The Italian albatross !

My friend Jaideep Prabhu,  has written a very well researched and argued post on the Italian Marines case – “The Italian Job” . As is wont between friends, picking up some arguments with him. Here goes:

First,  the decision to send the Italian Marines for Christmas was NOT taken by the SC, as Jaideep  suggests in his post, but by the Kerala HC. It is only in the second instance, when they were sent for voting, was the SC involved. The difference is vital. As Jaideep himself points out, while sending Marines for Christmas, the court ( Kerala HC) demanded and ensured a bond of Rs. 6 crores. The SC, which is the highest court in the land, settled for no surety when sending the Marines back a second time for voting. The question is why?

Second, between the Marines going for Christmas and returning and Marines going back again for voting, one vital, important and perhaps defining event took place. When the Marines went to Italy for Christmas and returned, their appeal in SC regarding who had jurisdiction to try them  – India or Italy –  was still pending. That matter was settled by SC unambiguously on 18th Jan 2013 – that India had jurisdiction. That is why when they returned the first time around, they had and incentive and hope that the SC might rule in their favor and the matter would end. When they went back a second time, that hope was gone. Thus the perfidy.

Third,  Jaideep seems to suggest all the while that India might have been better off dealing with this diplomatically from the start. Actually India did try this. When an equivalent of “blood money” was offered to settle the deal outside courts, GOI facilitated it. However, once a case is in court, as all murder cases must go, since it is not a private case, only the courts have the final view. So the blood money settlement deal offer went to SC which struck it down, emphasizing that there is no concept of blood money in IPC. The Supreme Court tied down GOI’s hands for any diplomatic deal and unless the GOI itself were to disregard the SC, how could it have settled the mater diplomatically?

Fourth, Jaideep seems to argue that going forward, India’s legal options may be limited. As has been argued by many, Italy through its ambassador, became a litigant in the SC. Someone who claims to enjoy diplomatic immunity from Indian laws, does not then become a litigant under the same law. Because if they do, perforce they are conceding that the law applies to them. Consider what Italy did – it appealed in SC, hoping to get a judgement in favor. Had it gone in favor, they would have argued that matter settled as even SC does not buy GOI stance. But Italy lost. Their argument now is that irrespective, let’s settle it diplomatically. That is like having the cake and eating it too. To now argue, that India should help settle is diplomatically, is actually asking India to help Italy have its cake and eat it too.

Fifth, When Italian ambassador approached the SC a second time in February 2013, to let the marines go for voting, implicit in the appeal was the acceptance of 18th Jan 2013 order that India had jurisdiction. So the talk of India not having jurisdiction , or that now India itself should take the matter to international arbitration post SC order, as some others have argued, is beyond pale. In addition the Italian ambassador submitted a signed affidavit in SC. That one only does, when one submits to the jurisdiction of the court and appeals to the court based on the laws that govern the court. Common sense would tell, a sense to which Arun Jaitley, Leader of Opposition in Rajya Sabha and Harish Salve, former counsel of Italy agree, that once having submitted to jurisdiction of a court, one cannot revert later that the court has no jurisdiction. Therefore, diplomatic immunity, as is being claimed now, would also seem to not hold and the Italian ambassador can be clearly held in contempt and sent to jail.

Sixth, the author laments that fact that Sonia Gandhi’s name has been brought into the case rather unnecessarily. Consider the facts of this case first, and some other instances :

A) Kerala HC, which let the marines go first time, imposed much stricter clauses before letting the marines go.  This when they still had incentive to come back. When matter came to SC, and when GOI was now arguing (instead of Kerala state earlier), and when marines had no incentive to come back, no such conditions were either demanded  by GOI counsel nor  imposed. The question is, why?

B) The SC in its 18th Jan order asked for setting up of a special court, in consultation with the SC,  to try the marines. How much time should it take to do the same? GOI itself did it very expeditiously in case of the unfortunate Delhi gang rape case. In this case though, when the matter went to SC again on 23 rd Feb, the GOI, a month later, had still not moved on setting up the court. The Supreme Court was aghast at the delay and asked in anguish:

‘”If the special court had been expeditiously set up, the trial could have been over by now. Why is the Centre dragging its feet over the matter? Nobody has initiated any consultation process till now”.

The Supreme Court further asked the GOI counsel, P.P. Malhotra, if they intended to initiate the consultation? To even this, GOI counsel had no answers !  The GOI counsel, who presents in court the argument which his client, in this case the GOI, asks him to, had no idea whether GOI intended to set up the court at all. The question then is – why would the GOI drag its feet on a SC order? Under what compulsions? What was the motive?

