India: A Case Study
September 24, 2011 Leave a comment
Dear Readers, I have asked M.R. Shamshad, an advocat on record with the Supreme Court of India to provide his insight on the challenges faced by India in combating piracy. Mr. Shamshad is a qualified lawyer based in New Delhi and practicing on a diverse array of issues. Many thanks for his contribution!
Before I hand over to Mr. Shamshad, let me provide some background. India is one of the states most affected by the crime of piracy. As a traditionally sea-faring nation, Indians crew many of the ships in international transit and have suffered as a consequence. Between 2007 and 2011, 495 Indian seafarers were held hostage by Somali pirates. In addition, international efforts to protect the Gulf of Aden have pushed Somali pirates to seek out new targets across the Indian Ocean. In the last year, there were a dozen attacks around the Lakshadweep area in India. The Indian Navy has intensified efforts to combat piracy by participating in EUNAVFOR and patrolling off of its own shores. As a result, the Indian Navy and Coastguard captured 120 pirates in the Arabian Sea and held them in custody in Mumbai. For a tactical assessment, see this interview with Commodore RS Vasan of the Center for Asia Studies. However, the legal framework is not yet in place to fully prosecute these pirates under Indian law and the TFG’s Ambassador to India has asked that these pirates be returned to Puntland and other regions of Somalia. Mr. Shamshad takes it from here:
Legislations against Piracy in India:
Currently, ship safety and security are handled by the International Maritime Organization (IMO) under the International Ship and Port Facility Security Code, which itself is an amendment to the International Convention for the Safety of Life at Sea (SOLAS) of 1974/78 and came into force in 2004. At the international level, Sections 101 to 107 of the United Nations Convention on the Law of the Sea (UNCLOS) relate to sea piracy. But India has still been unable to adopt and form any express municipal legislation to tackle this issue.
Hence to fill this present lacuna the Indian Government has very recently decided on formulating a new express municipal law to tackle piracy. The new law would deal with acts of piracy and other complicated issues on the high seas. Impetus has also been provided by the Supreme Court asking the Centre to come out with a comprehensive law and compensation measure.
Presently there is a need to adopt a domestic law on the subject. In India, piracy issues are tackled by the provisions of Indian Penal Code and the Admiralty law. A draft law is ready and it has gone to the law ministry for final vetting before it goes to parliament. It is likely to be taken up for passing in the next session of Parliament. The draft legislation also prescribes punishment for different acts that constitute piracy under the law. The draft law clearly defines what actions constitute piracy and who would be called a pirate, apart from listing out the legal framework for apprehending them, be it in Indian or international waters, and for prosecuting them in Indian courts. But details of the punishment are not yet final, as it is now under scrutiny for inconsistencies or other things with the law ministry. On nearly a dozen occasions since October 2008 when India joined the anti-piracy operations in the Gulf of Aden, its navy has had to empty the fuel on pirate’s speed boats and let them to drift in the high seas, as nabbing them would raise questions as to where they would be prosecuted and which foreign port would take them into custody.
The ministry of shipping on 30.08.2011 issued guidelines allowing ships with Indian crew to deploy armed guards in a bid to combat piracy in the Gulf of Aden. The move comes on the back of recommendations from the inter-ministerial group (IMG) of officers constituted to handle the hostage situation on hijacked ships and also suggest preventive measures.
In the absence of anti-piracy laws, India charges these pirates under Indian Penal Code with trespassing (Sections 441 & 447), waging war against the country (Section 121), attempt to murder (Section 307) and armed robbery (Sections 397 & 398) against pirates, many of whom are believed to be minors that have been apprehended so far. In India individuals below 18 years of age are considered to be minors and are tried under the Juvenile Justice Act. At present, piracy is dealt with under the provisions of the Indian Penal Code and century-old Admiralty law but the government is planning to have a separate statute with provisions to effectively tackle the problems that take place far away from Indian shores. This apart, though India has ratified the UN Convention on Laws of the Seas, it needs to enact a law to bring it into force.
For further reading, see the excellent resources available at the Indian branch of Oceans Beyond Piracy.