This case arose from an incident that occurred about 20.5 nautical miles from the Indian sea coast off the State of Kerala, where two Italian marines, stationed on board an Italian-flagged commercial vessel, the MV Enrica Lexie, as a piracy protection measure, opened fire on and killed two fishers on board an Indian fishing boat, the St Antony. The marines were subsequently arrested and put on trial in Kerala. The Republic of Italy and the marines petitioned the Supreme Court under the Constitution for a ruling that the criminal proceedings in Kerala were illegal and ultra vires.

The petitioners argued that as the incident occurred 20.5 nautical miles from the coast of India, it was outside the territorial waters, though within the contiguous zone and the Exclusive Economic Zone (EEZ) of India. Accordingly, it could not be said that the incident occurred within the jurisdiction of one of the federal units of the Union of India. Rather, it occurred in a zone in which the Central Government is entitled under the Maritime Zones Act 1976 (the Act), as well as UNCLOS, to exercise sovereign rights not amounting to sovereignty. Notwithstanding the provisions of the Act, India, as a signatory of the UNCLOS, is also bound by the provisions thereof. The provisions of the Act and UNCLOS recognise the primacy of flag State jurisdiction. The Republic of Italy thus has the pre-emptive right to try the marines under its local laws.

The petitioners submitted that UNCLOS provides for the extent of territorial waters and internal waters and the right of 'innocent passage' in arts 8, 17 and 18 of the Convention. Article 17 sets out in clear terms that subject to the Convention, ships of all States enjoy the right of innocent passage through the territorial sea. 'Innocent passage' is defined in art 18 to mean navigation through the territorial sea for the purpose of:

(a) traversing that sea without entering internal waters or calling at a roadstead or part facility outside internal waters; or

(b) proceeding to or from internal waters or a call at such roadstead or part facility.

Such passage should be continuous and expeditious, but would include stopping and anchoring, only in so far as the same are incidental to ordinary navigation or are rendered necessary for force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress. Article 19 describes innocent passage to be such so long as it is not prejudicial to the peace, good order, or security of the coastal State, and takes place in conformity with the Convention and other rules of international law. Article 24 of the Convention contains an assurance that coastal States will not hamper the innocent passage of foreign ships through the territorial sea, except in accordance with the Convention.

As to criminal jurisdiction over a foreign ship, the petitioners referred to art 27 of UNCLOS, which provides that the criminal jurisdiction of the coastal State shall not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in cases where the consequences of the crime extend to the coastal State; if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. The petitioners submitted that none of these conditions were relevant so as to attract the criminal jurisdiction of a State within the federal structure of the Union of India.

Article 33 of UNCLOS deals with contiguous zones, providing that in a zone contiguous to its territorial sea, a coastal State may exercise the control necessary to:

(i) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;

(ii) punish infringement of the above laws and regulations committed within its territory or territorial sea.

However, the contiguous zone may not extend beyond 24 nautical miles from the baseline from which the breadth of the territorial sea is measured. Accordingly, since the incident occurred outside its territorial waters, the State of Kerala exceeded its jurisdiction and authority.

Article 56 of UNCLOS indicates the rights, jurisdiction, and duties of the coastal State in its EEZ so as to include the State's sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents, and winds. Articles 88 and 89 of UNCLOS provide that the high seas have to be reserved for peaceful purposes, and that no State may validly purport to subject any part of the high seas to its sovereignty. Articles 91, 92 and 94 of the Convention provide that every State is entitled to fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Article 91 provides that ships have the nationality of the State whose flag they are entitled to fly, and that there must exist a genuine link between the State and the ship. The petitioners pointed out that art 94 casts several duties on the flag State, one of the most significant of which is that each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall co-operate in the conduct of any inquiry held by the concerned State into any such marine casualty or incident of navigation. The same provisions are also reflected in art 97 of the Convention, which provides that in the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. Finally, art 100 of UNCLOS requires all States to co-operate to the fullest extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.

The petitioners submitted that the provisions of the Act had to be read in harmony with the provisions of UNCLOS. It was not contemplated under the Act that the policing powers of a coastal State would proceed beyond the contiguous zone and into the EEZ or high seas.

The respondents argued that, as far as the Union of India was concerned, an attempt must necessarily be made in the first instance to harmonise the Act with UNCLOS. If this was not possible, and there was no alternative but a conflict between municipal law and the international Convention, the provisions of the Act would prevail. Primacy in interpretation by a domestic court must, in the first instance, be given to the Act rather than to UNCLOS. The right of passage through territorial waters is not the subject matter of the dispute in this case. Article 56 of UNCLOS does indicate that the rights given to the coastal States are exhaustive. While the petitioners have laid emphasis on art 56.1.b, the Union of India has laid emphasis on art 56.1.a read with art 73 of UNCLOS to justify the action taken against the accused. Even if art 16 of UNCLOS is given a restrictive meaning, the action of the Indian courts would be justified, in as much as the action seeks to protect the country's fishers. Article 59 of UNCLOS, which deals with the basis for the resolution of conflicts regarding the attribution of rights and jurisdiction in the EEZ, contemplates rights beyond those which are attributable under the Convention. However, even if it could be assumed that the rights asserted by India are beyond those indicated in art 56 of UNCLOS, such conflict would have to be resolved on the basis of equity and in the light of all circumstances. Accordingly, even if both the Republic of Italy and India had the power to prosecute the accused, it would be much more convenient and appropriate for the trial to be conducted in India, having regard to the location of the incident and the nature of the evidence and witnesses.

