Karan Thapar: Hello and welcome to Devil's Advocate. How effectively has the Indian system tackled the Italian marine crisis? That's the key issue I shall explore today with one of India's leading lawyers, the former lawyer of the Italian embassy, Harish Salve. Mr Salve, let's start with the government's handling and later come to the Supreme Court. Given that from the very outset, the Italian government had contested and not accepted the jurisdiction of Indian courts and secondly, given that the Indian governments claimed that the incident happened in Indian territorial waters, turned out to be blatantly wrong, should India have taken this issue either to International Tribunals or arbitrations, rather than try and force the Italians to accept a verdict under Indian law.
Harish Salve: Well, it's a very important question you are raising and I must tell you, on merits, what you are saying is on the merits of the case, I think the Italians had an excellent case. The incident happened in the Indian, the contiguous waters outside Indian territorial waters. The vessel in question was a Tamil Nadu coastal registered vessel which had the authority only to be within 12 miles of Tamil Nadu's coastal zone. The vessel was way out of line. The Italian vessel had marines deployed and these marines were deployed under Italian law. In Cooperation Treaty promoted by the UN, to which we are parties, because we are a high piracy risk zone, in a situation like this possibly the better course for resolving it would have been international arbitration.
Karan Thapar: In fact the truth is that even the Supreme Court in its judgment of January the 18th, when they ruled that India could try the case, actually not just permitted but even encouraged the Italians to raise the question of jurisdiction at the special court. Doesn't that suggest that ultimately the Supreme Court left the issue of jurisdiction fairly wide open?
Harish Salve:Totally. For the reason, that all that was required to be done in the first instance is if and when the court was constituted, and all this had not happened, the first thing I would have done is put the Italian witnesses, who would have proved Italian law, who would have proved why the marines were deployed, and that may have been the end of the case.
Karan Thapar: In fact, if you had then succeeded, the consequence would be that the special court would have ruled, that India doesn't have jurisdiction.
Harish Salve: Absolutely.
Karan Thapar: And jurisdiction would have either transferred to Italy or somewhere else.
Harish Salve: Italy. And the rule then would have been if we feel that the marines acted out of line, like if there is a complaint against Indian soldiers patrolling somewhere you lodge a complaint with the Indian Army, we would have lodged a complaint with the Italians, who would have prosecuted them under Italian law.
Karan Thapar: So what you are saying, and I am just repeating it because it is so important, is that if the present problem that has occurred hadn't happened and if the Italian marines had returned as they had promised to do so, then the special court in all likelihood would have concluded that in fact the jurisdiction is not with India and the case would have then transferred to Italy and an Italian court would have heard it. And in fact any way, there is a case in Italy.
Harish Salve: Yes.
Karan Thapar: The second thing you are saying is that being the case, with hindsight, clearly it would have been better for India to have agreed at the outset to handle this either by arbitration or through some international tribunal because we have effectively then just wasted a year and a half.
Harish Salve: Absolutely, you are absolutely right. This is where we dither. Every time we dither. We are not willing to take a firm position. You always try and see which is the softer option and this is where you end up in a mess.
Karan Thapar: Was it bad legal advice that misled the Indian government or was it some mistaken form of nationalism that this has to be handled in an Indian court.
Harish Salve: If you ask me, the reason was a third reason. The arrest began in Kerala, we had election, and there was a bi-election in Kerala and I am told, and I don't know how accurate this is, that the government was pretty precariously poised. There were one plus, now if they lost this one it would have squared off and the government would have fallen. There was huge sentiment in Kerala and that is why the Union Government just sought of toed the line because they didn't want to rock the boat.
Karan Thapar: So, domestic Kerala politics and the impact that would have both on the state government in Kerala and possibly the central government, coloured the manner in which the Central Government handled this issue.
Harish Salve: I have no doubt about that.
Karan Thapar: Now given that the central concern here is the concern of jurisdiction, did the Central Government proceed to make the matters even more damaging and worse by failing to set up the special court, because even today two months have passed, and the special court doesn't exist.
Harish Salve: In fact, some day if a story is written on how the government has been handling the whole matter relating to our seas, it will be a very sad story. We made a law, the Marinetime Zones Act. It is clearly not properly drafted. There are circulars in public domain which we produced in court, which the government started denying in the Supreme Court.
Karan Thapar: Denying its own documents?
Harish Salve: Yes, saying well this is somebody's personal opinion and etc, when there were serious exchange of correspondents, circulars, clarifications on how the economic zone law is to work. Secondly, if you make an economic zone law, which is going to operate beyond your territorial jurisdiction, you must have a federal police. You don't have a federal police. You don't have a federal court. They would have had to establish a court by law.
