Saturday, March 03, 2012

Reforming Maritime Laws in India

Recent developments in Kerala owing to killing of Indian fishermen by armed marines boarded on Italian Vessel Enrica Lexie, has left open multiple legal questions, keeping lawyers awake for the past two weeks. The primary question was whether the marines accused of murder, be tried in Indian Courts as per Indian law, or whether Italian law be applicable being the law of flag state..? As of now, this question seems to be settled as the incident happened in the contiguous zone wherein Indian law is partially applicable so as to cover incidents of crimes, giving Indian Courts jurisdiction over the matter. Further, the vessel is currently berthed at Indian port and is cooperating with the investigation process.

However, it was visible that the domestic legal system was unprepared for such an event. True that this incident is first of its kind in India, but having a closer look at the existing laws concerning maritime (admiralty) law in India, we have reasons to be concerned. A section of jurists strongly contend that the provisions of a special statute Admiralty Offences (Colonial) Act,1849 read with Indian Penal Code,1860 will be the local statutes applicable in the instant case. The fact that we are still relying on a 163 year old archaic colonial statute, stresses the need for codifying and reforming maritime laws in India. Some other outdated admiralty laws, still existent in India are Admiralty Jurisdiction (India) Act, 1860, The Admiralty Court Act, 1861, Colonial Courts of Admiralty Act, 1890, Colonial Courts of Admiralty (India) Act, 1891. These laws derive their legitimacy from Art.372, Constitution of India, which states ….. all the laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.

First Law Commission of India in 1957 had recommended that British Laws applicable in the sphere of maritime laws should be replaced by relevant Indian statutes. Much later, the Supreme Court of India in 1992 while deciding the case of M V Elisabeth v. Harwan Investment and Trading Ltd. had expressed shock and surprise that legislative exercise in the field of maritime law is minimal. Later, Law Commission of India again in its 151st report on Admiralty Jurisdiction in 1994 strongly pressed for enacting a new admiralty law in India. Unfortunately, nothing substantial has been done so far, except for few amendments in existing laws. An Admiralty Bill was introduced in 2005, but failed to be enacted and has lapsed, ending hopes for a new law in the near future.

Maritime law considering its special nature is a sphere wherein domestic laws regularly come in conflict with International legal principles and needs regular updation. For example, in the instant case, Italian diplomats were keen on citing provisions of United Nations Convention on Law of the Sea, 1982 to counter Indian laws and our demand for a trial in India. It is also unfortunate, that India has also not adopted some significant International Conventions like the Geneva Convention on the Arrest of Ships, 1999, thereby leaving our courts with no option but to rely on the colonial statutes of previous centuries. If legal reforms in tune with International standards are an indicator of a nation’s commitment to progress, it is a lesson we are yet to learn.