zone, the Union
has sovereign rights for the purpose of exploration, exploitation,
conservation and management of the natural resources, both
living and non-living as well as for producing energy from tides,
D winds and currents."

13. Whatever may be the implications flowing from -tlfe
language of the Maritime Zones Act and the meaning of the
expression "sovereign rights" employed in Sections 6(2),
E 6(3)(a}6 and 7(4}(a), (Whether or not the sovereignty of India
extends beyond its territorial waters and to the contiguous zone
or not}7 , in view of the scheme of the Act, as apparent from

F 6. Section 6(3)(a) : sovereign rights for the purpose of exploration, exploitation,
conservation and management of all resources.
7..... the jurisdiction of the coastal state has been extended into areas of high
seas contiguous to the territorial sea, albeit for defined purposes only. Such
restricted jurisdiction zones have been established or asserted for a
number of reasons ....
G ....without having to extend the boundaries of its territorial sea further Into the
high seas .....
.. ... .such contiguous zones were clearly differentitated from claims to full
sovereignty as parts of the territorial sea, by being referred to as part of the
high seas over which Is automatically attached to the land territory of the
state ........ -----from International Law by Malcolm N. Shaw (sixth edition]
(page 578-579)
H
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 665
AND ORS. [J. CHELAMESWAR, J.]
Section 5(5)(a) 8 and Section 7(7)(a) 9 , the application of "any A
enactment for the time being in force in India" (like the Indian
Penal Code and the Code of Criminal Procedure), is not
automatic either to the contiguous zone or exclusive economic
zone. It requires a notification in the official gazette of India to
extend the application of such enactments to such maritime - B
zone. The Maritime Zones Act further declares that once such
a notification is issued, the enactment whose application is so
extended "shall have effect as if' the contiguous zone or
exclusive economic zone, as the case may be, "is part of the
territory of India". Creation of such a legal fiction is certainly c
within the authority of the Sovereign Legislative Body.

14. In exercise of the power conferred by Section 7(7) of
the Maritime Zones Act, the Government of India extended the
application of both the Indian Penal Code and the Code of
Criminal Procedure to the exclusive economic zone by a D
notification dated 27-08-1981. By the said notification, the
Code of Criminal Procedure also stood modified. A new
provision - Section 188A - came to be inserted in the Code of
Criminal Procedure, which reads as follows:
E
"188A. Offence committed in exclusive economic
zone; When an offence is committed by any person in the
exclusive economic zone described in sub-section(1) of
Section 7 of the Territorial Waters, Continental Shelf,
Exclusive Economic Zone and Other Maritime Zones Act, F
1976 (80 Of 1976) or as altered by notification, if any,
issued under sub-section (2) thereof, such person may be
dealt with in respect of such offence as if it had been
committed in any place in which he may be found or in

8. Section 5(5)(a) : extend with such restriction and modifications as It thinks G
fit any enactment, relating to any matter referred to in clause (a) or clause
(b) of sub-section (4), for the time being in force in India or any part thereof
Of the contiguous zone.
9. Section 7(7)(a) : extend, with such restrictions, and modification as it thinks,
fit, any enactment for the time being in force in India or any part thereof in
the exclusive economic zone _or any part thereof. H
666 SUPREME COURT REPORTS [2013] 4 S.C.R.

A such other place as the Central Government may direct
under Section 13 of the Said Act."

15. Under the Constitution, the legislative authority is
distributed between the Parliament and the State Legislatures.
While the State legislature's authority to make laws is limited
8
to the territory of the State, Parliament's authority has no such
limitation.

16. Though Article 24510 speaks of the authority of the
Parliament to make laws for the territory of India, Art:cle 245(2)
C expressly declares - "No law made by Parliament shall be
deemed to be invalid on the ground that it would have extra
territorial operation". In my view the declaration is a fetter on
the jurisdiction of the Municipal Courts including Constitutional
Courts to either declare a law to be unconstitutional or decline
D to give effect to such a law on the ground of extra territoriality.
The first submission of Shri Salve must, therefore, fail.

17. Even otherwise, territorial sovereignty and the ability
of the sovereign to make, apply and enforce its laws to persons
E (even if not citizens), who are not corporeally present within the
sovereign's territory, are not necessarily co-extensive.