Karan Thapar: Is this the reason why... are these the reasons why, in the plural, why that special court that the Supreme Court wanted to set up on 18th of January still hasn't been set up and we are on the 17th of March?
Harish Salve: Oh absolutely, they have. They are in a bind. Let me just tell you a small detail, the chargesheet is quashed. Who will file a new chargesheet? A police who has the power to investigate.
Karan Thapar: But they don't know who that police is.
Harish Salve: Not Kerala. Then who else?
Karan Thapar: So, you are saying, a second very important thing, whilst the dispute over jurisdiction continued and whilst the government prevaricated over setting up a special court, we reached a piquant situation because in the meantime Supreme Court had quashed the case in Kerala and that meant that there were no charges framed by a court that faced the Italian marines.
Harish Salve:They are with an FIR.
Karan Thapar: Just an FIR, nothing more?
Harish Salve: And that too, Supreme Court used their 142 jurisdiction. The FIR itself is by the Kerala Police who has no jurisdiction. You are in a bit of a hole there.
Karan Thapar: In fact, you are worse than a hole. Because, as now you are saying to me, they don't know who the police are that are going to file the new FIR and file the new case in the court. They haven't got the system to do it, they haven't got the laws to do it. So, suddenly the Supreme Court had ordained that a special court be set up but none of the mechanism or the system or any of the rest of the paraphernalia needed, existed.
Harish Salve:Absolutely, and they were obviously unprepared for all this.
Karan Thapar: In this situation how understandable is the frustration of the Italians, who suddenly found that their marines were being detained in India, the Supreme Court had quashed the case in Kerala against them, fresh charges had to be filed but the court in which they will be filed didn't exist, the police and the laws to do so didn't exist, the paraphernalia doesn't exist and yet, the marines continues to be detained.
Harish Salve:And that is why Karan if you see the last line of the Supreme Court order, which permitted them to travel added a very important sentence, government must explain that why the court isn't being set up. That was one of the things which weighed with the court. You are, after all, detaining two foreigners; they have been here for a while. If they want to go home and vote and they are undertaking to come back and you have not set up a court, we allow them to go.
Karan Thapar: In other words the court was clearly indicating that their anger over the delay was projected directly over the government and the Italians would be the beneficiary and the court understood the frustration the Italians were feeling at being detained without a system there to try them.
Karan Thapar: In fact the Supreme Court Chief Justice on the 22nd of February said, and this is how the papers reported it, it was obiter dicta, I wanted you to confirm that this is actually what was said. "Why is the Centre dragging its feet? If the court would have been set up the trial in the case could have been over. Why is it late? It would have by now decided whether they are guilty or not."
Harish Salve: Small correction. He says it would by now have decided the matter of jurisdiction.
Karan Thapar: And that would have determined whether India can try it or whether it goes back to Italy.
Harish Salve:Because you see after all the judges also realise here are the rights of two human beings, who are being held by somebody who may not have any jurisdiction over them.
Karan Thapar: And therefore, wrongly held.
Harish Salve: Therefore wrongly held. And they were not rogues or pirates, they are officers of a military force. You are holding them, without a court, without a system.
Karan Thapar: And therefore without possibly the right to hold them.
Harish Salve:That's right.
Karan Thapar: In which case I come back to the question I began with, the frustration that the Italians felt when their marines were being detained but there is no prospect of the case going ahead because the courts doesn't exist, the law doesn't exist, the paraphernalia doesn't exist. That frustration is pretty understandable.
Harish Salve: Oh yes. And that is why there was a big rumpus in Italy. There was a political rumpus in Italy saying our boys are sitting there without a court, without a law. What's going on?
Karan Thapar: And none of this was understood or appreciated in India.
Harish Salve: Because this is all not coming to the public domain.
Karan Thapar: One last question about the government's handling before I switch and talk about the Supreme Court. In February 2012 when this incident happened, the Italians offered joint investigation presumably leading to some form of joint handling and at that time, Indian government turned down the offer. With hindsight, would it have been better to accept it?
Harish Salve: I think it was a fair offer the Italians had made at that time. They said look if our boys have acted contrary to our protocol, because you can't judge them by Indian Army protocol, you will judge them by the Italian marine protocol, complain to us, there are prosecutors, they are independent of the government, they will take custody of these two boys, they will conduct a full enquiry and they will prosecute them. Now you have made these two boys heroes in Italy by detaining them illegally. Now everything gets tainted. If you would had agreed to it in good time, as a gesture saying fine you prosecute them, things would have been different.
Karan Thapar: Now that very process in Italy have been impaired by the fact you have made two of them heroes.
