In speaking of the events leading up to Italy’s refusal to send back its two marines, who were being tried in India for killing two Indian fishermen, a lot of reactions in the public sphere have labelled the Supreme Court’s decision to allow them to return to Italy as an act of carelessness and naiveté. Especially for critics with the benefit of hindsight, the allegation of carelessness is hardly focused or constructive. A more useful question to ask may be one flowing from parity.
When one reads the Supreme Court’s Order dated 22.02.2013, which allowed the marines to travel to Italy and vote under the supervision of the Italian Republic, along with the previous order dated 18.01.2013, it becomes clear that the Supreme Court is altering and relaxing terms of bail. Now, in the ordinary course, if an Indian being tried for a criminal offence was seeking the indulgence of being allowed to travel abroad, any Indian court would take the precaution of ensuring that personal bonds were executed by the accused, and surety bonds were executed by persons connected to the accused. While the monetary amounts these bonds represent are matters of judicial discretion, I like to think that the quantification of such bond amounts emerge from a risk-calculus, which forces the accused to internalise at least a substantial part of the risk of fleeing or recidivism.
In setting the conditions under which Massimiliano Latorre and Salvatore Girone were allowed to go to Italy, the Supreme Court did enter into some sort risk analysis. It took into account the fact that they had returned when they were previously allowed to travel to Italy. The undertaking of the ambassador was deemed sufficient to offset any risk, without there being any contingent monetary amount hanging in the balance. What prompted the Supreme Court, therefore, to treat these marines distinct from any other accused seeking bail terms that permitted foreign travel for special reasons?
One answer may be that the accused in this case were servicemen, and that members of the armed forces are a different class, treated differently even in India for the purposes of bail. The Supreme Court’s orders, however, do not reflect this. In any event, such an argument may not be plausible because, as per Section 7 of the Army Act, a person in the Indian Army who murders a civilian (subject to certain exceptions) will be tried like a civilian. Presumably, therefore, an Indian soldier will be subject to the same law in respect of bail, and the same risk-calculus would apply.
The only possible basis for differentiation, therefore, may lie in the fact that the case concerned foreign servicemen, and this affected the terms that the court imposed. The Supreme Court, plausibly, was extending courtesy to servicemen from another nation, in line with the courtesy that may have been expected by other nations in respect of Indian soldiers, especially when a diplomatic envoy was taking responsibility for their movements.
Italy’s Houdini act points to the fact that Indian courts should never again extend such courtesies and factor diplomacy into criminal procedure, or accept the undertakings of ambassadors unless there is an express waiver of immunity by the nation State in question under Article 32 of the Vienna Convention on Diplomatic Relations, 1961. As India mulls over the proper response in this diplomatic crisis, the lesson here may be that such cases should be looked at from the same lens of domestic law as other cases are viewed, strictly factoring in only those international law rules incorporated into Indian law, while leaving international relations to the executive.
Karan Lahiri is a lawyer and currently pursuing his LLM degree at Harvard Law School
The views expressed by the author are personal