Tag Archives: Supreme Court of India

The Italian Marines Case – Two Years And Counting

25 Tue Feb 2014

Posted by in India, South Asia

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It is no surprise that even two years after India arrested Massimiliano Latorre and Salvatore Girone, two Italian marines on the MV Enrica Lexie, its courts are yet to resolve the case. After initial disputes over jurisdiction of the marines and a brief fear over their flight, Italy agreed to India’s adjudication over the case after the Ministry of External Affairs promised not to seek the death penalty. Since then, the case has hardly moved forward except to wade into the minefield of political posturing.

In March 2013, the Government of India announced the establishment of a special court to hear the case; this was largely to expedite a case that would have a direct impact on the country’s foreign relations. However, contrary to the MEA’s assurance not to seek the death penalty, the Ministry of Home Affairs decided to prosecute the Italians under the stringent Suppression of Unlawful Activities Act.

In response to Delhi’s sudden hard stance – the marines had been allowed to go home over Christmas and to vote last year – Rome recalled its ambassador, Daniele Mancini, to discuss the issue. The Italian foreign ministry condemned the “evident Indian inability to handle the issue” and has complained about yet another “unacceptable, deliberate delay” in the courts. While the Italian government summoned the Indian ambassador to register a protest, some Italians have taken to writing hate mail to the Indian Embassy and a live bullet was found in the mailbox a few days ago.

The invocation of SUA, unwittingly or otherwise, has consequences far beyond the immediate trial of the marines. The Italian government has told the Supreme Court of India that charging their marines under SUA is tantamount to declaring Italy a terrorist state. Rome has also approached its European Union counterparts as well as the United States to urge them to condemn India’s charge of piracy against the Italian marines. NATO has expressed concern over Delhi’s reckless expansion of the scope of piracy and terrorism as has the European Union.

The uncertainty over which law the Italians would be tried under even after two years – the GoI has changed its mind six times – led the SCI last week to ask the government to file an affidavit clearly specifying the law under which it intends to try Latorre and Girone. Buckling under international pressure, Delhi dropped the charges under Section 3(g) of the SUA which carried the death penalty if found guilty. The GoI insists that the trial will be held in India and hopes to retain charges under Section 3(a) of SUA which carry ten years imprisonment for the guilty. Italy has objected to the very notion of an anti-terrorism law being applied to its marines and asked that Latorre and Girone be allowed to go home until the trial starts.

The marines case did not make much of a splash in Italy two years ago when the marines were initially arrested; most Italians were content for the law to take its course. However, the inept handling of the case by the Indian government has put the issue in the spotlight in Italy and support for the marines has increased dramatically. Italy’s new prime minister, Matteo Renzi, has assured his countrymen that the “absurd and infuriating affair” will remain a priority for him. The Italian press has now even suggested that India’s ruling Congress party is trying to secure a quid pro quo between the case of the Italian marines and the AgustaWestland corruption scandal.

Unfortunately for Latorre and Girone who have already spent two years in limbo in India, the upcoming general elections make progress on their case extremely difficult. If the GoI releases them until charges are filed, or if it decides, by an uncharacteristic stroke of common sense, to diplomatic arbitration as Italy had initially suggested, there is little doubt that Sonia Gandhi’s Italian origins will be bandied about in the press and on social media. However, pushing on may reveal the weakness of India’s position, that the marines are culpable, at most, of homicide not amounting to murder. Indians might ask, then, why the case was not settled two years ago and the generous compensation package offered by Italy accepted. To a long list of election woes, the Congress may not wish to add yet another one.

There is no level at which this case has not  been mishandled by the government. From the initial claim over jurisdiction to the questionable permission for the marines to go home and now the indecision over what law to try the accused under, politics and public perception have been allowed to undermine the judicial process at every step. While two years to file charges may be considered quick by Indian standards, it is positively shameful in any modern democracy. The GoI’s behaviour has turned a non-newsworthy arrest into popular public support for the marines back home, a disinterested Italian press into one that hints at conspiracies and further scandals in India, and bystanding European nations into concerned Italian allies.