Karan Thapar: In other words what we are saying is that the Indian government has in many respects badly handled this case.
Harish Salve: I have no doubt about that. Right from day one they have been playing, they have rather been dictated to by sentiment, rather that cold hard diplomacy on which this decision should be based.
Karan Thapar: Let's now come to the Supreme Court's handling. There is a view that the Supreme Court has been indulgent or unnecessarily lenient in permitting the marines to go back home in February for the second time, just six weeks after they went back for Christmas in December.
Harish Salve: Karan, if the Supreme Court was not indulgent to the government of India's lapse, they could have said simply this, Kerala has no jurisdictions, proceedings quashed. Marines would have been on the plane that very night. Bye bye India. The court leaned in favour of Indian public interest and said, however, we would like the issue of India jurisdiction to be decided, we will not allow the marines to go. So, the Supreme Court first stretched out and kept the marines back. It's the first time in my little limited experience of three decades plus that two people are in custody of the Supreme Court. Bail had to be granted by the Supreme Court, they were reporting to Chanakyapuri police station. They are not Delhiites, they are not here. The Supreme Court could have just said, Kerala has no jurisdiction, their arrest is illegal, quashed.
Karan Thapar: So, in fact if the Supreme Court has been indulgent and lenient, it's not to the Italians, it's to the Indian side.
Karan Thapar: And in fact there was a very good case for the Supreme Court simply quashing and dismissing the case altogether, rather than setting up a special court to examine whether there is Indian jurisdiction.
Harish Salve: Precisely, they could have told the Indian government, do whatever you want, Kerala has no jurisdiction. End of story.
Karan Thapar: Now, on the specific question of the bail that was granted or rather the permission that was granted to the marines in February to go back. At that time, did the Indian Central Government oppose the Italian petition that the marines should go back for voting?
Harish Salve: Neither in December, when the case was pending in Kerala, nor this time did the government oppose. In fact, to the best of my recollection, they have filed some sort of an affidavit saying some sort of an undertaking etc has to be given. But there was no opposition, in fact they were very red-faced in court because the court said what have you done to our direction.
Karan Thapar: Is one explanation for the fact that neither in Kerala nor in the Supreme Court in Delhi did the Central Government oppose the permission for the marines to go back, the fact that in their heart, even if they didn't say it publicly, the lawyers for the government knew that the merits of the case were not in their favour.
Harish Salve: That's hazarding a guess but I don't think that guess would be off the mark.
Karan Thapar: And would that also be true of the Supreme Court when the Supreme Court was asked a second time, can we go back and vote. Would the Supreme Court had said yes let them because (a) we have got question marks in our mind whether jurisdiction lies in India and (b) a special court has to be set up, and even though we can't say publicly but we know that the laws, the paraphernalia aren't fair and there will be a long delay and therefore for all these reasons, we are going to give the benefit to the Italians, let them go back and vote.
Harish Salve: It's articulated in the order, let me tell you why. The Supreme Court order says we, as I told you they could have just quashed Kerala and let them go, end of story. They create a situation in which they thought the Government of India, if it was serious about these boys, could act overnight, we have ordinances overnight, would act overnight. When I say overnight, I mean two days, three days, five days and set up a court.
Karan Thapar: And none of that happened.
Harish Salve: And then takeover. Now you are almost two months from the judgment, the government is doing nothing. So, the court feels, have we sort of kept these boys back? The government is not doing anything. They want to go back and vote, they are giving an undertaking, the government is not particularly opposing. Let them go.
Karan Thapar: My last question before I take a break. The Leader of the Opposition in the Rajya Sabha on the floor of the Rajya Sabha claimed that the Italian ambassador had lied to the court when he said that the marines need to go back and vote. Mr Jaitley claims that in fact that the Italians non-residents can vote by postal ballot. Now as the lawyer of the Italian government at that time, did you verify the statement?
Harish Salve: I checked the statement, I asked him. The Italian laws are in Italian language, so I said get me an expert's opinion on affidavit. He got that verified. I said put it on affidavit, so he put it on affidavit which said there are two-three categories of people who are allowed to vote, not everybody. Now please appreciate...
Karan Thapar: And the marines didn't fall in that category.
Harish Salve: What was their status in India? Were they Indian prisoners? Were they being tried in India? Were they charged in India or were they deployed in India?
Karan Thapar: Hence the question mark.
Harish Salve: If they had been posted in India, of course they would have had a right to vote.
Karan Thapar: But they weren't posted.
Harish Salve: They were not posted.
Karan Thapar: The nub of which is, that the Italian ambassador didn't lie and Mr Jaitley in his accusations made on the floor of the House was wrong.