18. No doubt that with respect to Criminal Law, it is the
principle of 19th century English jurisprudence that;

F "all crime is local. The jurisdiction over the crime belongs
to the country where the crime is committed". 11

10. Article 245: Extent of lawa made by Parliament and by the Leglelatures
of State:-
(1) Subject to the provisions of this Constitution, Parliament may make
G laws for the whole or any part of the territory of India, and the Leglsalture of
a State may make laws for the whole or any part of the State.
(2) No law made by Parliament shall be deemed to be invalid on the
ground that It would have extra-territorlal operation.
11. See: Macleod v. Attorney Gen of New South Wales (1891) AC 455, 451·
58 and Huntington v. Attrlll (1893) AC 150
H
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 667
AND ORS. [J. CHELAMESWAR, J.]
But that principle is not accepted as an absolute principle any A
more. The increased complexity of modern life emanating from
the advanced technology and travel facilities and the large cross
border commerce made it possible to commit crimes whose
effects are felt in territories beyond the residential borders of
the offenders. Therefore, States claim jurisdiction over; (1) B
offenders who are not physically present within; and (2) offences
committed beyond-the-territory of the State whose "legitimate
interests" are affected. This is done on the basis of various
principles known to international law, such as, "the objective
territorial claim, the nationality claim, the passive personality c
claim, the security claim, the universality claim and the like". 12
19. The protection of Articles 14 and 21 of the Constitution
is available even to an alien when sought to be subjected to
the legal process of this country. This court on more than one
occasion held so on the ground that the rights emanating from D
those two Articles are not confined only to or dependent upon
the citizenship of this country13 • As a necessary concomitant,
this country ought to have the authority to apply and enforce the
laws of this country against the persons and things beyond its
territory when its legitimate interests are affected. In assertion E
of such a principle, various laws of this country are made
applicable beyond its territory.
20. Section 2 read with 4 of the Indian Penal Code14 makes
12. P C Rao--"lndian Contitution and International Law", page 42.
F
13. See AIR 1955 SC 367 = Hans Muller of Nuremberg v. Superintendent,
Presidency Jail Calcutta para 34.
also (2002) 2 SCC 465 = Chariman, Railway Board &ampl; Others vs. Mrs.
Chandrima Das and Others para 28 to 32.
14. Section 2: Punlehment of offences committed within India.- Every person
shall be liable to punishment under this Coda and not othwerise for every G
act or-omission contrary to Iha provisions thereof, of which he shall be
guilty within India.
Section. 4: Extension of Code to extra-territorial offencas.-The Provisions of
this Code apply also to any offence committed by-
(1) any citizen of India in any place without and beyond India;
(2) any person on any ship or aircraft registered In India where~r It may be; H
668 SUPREME COURT REPORTS [2013] 4 S.C.R.

A the provisions of the Code applicable to the offences committed
"in any place without and beyond" the territory of India; (1) by a
citizen of India or (2) on any ship or aircraft registered in India,
irrespective of its location, by any person not necessarily a
citizen 15 • Such a declaration was made as long back as in
B 1898. By an amendment in 2009 to the said Section, the Code
is extended to any person in any place ''without and beyond the
territory of India", committing an offence targeting a computer
resource located in India.
21. Similarly, Parliament enacted the Suppression of
C Unlawful Acts Against Safety of Maritime Navigation And Fixed
Platforms on Continental Shelf Act, 2002 (Act No.69 of 2002),
under Section 1(2), it is declared as follows:
"It extends to the whole of India including the limit of the
territorial waters, the continental shelf, the exclusive
D economic zone or any other maritime zone of India within
the meaning of section 2 of the Territorial Waters,
Continental Shelf, Exclusive Economic Zone and other
Maritime Zones Act, 1976 (80 of 1976)."

E (emphasis supplied)

Thereby expressly extending the application of the said Act
beyond the limits of the territorial waters of India.

22. Section 3 of the said Act, insofar it is relevant for our
F purpose is as follows:

"(1) Whoever unlawfully and intentionally-

(a) commits an act of violence against a person on
G (3) any person in any place without and beyond India committing offence
targeting a computers resource located In India.
15. Mobarlk All Ahmed v. State of Bombay (AIR 1957 SC 857, 870)
"on a plain reading of section 2 of the Penal Code, the Code does apply to a
foreigner who has committed an offence within India notwithstanding that
H he was corporeally present outside".
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 669
AND ORS. [J. CHELAMESWAR, J.)
board a fixed platform or a ship which is likely to A
endanger the safety of the fixed platform or, as the case
may be, safe navigation of the ship shall be punished
with imprisonment for a term which may extend to ten year
and shall also be liable to fine;"
B
(emphasis supplied)

23. The expression "ship" for the purpose of the said Act
is defined under Section 2(h):

"(h) "ship" means a vessel of any type whatsoever not c
permanently attached to the seabed and includes
dynamically supported craft submersibles, or any other
floating craft."