The Home Ministry has openly worked against the External Affairs Ministry (to what end can only be speculated) and harmed India’s ties with a friendly foreign power for the sake of Delhi’s incessant domestic squabbles. That no one in the government sees this for the diplomatic train wreck that it is or does anything about it makes one wonder if India’s leaders are indeed ready to play a larger role on the world stage that they often lay claim to. The tragedy of the two slain fishermen has now been compounded by the unreasonably long captivity of Girone and Latorre. Whether justice is forthcoming soon or not, India and its legal system have been made to look the part of a clown on the international stage.

This post appeared on Daily News & Analysis on February 27, 2014.

India’s Nuclear Millstone

30 Mon Sep 2013

Posted by in India, Nuclear, South Asia

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The India-US nuclear deal ratified, amidst scandal, in 2008 gave great hope to the country’s hopelessly inadequate energy sector. For the deal to be operationalised, however, India needed to create a nuclear regulatory framework for security and safety as well as liability. Such a framework consists of ex ante and ex post components, neither of which can stand alone. Ex ante legislation concerns itself with strict regulatory mechanisms to improve safety of nuclear operations and hopefully prevent a nuclear incident, while ex post legislation deals with compensation in the rare case of an accident. Security has been addressed by the Atomic Energy Act (1962), while the compensation question was only recently considered and addressed in the Civil Liability for Nuclear Damage Act (CLNDA).

The CLNDA has succeeded in upsetting all sides involved – some are insulted by the paltry liability limit of ₹1,500 crores, while others insist that allowing nuclear power plant operators right of recourse against suppliers will hamstring a nascent industry. Both are right…sort of.

Presently, India’s CLNDA applies to nuclear installations owned and/or operated by the Government of India [Art. 1(4)]. This includes all of India’s fleet of reactors, but a larger role for the private sector in the future will have to see this clause modified. Furthermore, the operator is not liable for damages caused by acts of personal negligence, war, terrorism, or the gods [Art. 5]. As far as the victims of a nuclear accident are concerned, the operator is solely liable for all damages [Art. 4]. This means that victims need not prove fault, merely that an accident has happened, to receive compensation. It also channels all responsibility for compensation to one source, the operator, so the victim is not burdened by following up with many players.

So far, so good. However, Articles 6 and 7 of the CLNDA caps operator liability to varying amounts depending upon the facility at which an accident may take place – nuclear power reactors ₹1,500 crores, reprocessing plants ₹300 crores, and research reactors ₹100 crores. A Nuclear Liability Fund, set up by levying contributions from each operator – in this case, the government-owned Nuclear Power Corporation of India Limited (NPCIL) and Bhartiya Nabhikiya Vidyut Nigam Limited (BHAVINI) – will help defray liabilities beyond the operator caps, and the Central Government stands in as the guarantor of last resort up to a limit of 300 million Special Drawing Rights (SDR). The government has reserved the right to raise these limits at any point in the future.

The ₹1,500-crore cap on operator liability has been considered low by most experts. In the event of a Level 7 INES (International Nuclear Event Scale) nuclear accident, damages could easily reach into the billions of dollars. The cap is undoubtedly low, but it must be understood in its context. International experience has been that a higher limit is built gradually as the industry expands and the insurance asset base increases. Actuaries calculate insurance limits and premiums based on the number of people covered, frequency of claims, insurance pool, safety protocols, operating track record, and other factors. Unlike other industries, nuclear insurers have few customers – in India, the government is presently the only client, but even in countries with private nuclear utilities, the number is still small.