Harish Salve: I think his accusations were inaccurate because of what I know and what I was told by the Italians.
Karan Thapar: Inaccurate is a politer way of saying wrong. Mr Salve let's come to the issue of Daniele Mancini, the Italian ambassador, and diplomatic immunity. Under Article 32 (3) of the Vienna Convention, when the ambassador petitioned the Supreme Court for his marines to go home, he ipso facto submitted himself to the jurisdiction of the court and in the process waived his immunity. The key question is, was that a limited waiver of immunity or a comprehensive waiver of immunity?
Harish Salve: I think the question of immunity is really something which wouldn't arise for the simple reason, immunity is when you are being dragged into a legal system and you say I am beyond it. When you are moving a legal system, you are petitioner in a court, you are seeking relief from a legal system, where is the question of immunity? He went to the court saying, allow my two marines to travel on my assurance to you, where is the question of immunity there?
Karan Thapar: So, if I understand you correctly, you are saying that the clauses and articles of the Vienna convention apply only if the Indian government is seeking to impose the Indian legal system over the Italian Ambassador. But if the Italian Ambassador himself goes to the court and himself petitions the court and himself asks the court if he can plea before them, then the question of immunity doesn't arise.
Harish Salve: Obviously. One quick example, which will bring the point, suppose he lies in a pleading to the court and the court says you have perjured. Can he say I have immunity? I can petition you but I can lie.
Karan Thapar: So, the distinction that many diplomats, including Kanwal Sibal, the former foreign secretary in our sister programme 'The Last Word', make between Article 32 (3) of the Vienna Convention and Article 32 (4), which says that beyond jurisdiction you need a second waiver of immunity before any order or judgment of the court can be executed. You say that distinction doesn't apply in this case at all.
Harish Salve: No it doesn't, when you are subjecting somebody to jurisdiction, it is at two stages - first, the hearing of the case and second in enforcement. Here he is the petitioner.
Karan Thapar: That also means that the Supreme Court's order to the Italian ambassador that he mustn't leave the country can be enforced by the Indian government and if he did so, it would not be breaching the Vienna Convention.
Harish Salve: No not at all. Strauss Khan was held back in New York, wasn't he?
Karan Thapar: But he did not have diplomatic immunity. He was the member of IMF which I think is a separate issue.
Harish Salve: He had a diplomatic passport.
Karan Thapar: I don't think the head of IMF have diplomatic immunity.
Harish Salve: Well...
Karan Thapar: But your point applies here. Regardless of the Strauss Khan example, if this instance what you are saying is there would be no questions because he is a petitioner.
Harish Salve: And Supreme Court's orders would have to be carried out by all.
Karan Thapar: So the opinion of Kanwal Sibal that the order of the Supreme Court restraining the ambassadors from leaving the country is unenforceable, is a wrong opinion.
Harish Salve: Completely wrong, it has to be enforced by the police.
Karan Thapar: Let me then come to my last question. On Monday, the Italian ambassador has to explain to the Supreme Court why his government has decided that the marines won't return to India. Are there arguments that he can present that might encourage the court to accept the decision of the Italian government and secondly, not constitute it as contempt of court.
Harish Salve: If he does, I think the whole of India is waiting with baited breath to hear them. I doubt but let's see.
Karan Thapar: What about one thing. In part one, you indicated the reasons why the court understood the frustrations of the Italians, in particular the two marines who were being detained without really facing charges, without a court to try them, the government delaying setting up the court and therefore they were being held and one didn't even know what their status was, if the court could understand all of that in February, might that understanding not apply now?
Harish Salve: It's settled law that even an injunction or undertaking to a court which has no jurisdiction, if breached, you are in contempt.
Karan Thapar: So, the real problem is that the Italian Ambassador breached a solemn undertaking and he is in contempt of the court and he will find it very heard to explain, leave aside satisfy the court, why he breached the solemn undertaking.
Karan Thapar: Will the court take action against him?
Harish Salve: They will, the question is what? We wait and see.
Karan Thapar: Whatever that action is, by your interpretation of the situation, it is enforceable. Enforcing it won't be a breach of the Vienna Convention.
Harish Salve:Our Constitution commands everybody will act in aid and according to the directions of the Supreme Court.
Karan Thapar: Very quickly, could then the Italian Ambassador end up in jail?
Harish Salve: Theoretically yes.
Karan Thapar: But in practical likelihood?
Harish Salve: Depends on how the Supreme Court wants to deal with him. But they can, if they want to, send him to jail.
Karan Thapar: There is room for the Supreme Court to be understanding?
Harish Salve: There always is.
Karan Thapar: Mr Salve, a pleasure talking to you.