Rajya Sabha on March 13 debated Ital's refusal to send back the two marines who killed Indian Fishermen

EXCERPTS FROM THE DEBATE ON MARCH 13, 2013 IN RAJYA SABHA ON ITALY’S REFUSAL TO SEND BACK TWO MARINES ACCUSED OF KILLING INDIAN FISHERMEN 

THE LEADER OF THE OPPOSTION (SHRI ARUN JAITLEY): Mr.Deputy Chairman, Sir, it is with a deep sense of anguish and pain that as a nation, which has been deceived, I raise this issue of public importance. Two Italian marines, who were being prosecuted in Kerala for ostensibly killing Indian fishermen, have now absconded. 

And, they have absconded as a result of a deception, an outright fraud which has been practised on the Government of India and on the Indian Supreme Court by a sovereign nation. 

We have heard of State-sponsored terrorisms, but this actby a democratic country, which ostensibly claims to be committed to the rule of law, seems to be the first such case of a State-sponsored deception and a State-sponsored abduction. It is a State-sponsored abduction because they approached the Supreme Court of India ostensibly on the pretext first that the two persons being prosecuted had to go their homes to celebrate Christmas. Since we have a civilised jurisprudence in India, court yielded to the request. 

The second one was a little curious that they wanted to go home in order to cast their votes. As per the little law that I understand, when you are in prison, you don’t have a right to cast a vote. So, if an Indian prisoner had approached an Indian court saying that just release me because I want to go and cast my vote, this request would never have been entertained. 

SHRI ARUN JAITLEY (CONTD.): Even for Italian citizens living elsewhere in the world, there is a facility available -- assuming that they were not in prison and they were outside --and, I read from the Italian Interior Ministry’s notification,“The Italian citizens residing abroad are entitled to vote by mail for candidates.”

So, they could have easily voted by mail. This appears to be a little pre-scripted. Itis pre-scripted because even when your law provides a facility of voting by mail, you submit to the jurisdiction of the Indian Supreme Court, you want a facility to go abroad, and, an Order, which should never have been passed, gets passed, and, you are entitled to go abroad, subject to a sovereign undertaking. I say this with a sense of responsibility and I have reason to believe that this sovereign undertaking, though given by the Ambassador of Italy, is approved by the Prime Minister of Italy, and, this sovereign undertaking is given to the Indian Supreme Court. And, after the sovereign undertaking is given to the Indian Supreme Court, they go abroad, and, then, the Government of Italy turns around and says, ‘because we have disputes with regard to jurisdiction, we are not going to ask them to come back’, and, now they stand absconding from Indian law. 

Well, disputes of jurisdiction can also be raised in Indian law, when our citizens are prosecuted. For 1984 incidents, which took place in India, people have filed prosecutions in the United States. We go and object that they have no jurisdiction. And, here is a country which has done this for the third time. In the 1980s, you had a Defence transaction, somebody absconds from India through Malaysia, Argentina, gets a refuge there, and, we are rendered helpless. In the VVIP helicopter deal, our officials go there and come back empty handed because we are now told that there will be evidence available against some of the Italian citizens plus others in India, who may be guilty of bribery, and, our investigation finds it difficult to proceed further. his is an extreme case where there is a case of a State-sponsored deception, where, literally, you abscond from the jurisdiction of the Indian courts. What do we do under these circumstances, Sir? Are we a helpless State that India will do nothing in this matter?

Sir, my submission is that after these three experiences, now time has come that when you deal with the Romans, deal as the Romans would deal, and, therefore, when they have broken every rule of diplomacy, it is the time for the Government of India to act and not to say that we are now bound by conventions of diplomacy. 

Sir, I doubt seriously -- and, since the Law Minister is here, I would urge him to consider this-- whether the Ambassador, who has given a sovereign undertaking on behalf of the Government of Italy is entitled, in this case, to the benefit of what is, otherwise, referred to as diplomatic privilege. He submitted to the jurisdiction of the Indian Supreme Court. Once you submit to the jurisdiction, you can’t claim diplomatic privileges. Secondly, Sir, the Vienna Convention is a 1961, post-Constitutional Convention. We have legislated to give it a shape of a domestic law. A normal domestic legislation does not override the Constitution of India and the Supreme Court of India has power to punish for its own contempt, which is there under Article 129. 

The Vienna Convention will not override Article 129 of the Indian Constitution, and, in any case, the Law Minister may examine, can the post-Constitutional treaties, and the Vienna Convention being one, override the Constitution of India. I seriously doubt it, particularly, when the Government of Italy and their Ambassador have submitted to the jurisdiction of the Indian Supreme Court. 

SHRI ARUN JAITLEY (CONTD.): Therefore, Sir, a time has come, since we have been treated in this manner for the third time, I think, when we should forget diplomatic niceties. Sir, there is a very interesting quotation from something which is never so serious. It was one of the legendary characters created, and some of us may remember. He said, “Once is happenstance. Twice is coincidence. Three times, it’s enemy action”. This is James Bond, Ian Fleming’s famous quote. And this now must be treated in the category of an enemy action that you abduct a person, take him outside the jurisdiction of India and then say India can go to hell, we are not concerned. Therefore, this matter, the Government of India must respond to and must be taken upin all its seriousness. 

SHRI SITARAM YECHURY (WEST BENGAL) : Sir, the situation is a very serious one. I don’t think this can be treated very casually or even in a diplomatic route. The point is that these marines were arrested and are being tried under Indian law. Indian law does not permit under-trials to vote, does not permit the under-trials to leave the jail to go and vote. So, how were they permitted? They were permitted earlier to celebrate Christmas. If all the Tihar inmates today appeal saying that please let us go and celebrate Holi, will that be allowed? I don’t know how and what is happening in our country, and I don’t think the Government has been taking this seriously.