The US nuclear industry, regulated by the Price-Anderson Act, increased liability coverage from an initial $60 million operator liability and $500 million government guarantees to a liability pool of nearly $13 billion today that includes an operators’ indemnity above private insurance and no government coverage. In France, the limit was set at €91 million but is now being raised to €700 million; in the United Kingdom, the limit has been in a phased increase from about €150 million in 1994 to the present €1.2 billion; Sweden has also seen its operator liability cap increase from around €350 million to €700 million; in Canada, a 1976 limit of $75 million has been raised to $650 million in 2008.

Insurance companies will also hesitate to insure single reactor facilities because a serious accident would probably render the main source of income, the reactor, worthless. Insurers therefore prefer to pool the risk of all facilities to create a larger asset base and allow a greater coverage while simultaneously lowering the cost. Thus, a large nuclear industry presents a greater asset base and will allow for a higher liability limit. India presently has only 14 civilian reactors, making a small collective pool. By comparison, South Korea, approximately the size of Bihar, has 23 reactors. It is only with the growth of India’s nuclear industry that operator liability will rise to reflect the actual cost of damages.

It must be noted here that India signed the Convention on Supplementary Compensation for Nuclear Damage (CSC) in 2010, allowing it access to a supplement of 300 million SDRs for damages beyond the first tier operator liability. As per Article IX of the CSC, 50% of this shall be for damages within the installation state and the remaining 50% for damages without.

The second bugbear in the CLNDA is the GoI’s decision to allow the operator to have a right of recourse against the supplier. While the operator’s right of recourse against the supplier in case of i) the nuclear incident arising out of an act or omission by the supplier with an intent to cause damage or ii) a contractual right of recourse has been well-established in international law, Article 17(b) of India’s CLNDA extends the scope of such a right of recourse to consider “consequence[s] of an act of [the] supplier or his employee, which includes supply of equipment or material with patent or latent defects or sub-standard services.” In addition, Article 46 states that the CLNDA provisions “shall be in addition to, and not in derogation of, any other law…and nothing contained herein shall exempt the operator.” This exposes the operator, and thereby the supplier, to additional proceedings under Indian law.

Sections 17(a) and (c) of the CLNDA are standard provisions under international law too, and can be compared directly with Article X of the Vienna Convention on Civil Liability for Nuclear Damage, Article 6(f) of the Paris Convention on Third Party Liability in the Field of Nuclear Energy, and even Article 10 of the Annex to the CSC. However, the expanded right of recourse against the supplier mentioned in Section 17(b) of the CLNDA has been objected to strenuously by international nuclear vendors on grounds that it violates international law and India’s treaty obligation to the CSC.

Supplier liability is an interesting notion that has been suggested in other countries too, with proponents arguing that exemptions are a hidden subsidy to nuclear vendors; given that the nuclear power industry has grown since the 1950s, it no longer needs such subsidies. This logic betrays a lack of understanding of nuclear economics – suppliers will pass on the additional costs of liability to the end consumer, the taxpayer, but the insurance industry will have to allocate funds to cover entities other than the operator. By making only the operator liable, the amount of coverage insurers can make available, via the operator, to the victims of a nuclear incident is maximum.

A second reason floated to pass liability on to suppliers is that there would be no incentive for them to improve their reactor designs otherwise. This is fear-mongering for two reasons: 1. regulatory requirements can force them to consistently improve on their designs, and 2. operators, cognisant of the liability they face, will veer towards safer designs and even a minor accident can affect the sales of a product line adversely.

The CLNDA has raised flags in France, Russia, and the United States, three of the world’s largest nuclear suppliers and important to India’s military and economic growth. While state-owned nuclear firms or firms with a large government stake such as Areva and Rosatom have expressed strong dissatisfaction with India’s liability law, private concerns such as General Electric and Westinghouse have declared that they would not enter the Indian market on such onerous terms. The impact of the CLNDA can already be seen – at Kudankulam, when India decided to retroactively apply liability to Russian-supplied reactors provided under a 1988 agreement, Moscow raised the price of the reactor, thereby passing the cost on to the consumer.

