The focus must be on adequate compensation for families of fishermen killed by marines
It may seem pragmatic to keep any pending litigation alive until all dues relating to it are paid and all legal issues are settled. However, it is somewhat puzzling that the Supreme Court of India has said it would keep the Italian marines’ case alive until “hefty” and “adequate” compensation is paid by Italy for the killing of two fishermen by its marines on February 15, 2012. The Court has indicated that it would not allow the closure of the trial until such compensation is paid. And it has ordered that the families of the victims be heard on this matter. Once the Union government has declared that it would abide by the ruling of the Permanent Court of Arbitration (PCA) at The Hague, which granted immunity to the marines and favoured Italy as the appropriate jurisdiction where they could be tried for the crime, it does not seem proper to delay the process of bringing closure to the matter. For one thing, the PCA, an arbitral tribunal that adjudicates disputes under the United Nations Convention on the Law of the Sea (UNCLOS), has itself ruled that India is entitled to compensation for “loss of life, physical harm, material damage to property… and moral harm suffered by” the captain and crew members of St. Antony, the fishing vessel involved, and mandated negotiations on the quantum. Second, it hardly needs emphasis that the pendency of the matter in court should not become a bargaining point that delays the reaching of a fair settlement. Continuing hearings may also be seen as India being reluctant to cease all criminal proceedings against the marines as per the ruling.
The Court’s resolve to obtain adequate and hefty compensation for the families of the victims is welcome, though it would be difficult to have a judicial determination of what quantum would satisfy these requirements. The Centre may have approached the top court for formal permission to close the pending trial proceedings as a matter of abundant caution. But as far as the law goes, it could have approached the trial court itself through the public prosecutor for withdrawal from prosecution under Section 321 of the CrPC. Too many legal tangles have already caused enough diplomatic rupture in the progression of the Enrica Lexie-St. Antony case since 2012. Article 253 of the Constitution, which says Parliament may enact a law to give effect to any international treaty or convention, has been cited to argue that in view of the arbitral court’s finding on jurisdiction being in conflict with the Supreme Court’s ruling in 2013 that the Union government alone can try the case, a law may be needed before the trial is closed. This is just needless quibbling as the conflict has ceased after India agreed to abide by the tribunal’s ruling in keeping with its obligations under UNCLOS. India’s focus should now be on negotiating for compensation and ensuring a purposive criminal trial in Italy.