24. Parliament asserted its authority to apply the penal
provisions against persons, who "hijack" (described under D
Section 316 of the Anti-Hijacking Act, 1982) an aircraft. The Act
does not take into account the nationality of the hijacker. The
Act expressly recognises the possibility of the commission of
the act of hijacking outside India and provides under Section
6 that the person committing such offence may be dealt with in E
respect thereof as if such offence had been committed in any
place within India at which he may be found. Similarly, Section

16. 3. Hijacking.- (1) whoever on board an aircerft in flight, unlawfully, by force
or threat of force or by an other fonn of intimidation, seizes or exercises F
control of that aricarft, commits the offence of hijacking of such aricraft.
(2) Whoever attempt to commit any of the acts referred to in sub-
sectlon(1) in relation to any aircraft, or abets the commission of any such
act, shall also be deemed to have committed the offence of hijacking of
such aircraft.
(3) For the purposes of this section, an aircraft shall be deemed to be in G
flight at any time from the moment when all Its external doors are closed
following embarkation until the moment when any such door is opened for
disembarkation, and In the case of a forced landing, the flight shall be
deemed to continue until the competent authorities of the country In which
such forced landing takes place take over the responsibility for the aircraft
and for persons and property on board.
H
670 SUPREME COURT REPORTS [2013] 4 S.C.R.

A 3 of the Geneva Conventions Act, 1960, provides that "any
person commits or attempts to commit, or abets or procures
the commission by any other person of a grave breach of any
of the Conventions", either "within or without India", shall be
punished.
B 25. Thus, it is amply clear that Parliament always asserted
its authority to make laws, which are applicable to persons, who
are not corporeally present within the territory of India (whether
are not they are citizens) when such persons commit acts which
affect the legitimate interests of this country.
c
26. In furtherance of such assertion and in order to facilitate
the prosecution of the offenders contemplated under Section
4(1) & (2) of the Indian Penal Code, Section 188 of the Code
of Criminal Procedure17 prescribes the jurisdiction to deal with
o such offences. Each one of the above referred enactments also
contains a provision parallel to Section 188.

27. Such assertion is not peculiar to India, but is also made
by various other countries. For example, the issue arose in a
case reported in R v. Baster [1971] 2 All ER 359 (C.A.). The
E accused posted letters in Northern Ireland to football pool
promoters in England falsely claiming that he had correctly
forecast the results of football matches and was entitled to
winnings. He was charged with attempting to obtain property
by deception contrary to Section 15 of the Theft Act 1968. The
F

17. Section 188. Offence committed outside India.
When an offence is committed outside India
(a) By a citizen of India. whether on the high seas or elsewhere; or
G (b) By a person, not being such citizen, on any ship or aircraft registered in
India.
He may be dealt with in respect of such offence as if it had been committed
at any place within India at which he may be found.
Provided that, notwithstanding anything in any of the preceding sections of
this Chapter, no such offence shall be inquired into or tried in India except
H with the previous sanction of the Central Government.
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 671
AND ORS. [J. CHELAMESWAR, J.]
accused contended that when the letters were posted in A
Northern Ireland the attempt was complete and as he had never
left Northern Ireland during the relevant period, the attempt had
not been committed within the jurisdiction of the English Courts.
It was held:
B
"The attempt was committed within the jurisdiction
because an offence could be said to be committing an
attempt at every moment of the period between the
commission of the proximate act necessary to constitute
the attempt and the moment when the attempt failed; C
accordingly the accused was attempting to commit the
offence of obtaining by deception when the letter reached
its destination within England and thus the offence was
committed within the jurisdiction of the English courts;
alternatively it could be said that the accused made
arrangements for the transport and delivery of the letter, D
essential parts of the attempt, within the jurisdiction; the
presence of the accused within the jurisdiction was not an
essential element of offences committed in England."

(emphasis supplied) E

28. The United States of America made such assertions:

" ........... the provision extending the special maritime and
territorial jurisdiction of the US to include any place outside
the jurisdiction of any nation with respect to an offence by F
or against a national of the United States. In 1986,
following the Achille Lauro incident, the US adopted the
Omnibus Diplomatic Security and Anti-Terrorism Act,
inserting into the criminal code a new section which
provided for US jurisdiction over homicide and physical G
violence outside the US where a national of the US is the
victim ........ "

(International Law by Malcolm N. Shaw page 665 [sixth
Edition])
H
SUPREME COURT REPORTS [2013] 4 S.C.R.
672

A 29. Therefore, I am of the opinion that the Parliament,
undoubtedly, has the power to make and apply the law to
persons, who are not citizens of India, committing acts, which
constitute offences prescribed by the law of this country,
irrespective of the fact whether such acts are committed within
B the territory of India or irrespective of the fact that the offender
is corporeally present or not within the Indian territory at the time
of the commission of the offence. At any rate, it is not open for
any Municipal Court including this Court to decline to apply the
law on the ground that the law is extra-territorial in operation
c when the language of the enactment clearly extends the
application of the law.