In order to claim exclusive jurisdiction, the Republic of Italy relied upon art 97 of UNCLOS. However, this provision deals with the collision of shipping vessels and is unconnected with any crime involving homicide. The respondents urged that the expression 'incident of navigation', used in art 97, does not contemplate a situation where a homicide takes place. If art 97 of UNCLOS were to include a homicide incident, art 92 of the Convention would be rendered otiose.

Held: India is entitled both under domestic law and public international law to exercise rights of sovereignty up to 24 nautical miles from the baseline on the basis of which the width of territorial waters is measured, but can exercise sovereign rights within the EEZ only for certain purposes. Because the incident occurred within the contiguous zone, the Union of India is entitled to prosecute the two Italian marines under its local criminal justice system. However, this is subject to the provisions of art 100 of UNCLOS 1982. The determination of the dispute has to be conducted only at the level of the Federal or Central Government, and cannot be the subject matter of a proceeding initiated by a Provincial/State Government.

Therefore, the State of Kerala has no jurisdiction to investigate the incident. However, until such time as it is proved that the provisions of art 100 of UNCLOS apply to the facts of this case, it is the Union of India which has jurisdiction to proceed with the investigation and trial of the marines. The Union of India is directed, in consultation with the Chief Justice of India, to set up a Special Court to determine this case in accordance with the provisions of the Act, the Indian Penal Code, the Code of Criminal Procedure, and most importantly the provisions of UNCLOS, where there is no conflict between domestic law and UNCLOS. The pending proceedings in Kerala shall be transferred to the Special Court. This will not prevent the petitioners from invoking the provisions of art 100 of UNCLOS, upon adducing evidence in support thereof, whereupon the question of jurisdiction of the Union of India to investigate the incident and for the Courts in India to try the accused may be reconsidered. If it is found that both the Republic of Italy and the Republic of India have concurrent jurisdiction over the matter, these directions will continue to hold good.

This judgment relates only to the question of jurisdiction prior to the adducing of evidence. Once the evidence has been recorded, it will be open to the petitioners to re-agitate the question of jurisdiction before the trial Court, which will be at liberty to reconsider the matter in the light of the evidence which may be adduced by the parties and in accordance with law. Nothing in this judgment should come in the way of such reconsideration, if such an application is made.

The provisions of the Act take note of the territorial waters, the contiguous zone, the continental shelf and the EEZ. Section 7 of the Act deals with the EEZ of India and stipulates it to be an area beyond and adjacent to the territorial waters extending up to 200 nautical miles from the nearest point of the baseline of the Kerala coast. It is quite clear that the contiguous zone is, therefore, within the EEZ of India and the laws governing the EEZ would also govern the incident which occurred within the contiguous zone, as defined in s 5 of the Act. The provisions of UNCLOS are in harmony with the provisions of the Act in this regard. Article 33 of the Convention recognises and describes the contiguous zone of a nation to extend to 24 nautical miles from the baseline from which the breadth of the territorial sea is measured. This is in complete harmony with the provisions of the 1976 Act. Similarly, arts 56 and 57 describe the rights, jurisdiction and duties of the coastal State in the EEZ and the breadth thereof extending to 200 nautical miles from the baseline from which the breadth of the territorial sea is measured. This provision is also in consonance with the provisions of the Act. The area of difference between the provisions of the Act and the Convention occurs in art 97 of the Convention which relates to penal jurisdiction in matters of collision or any other incident of navigation.

The present case does not involve a collision. However, it has to be seen whether the firing incident could be said to be covered by the expression 'incident of navigation'. Furthermore, the petitioners assert that the incident also comes within art 100 of the Convention which provides that all States shall co-operate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State. If art 97 of the Convention applies to the facts of this case, no penal or disciplinary proceeding can be instituted against the master or any other person in service of the ship, except before the judicial or administrative authorities either of the Flag State or of the State of which such person is a national. Article 97.3 stipulates in clear terms that no arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the Flag State. In this case, the MV Enrica Lexie was flying the Italian flag.

The context in which the expression 'incident of navigation' has been used in art 97 of the Convention seems to indicate that it refers to an accident occurring in the course of navigation, of which collision between two vessels is the principal incident. An incident of navigation as intended in this article cannot involve a criminal act in whatever circumstances. Whether the accused acted on the misunderstanding that the Indian fishing vessel was a pirate vessel which caused the accused to fire, is a matter of evidence which can only be established during a trial. If the defence advanced on behalf of the marines is accepted, then only will the provisions of art 100 of the Convention become applicable to the facts of the case.

Since India is a signatory, it is obligated to respect the provisions of UNCLOS, and to apply them if there is no conflict with the domestic law. In this context, both countries may have to subject themselves to the provisions of art 94 of the Convention which deals with the duties of the Flag State and, in particular, art 94.7, which provides that each State shall cause an inquiry to be held into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State. It is also stipulated that the Flag State and the other State shall co-operate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.