India’s leaders had arrogantly thought that the sheer size of their market would bring anyone to their doors; they have been proven horribly wrong. The nuclear renaissance everyone had expected from the Indo-US nuclear deal, even after five years, has not materialised. As a result, Delhi has started considering waivers to foreign companies or a curtailment of the duration of their liability to lure them to Indian shores. This will, in all likelihood, be found illegal by Indian courts. While a plain reading of Section 17 may suggest that clauses (a), (b), and (c) are distinctive and separate, they are interlinked. For example, if a contractual understanding between an operator and a supplier as per 17(a) can invalidate supplier liability in case of accident, can the same contract be extended to exonerate willful damage too? Furthermore, the Supreme Court of India (SCI) has declared in Krishna Bahadur v. Purna Theatre that a statutory right in favour of a party can be waived as long as no public interest or policy is adversely affected. In addition, Section 23 of the Indian Contract Act clearly stipulates that clauses of a contract would be unlawful if they go against the law or declared public policy. This was upheld by the SCI in Rattan Chand Hira Chand v. Askar Nawaz Jung in 1991.

Although Article 45 give the GoI discretionary powers to waive liability for some nuclear facilities, it stipulates that this power exists only in cases where the amount of nuclear material is insignificant.

In sum, the CLNDA appears to be a piece of legislation framed in the shadow of Bhopal than by pragmatism. The supplier liability clause and the vague additional torts clause will keep foreign vendors out of India – with the United Arab Emirates, Saudi Arabia, and China pushing hard on nuclear energy, India’s disorganised market, despite its size, is not a draw. These clauses do not make economic sense either; safety must be balanced by costs, probability and scale of accidents, and affordability – the reason everyone does not commute in tanks.

The liability limits are admittedly small, but these must be continually raised as India’s nuclear industry develops. It is unrealistic to expect the country’s insurance sector and nuclear industry to perform at European levels when they are half a century behind.

There is nothing stopping the GoI from setting an operator liability of ₹10,000 crores, but premia will be correspondingly high and nuclear power will become unaffordable. This is not something India can afford, environmentally or economically. Consider this: there are 115,000 premature deaths per year in India alone due to respiratory problems caused by coal, and there has been a shift for the worse in the climactic conditions over a startling 27% of the Indian landmass. The costs of myopia over the CLNDA are far greater than one realises.

This post appeared on Daily News & Analysis on October 05, 2013.

Diplomatic Immunity or Impunity?

14 Thu Mar 2013

Posted by in Europe, India, Italy, South Asia

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In the latest development of the Italian Marines case, the Supreme Court of India ordered the Italian Ambassador, Daniele Mancini, not to leave the country. This order, which is supposed to be in effect until March 18, is probably to give the SCI time to decide whether it wants to prosecute Mancini for contempt of court because the two marines he had stood as guarantor for will not be returning to India to stand trial. It is not clear what else this restraining order implies, or how the order is to be implemented, but India’s foreign minister, Salman Khurshid, has rushed to say that his government will comply with the Supreme Court’s orders. Interestingly, the former secretary-general of the Lok Sabha, Subhash Kashyap, has also been roped in to say that the SCI’s order is perfectly legal despite the Ambassador’s diplomatic immunity.

The last-minute face-saving exercise mounted by both the Government of India and the Supreme Court is not only farcical but also deeply embarrassing and probably illegal. As everyone and their grandmother knows by now, the Vienna Convention on Diplomatic Relations of 1961 expressly prohibits the mistreatment of diplomats. Article 29 states clearly, “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.” Furthermore, Article 31 provides, “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” However, though the article extends “immunity from…civil and administrative jurisdiction,” it stipulates three exceptions: 1. an action involving immovable property in the host state the diplomat is not holding on behalf of his state; 2. if the diplomat is involved as an executor, administrator, heir, or legatee as a private person and not on behalf of his country; and 3. any professional or commercial activity in the host state by the diplomat in his personal capacity, outside his official functions. Furthermore, as Article 32 states, a diplomat cannot claim immunity in the case of a counterclaim against a claim he has initiated.