30. Before parting with the topic, one submission of Shri
Salve is required to be dealt with:

D Shri Salve relied heavily upon the decision reported in
Aban Loyd Chilies Offshore Ltd. v. Union of India and Ors.
[(2008) 11 sec 439], for the purpose of establishing that the
sovereignty of this country does not extend beyond the territorial
waters of India and therefore, the extension of the Indian Penal
E Code beyond the territorial waters of India is impermissible.

31. No doubt, this Court did make certain observations to
the effect that under the Maritime Zones Act;

" ...... ., India has been given only certain limited sovereign
F rights and such limited sovereign rights conferred on India
in respect of continental shelf and exclusive economic zone
cannot be equated to extending the sovereignty of India
over the continental shelf and exclusive economic zone as
in the case of territorial waters .......... "
G
32. With great respect to the learned Judges, I am of the
opinion that sovereignty is not "given", but it is only asserted.
No doubt, under the Maritime Zones Act, the Parliament
expressly asserted sovereignty of this country over the territorial
H
REPUBLIC OF ITALY AND ORS. v. UNION OF INDIA 673
AND ORS. [J. CHELAMESWAR, J.]
waters but, simultaneously, asserted its authority to determine A
I alter the limit of the territorial waters.
33. At any rate, the issue is not whether India can and, in
fact, has asserted its sovereignty over areas beyond the
territorial waters. The issue in the instant case is the authority B
of the Parliament to extend the laws beyond its territorial waters
and the jurisdiction of this Court to examine the legality of such
exercise. Even on the facts of Aban Loyd case, it can be
noticed that the operation of the Customs Act was extended
beyond the territorial waters of India and this Court found it C
clearly permissible although on the authority conferred by the
Maritime Zones Act. The implications of Article 245(2) did not
fall for consideration of this Court in that Judgment.

34. Coming to the second issue; whether the incident in
issue is an "incident of navigation" in order to exclude the D
jurisdiction of India on the ground that with respect to an
"incident of navigation", penal proceedings could be instituted
only before the Judicial Authorities of the "Flag State" or of the
State of which the accused is a national.
E
35. The expression "incident of navigation" occurring under
Article 97 of the UNCLOS is not a defined expression.
Therefore, necessarily the meaning of the expression must be
ascertained from the context and scheme of the relevant
provisions of the UNCLOS. Article 97 occurs in Part-VII of the
F
UNCLOS, which deals with "HIGH SEAS". Article 86 stipulates
the application of Part-VII. It reads as follows:

"The provisions of this Part apply to all parts of the sea
that are not included in the exclusive economic zone, in the
territorial sea or in the internal waters of a State, or in the G
archipelagic waters of an archipelagic State. This article
does not entail any abridgement of the freedoms enjoyed
by all States in the exclusive economic zone in accordance
with article 58."
H
674 SUPREME COURT REPORTS [2013] 4 S.C.R.

A Further, Article 89 makes an express declaration that:

"No State may validly purport to subject any part of the high
seas to its sovereignty."

36. From the language of Article 86 it is made very clear
B that Part-VII applies only to that part of the sea which is not
included in the exclusive economic zone, territorial waters, etc.
Exclusive economic zone is defined under Article 55 as follows:

"Article 55: Specific legal regime of the exclusive
c economic zone: The exclusive economic zone is an area
beyond and adjacent to the territorial sea, subject to the
specific legal regime established in this Part, under which
the rights and jurisdiction of the coastal State and the rights
and freedoms of other States are governed by the relevant
o provisions of this Convention."

That being the case, I am of the opinion that irrespective of the
meaning of the expression "incident of navigation", Article 97
has no application to the exclusive economic zone. Even under
UNCLOS, Article 57 stipulates that "the exclusive economic
E zone shall not extend beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is
measured". It follows from a combined reading of Articles 55
and 57 that within the limit of 200 nautical miles, measured as
indicated under Article 57, the authority of each coastal State
F to prescribe the limits of exclusive economic zone is
internationally recognised. The declaration under Section 7(1)
of the Maritime Zones Act, which stipulates the limit of the
exclusive economic zone, is perfectly in tune with the terms of
UNCLOS. Therefore, Article 97 of UNCLOS has no application
G to the exclusive economic zone, of which the contiguous zone
is a part and that is the area relevant, in the context of the
incident in question. For that reason, the second submission
of Shri Salve should also fail.

H K.K.T. Writ Petition & SLP disposed of.

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