Therefore, we want the Government to answer. The Solicitor-General, in April last year, has actually gone on record in the court and said that the Kerala Government was wrong in filing an FIR and arresting these people. He was removed from the case. But he continues on the same post.

SHRI SITARAM YECHURY: I am not making any adverse comments. I am saying a fact, Sir. ..(Interruptions).. I am saying a fact, Sir. I am not making any adverse comment. I hold all Constitutional authorities in respect and there is no adverse comment on them. It is a statement of fact. 

Secondly, Sir, the Supreme Court had asked the Government to set up a tribunal to try this. The Government did not set up a tribunal. They will have to answer why. Thirdly, Sir, the Government never expressed the apprehension in the Supreme Court that once these people are allowed to go to vote, they may not return. The Government was confident that they would return, and I would only add to what the hon. LoP has said that there has been a case of a state-sponsored violation of the Indian law.

SHRI SITARAM YECHURY: How can you give four week's time to cast a vote? Now, when they are not returning and it is being viewed seriously, I think, there is no diplomacy involved in this. It is a straightforward question of upholding the Indian law. 

Finally, the last point that I want to make is that many such things have happened in the past, it is

not only three incidents which the Leader of the Opposition has quoted with Italy, but you had the Purulia Arms dropped person, Kim Davy, leaving the country. You had Anderson of the Bhopal gas tragedy leaving the country.

SHRI SITARAM YECHURY: We, Members of Parliament, have a right to make the Executive accountable. How is that Kim Davy left? How is that Anderson left after the Bhopal gas tragedy? How is that David Kelly left? 

SHRI SITARAM YECHURY: How is that Quattrocchi left?

SHRI SITARAM YECHURY: I am not taking any other point. ..(Interruptions)... This has happened as a spring of things where the law of the land is being subsumed. Whatever other considerations are there, you are actually allowing a State to violate the Indian law. 

SHRI SITARAM YECHURY: This is something that is completely unacceptable that the Government will have
to answer. 

SHRI N. K. SINGH (BIHAR): Sir, I just want to make three very quick points. There was a fraudulent affidavit in which it was fraudulently mentioned that they have to be physically present to cast the vote.  This point has been brought out by the hon. Leader of the Opposition.

Secondly, all diplomatic immunity is based on the broad principle of reciprocity. That reciprocity or diplomatic principle has been violently contravened in this particular case. 

Thirdly, I think we need to examine the over-arching point, which the Leader of the Opposition made, namely, the compatibility of the privileges under the Vienna Convention, which preceded the Constitutional provision. Surely, the Constitutional provision of the basic law will really take an over-arching place over the accepted principles of Vienna Convention. 

SHRI RAVI SHANKAR PRASAD (BIHAR): Sir, I am very grateful. Sir, you very rightly said, it is a crime against the nation. I have to ask the hon. Law Minister what was the instruction given to the Government of India Council in this case. It was not a law point. A plea was raised. Therefore, what was the instruction of Government of India and what did the Government of India lawyer argue before the Supreme Court before the order was passed. 

My second query is this. Hon. Defence Minister is present here, while replying on AgustaWestland scam, he said, ‘we are approaching the Government of Italy for information.’ Should we presume, in view of the suspicious circumstances, the tension will be used as a ploy not to give information to India as far as the AgustaWestland Helicopter scam is concerned? That is a very serious apprehension because there appears to be, as hon. Leader of the Opposition said, a pre-script. Therefore, we are deeply worried.

We would like the Government of India to instruct the Attorney-General before the Supreme Court. Did they object? Did they support? I want the information. I would be extremely  grateful. 

SHRI K.N. BALAGOPAL (KERALA) : Mr. Deputy Chairman, Sir, I want a discussion on this issue because this is not a question of association with Italy. People have association with Italy. I come from the district where these two poor fishermen were murdered by the marines of Italy. Those marines served as commercial ship guards. We are happy that the entire country is supporting us. This is not a question of two people. When Nirbhaya was raped and killed in Delhi,

the entire country stood behind her family. We discussed about the protection of the women here. A Bill is going to be introduced. Here two fishermen who went to the sea for eking out their livelihood weremurdered. It can happen in Gujarat. It can happen in Chennai. It can happen in any part of India. Somebody can come to India, kill them and then go back. It is not Queen Elizabeth's India. The Great Britain and India have separate identities. Italy has a separate identity...(Interruptions).. We need a separate discussion on this issue. We need a separate discussion on this, not a reply. Sir, academic discussion is not enough. We need something positive to be delivered here. We expected the Minister of Foreign Affairs or the hon. Prime Minister to be here. It is a very serious issue. he Chief Minister of Kerala cannot stay inKerala. He has come to Delhi. He is here. He cannot go back to Kerala.

THE PRIME MINISTER (DR. MANMOHAN SINGH): Mr. Chairman, Sir, there can be no two opinions about the actions that have been taken by the Italian Government on the matter raised by the hon. Members. Our Government has already made it clear that these actions of the Government of Italy are not acceptable. They violate every rule of diplomatic discourse and call into question solemn commitment given by accredited representatives of a sovereign Government to our Supreme Court. This cannot, by any standards, be in the interest of any bilateral relationship that has to function on the basis of trust. 

Our Government has, therefore, insisted that the Italian authorities respect the undertaking they have given to the hon. Supreme Court of India and return the two accused persons to stand trial in India. If they do not keep their word,

there will be consequences on our relations with Italy. 

I would also urge all Members of the House to treat this matter with the seriousness that it deserves, acting and speaking together as the Government moves forward on this issue. Thank you.