Is diplomatic immunity absolute? Can diplomats act with impunity under the cover of their special status? In the landmark case of Empson v Smith, the judge ruled that “diplomatic immunity is not immunity from legal liability, but immunity from suit,” meaning that Mancini is expected to respect the laws of his host state and were he not to, the Italian Ambassador would be liable for his actions but cannot be sued unless his immunity has been waived. This understanding has come under much dispute recently, particularly in cases of grievous wrongdoing such as murder or crimes against humanity. No matter, Mancini’s contempt of court is not tantamount to either murder or genocide. It is true, as Article 32 of the VCDR also states, that immunity can be waived. Yet this is, obviously, unlikely.

The discussions of the International Law Commission are also interesting in that they reveal the thinking behind the VCDR. As the noted Austrian diplomat and jurist Alfred Verdross remarked, “it was inappropriate to describe inviolability as an ‘abstract principle.’ The principle of inviolability was generally accepted and applied in practice, while ‘self-defence’ and ‘measures to prevent the diplomatic agent’ from committing crimes or offences’ were simply exceptions to the application of the principle. AEF Sandström, the Special Rapporteur of the ILC, added that it must be understood that a diplomatic agent might not always be able to claim inviolability. This is the sense in which diplomatic immunity and inviolability was understood. However, the VCDR makes no attempt to distinguish crimes according to their gravity or their corresponding degree of immunity.

Empson v Simith makes it clear that though the Court may not proceed against a diplomat while s/he holds immunity, the proceedings are not null and void – the Court may, upon termination of immunity, revive the proceedings against the diplomat. This can be done even though he was entitled to immunity when the events concerned took place or when process was originally begun. Such action is not post facto since it was merely waiting for the procedural hurdle of diplomatic immunity to be removed. While personal inviolability is a physical privilege, diplomatic immunity is a procedural obstacle.

Although Kashyap claims that Mancini lost immunity when he stood as a guarantor for the return of Massimiliano Latorre and Salvatore Girone, the SCI record shows that Mancini did so as a representative of the Italian government, not in his private capacity, thus not being subject to the exceptions stated in Article 31 of the VCDR: “petitioner No.3, the Ambassador of Italy to India…Daniele Mancini…representing the applicant No.3…” However, the SCI may indeed argue that a crime has not been committed until the two Italian marines violate their return date, and restraining Mancini is merely an exercise of its right to “prevent the diplomatic agent from committing crimes or offences” despite the declared intent not to return by the Italian Foreign Ministry. This would raise the question, what will the SCI do after the date has passed? Will Manicini be free to leave? If so, the SCI notice to the Italian Ambassador is merely knee-jerk and symbolic.

There is also this to be asked – what does the GoI hope to gain by enforcing a symbolic gesture on a technicality? Surely, one can admit that healthy relations between India and Italy warrant the overlooking of a technicality (if it exists)? Yet India’s Ministry of External Affairs has rushed to uphold a dubious decision, probably made in haste, by the SCI. The right course of action would have been for the United Progressive Alliance government to file an amicus brief with the SCI declaring that the GoI requests the Court to overlook Italy’s renegation in the case of the Italian marines in the interests of India’s relations with a foreign power. Since foreign relations fall within the purview of the Executive, such a brief would be well within its rights to issue.

The unfortunate reality is that both the UPA government and the SCI have been caught with their pants down in this incident. In an effort to conceal and whitewash their incompetence, perhaps with an eye on the upcoming elections, the UPA has instead launched a blustering attack on the Italian government and taken refuge behind an ill-conceived SCI notice. Such behaviour will only lower India’s esteem in the international community. And yes, we voted, by omission or commission, for this government.

This post appeared on Tehelka on March 15, 2013.