Caught between its assurance of not demanding a death penalty for the two Italian marines and serious differences among key ministries on how to proceed in the sensitive case, the government finds itself in a tricky situation.
The government has to file a status report before the Supreme Court next week on the progress of setting up a special court for deciding whether India has the jurisdiction to hold the trial, but its problems are far from over.
The home and law ministries had agreed on handing over the investigation of the case to the National Investigation Agency (NIA), which had lodged a fresh case against the two marines last week, leading to strong protests from the Italian side.
A day after the First Information report (FIR) was lodged, the Italian Prime Minister on Friday conveyed "deep sense of concern" to external affairs minister Salman Khurshid and followed it up with another call to Prime Minister Manmohan Singh on Tuesday about the violation of the assurance that charges involving death penalty would not be slapped against its marines.
The Italian government is agitated against the NIA's decision to apply section 3 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (SUA).
This section makes it clear that "any act causes death to any person shall be punished with death sentence." This, according to Italians, flies in the face of the explanation from India that according to well-settled Indian jurisprudence, this case would not fall in the category of matters which attract the death penalty – the rarest of rare cases.
Though the home ministry has offered a new solution by invoking the relevant section of the Extradition Act, 1962, which states that if any foreign national, returned by his country on the request of the central government, is found guilty of having committed an offence punishable with a death sentence, can only be given life imprisonment.
The MEA, however, has reservations on booking the marines under the SUA Act. The law ministry is also reluctant to endorse invoking of conflicting provisions of different laws in the high-profile case.
The homer ministry wanted the MEA to be the administrative ministry for setting up the special court, which the latter has refused. Also, the possibility of the shipping ministry setting up the court was also explored, but it did not work out.