C) When the Bofors scandal broke, it was argued that no connection should be made to a family even though Quattrocchi had been named. It would be “xenophobic” to impute such a connection, argued some.  However, events slowly offered a peak  into the true  nature of what was the actual deal. When then Indian foreign minister, in a Congress regime, intervened to let Quattrocchi walk free in 1993, there were protests in India. The foreign minister had to resign. However, it was still argued that there was no evil design in this. The next Congress regime,  on taxpayers money, sent its Law Minster to England to free Quattrocchi’s sealed back accounts. Which government is so benevolent towards a citizen of a third country? Yet, it was again argued that no sinister motive in this. Do we beleive the protestations of innocence in Quattrocchi case ? If not, they why not?

D) The Augusta Westland scandal is is too well  known to bear repetition. “The Family” has been named as the prime recipient of the kickbacks in the case. Who is  referred to as “The Family”? When in 1987, the Bofors story broke, many found it implausible to believe that there could be a connection with Quattrocchi and a family. Hardly anyone doubts it now. Same pro forma arguments are being offered again that no connections between “The Family” and kickbacks in Helicopter deal. Does anyone beleive it in light of past experience?

As James Bond famously said, “Once is happenstance. Twice is coincidence. Three times, it’s enemy action.” Arun Jaitley agrees too. Who does not?

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4 thoughts on “The Italian albatross !

  1. rishi bhardwaj says:

    Its extremely well thought and equally well written. i don’t have any soft corner for the italian envoy but would still maintain that acting as a guarantee or security for the marines does not tantamount to a criminal act and therefore his confinement is logically not right. what can be done though is that his passport may be seized. one really needs to think through his hat to believe that the family has nothing to do with this whole episode.

    Like

  2. Thanks for a detailed and thoughtful reply. To clarify or disagree, as the case may be:

    1. Indeed. That is the same question I asked. I’m not sure why the difference is vital, but it was certainly a lapse on the part of the SCI. I should add a question here – when the Italian Ambassador said that the marines were not able to vote in their present circumstances, did the SCI ask what those circumstances were?

    2. It is not in dispute that the marines returned on January 4, 2013, and the SCI handed down its judgment two weeks later. The decision is certainly probable cause for the non-compliance of their bail the second time around.

    3. This assertion is problematic on many counts. First, the Italian government did pay the families compensation of Rs. 1 crore each. Second, the issue is not whether the Kerala High Court or the SCI has a murder case going on; Italy’s dispute is that India has no jurisdiction, or at least, not exclusively. Until this is resolved, any Indian legal action towards processing this trial is useless and its authority not accepted.

    4. The SCI record states, “petitioner No.3, the Ambassador of Italy to India…Daniele Mancini…representing the applicant No.3…” Clearly, this was not the submission of Daniele Mancini himself but his action in an official capacity. So Mancini is not the litigant but Italy is, and is represented by its ambassador, Mancini. Now here is another interesting bit – the media reported on March 26 that the Italians had accepted Indian jurisdiction over the case. However the Kerala High Court records indicate that even on May 29, the Italian team had questioned jurisdiction of India on Italians in the EEZ and had not, in fact, accepted Indian jurisdiction on their soldiers. I am not sure what to make of this – either the Court records are wrong, or the media needs journalists with better English skills!

    5. The Italian Ambassador’s alleged waiver of immunity was mentioned at the beginning of Point #4. As to the approach of the Italian government, via its ambassador, before the SCI, such action cannot be seen as an acceptance of Indian jurisdiction over the dispute over UNCLOS and subsequently the conduct of the marines. It is an acceptance of the fact that the Italian marines are detained by India and the proper procedure to follow would be to petition the body in charge. Since the SCI held the matter, the Italian government approached the Court. Had permission rested in the hands of the Inspector at Chanakyapuri police station, the Italians would have approached him.

    6. 🙂 The author does not “lament” the unsubstantiated accusations against Ms. Sonia Gandhi but merely questions the relevance, and indeed, connection to the dispute in interpretations of the UNCLOS…or for that matter, the non-return of the Italian marines to India after they had cast their votes. While many might take glee in reports that are, as of yet legally unsubstantiated, it does not inform the case in any manner. Assuming for a minute that the allegations are true, it only creates a new case regarding the matter of executive influence on the judiciary and does not affect the dispute over the marines and the understanding of India’s rights in its EEZ. To ascribe any emotion other than frustration to the author would be mischievous by Sri Mishra 🙂

    Like

  3. asha says:

    Jaideep/Mishra Ji,

    HR Bhardwaj who was the law minister responsible for de-freezing Quattrochi’s bank accounts in England was rewarded with Governor’s post in Karnataka for his services to the “Family”. He is busy wrecking havoc on the BJP government in the state. As law minister he was also responsible in a way to give NOC from CBI to close the case against Quattrochi. So as the old saying goes…”If it walks like a duck and quacks like a duck..it must be a duck”

    Like

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