By Akshay Ashok and Samavi Srivastava
Introduction
In December 2019, eighteen Indian sailors were abducted off the coast of Nigeria, marking another act of piracy in recent years.[1] Piracy is an ancient problem that has plagued the world for many centuries. It is a universal problem that the international community has been trying to address. To tackle this ever-growing problem in the high seas, and particularly the Indian ocean, the Anti-Maritime Piracy Bill, 2019 (hereinafter “the Bill”) was introduced by India to create a framework of legislation to address the increasing acts of piracy.[2] The Bill was approved by the Standing Committee on External Affairs on 11th February, 2021.[3] It pays homage to the United Nations Convention on the Law of the Sea, 1982 (hereinafter “UNCLOS”) in its preambulatory sentences.
The UNCLOS is an international treaty that addresses the problem of piracy in the world and places a duty upon all member States to cooperate in the repression of piracy.[4] As per international law, piracy is considered as an act against the international community at large,[5] thereby giving States the authority to try acts of piracy committed in the high seas.[6] The Bill is a way of facilitating this provision of the UNCLOS. India is a signatory to the UNCLOS and has drafted the Bill in consonance with the provisions of the treaty.[7] However, the Bill is manifested with certain inadequacies.
This article aims to highlight these limitations with a broader reference to international piracy law. Therefore, it is an attempt to bring forth the fundamental interplay of international law and domestic law. In this article, the authors have addressed the problem of the limiting definition of ‘piracy’ in the Bill, and further, the imposition of the mandatory death penalty has been critically analysed.
Defining Piracy: a Problem
Piracy is defined in the Bill as any illegal act of violence, detention, or depredation committed for private ends, against another ship or aircraft, on the high seas or in a place outside the jurisdiction of India.[8] This is in keeping with the definition provided under Article 101 of the UNCLOS.[9] Initially, piracy was limited to acts occurring on the high seas, i.e., an open area which does not belong to the territory of any State. Subsequently, areas outside the territorial jurisdiction of a State were also included into the ambit of the definition under the UNCLOS, and resultantly, the Bill.[10] This includes the Exclusive Economic Zone, which is the transitional area between the territorial waters and the high seas, covering 200 nautical miles from the coast of the State.[11]
The aforementioned definition of piracy leaves out the question of acts of piracy occurring in areas within the territorial and internal waters of India. It can be argued that acts within such areas are covered under ‘Armed Robbery against Ships’ as per the International Maritime Organisation, i.e., an act of violence, detention or depredation committed for private ends within a State’s internal waters, archipelagic waters and territorial sea.[12] There has been a consistent trend of such acts in India with an annual average of six cases.[13] However, India does not have any domestic legal framework pursuant to this that punishes such an act of ‘Armed Robbery against Ships’.
Previously, the provisions for armed robbery as per the Indian Penal Code (hereinafter “the IPC”) were invoked to tackle the prosecution of pirates.[14] However, ‘robbery’ is inherently different from ‘piracy’. As per Section 390 of the IPC,[15] there cannot be robbery without theft or extortion, which means that unless an act fulfils the threshold of either of these two crimes, it cannot be prosecuted under ‘armed robbery’. The thresholds require some property of the victim to be dishonestly taken from them.[16] However, piracy does not demand this criterion. Further, as evidenced by the MV Alondra Rainbow hijacking in 1999, other sections of the IPC such as attempt to murder, forgery, criminal conspiracy, trespassing, assault, etc. may also be deployed in tackling acts of piracy.[17] However, as it happened in this very case, this may allow the pirates in question to get off scot-free due to differing requisites or other ‘systemic failures.’ Therefore, these sections of the IPC cannot sustainably and accurately be used for the prosecution of acts of piracy committed within the territorial waters of India.
There is another way in which this problem may manifest, which concerns not just India, but the issue of piracy across the world at large. Any State can pursue a ship within the high seas as they are open to all States and belong to no State,[18] but this right to pursue ends when the ship enters the territorial waters of a third state.[19] This emanates from the principle of sovereignty which is enshrined under customary international law as the sovereign right of a State to exercise effective control over its territory to the exclusion of other States.[20]
Many countries around the world do not have established laws that can address piracy within their territorial waters.[21] Therefore, it is inevitable that these waters may be used as a safety net, or a loophole, for pirates who are escaping from other States pursuing them in the high seas.[22] Countries such as India may face a Gordian knot if pirates start using their territorial waters to escape from pursuing nations and take advantage of the legal lacunae in their legislation regarding piracy.
Some might argue that this potential problem might have been solved if the pursuing State were allowed to enter the waters of the third State in what is known as ‘reverse hot pursuit’.[23] Arguably, sovereignty is not an absolute right; it can bend before international obligations. For example, it was well established in the Trail Smelter arbitration, a trans-boundary pollution dispute, that every State is under an obligation to not use its territory in such a manner so as to cause injury to the territory of another State, thereby constituting a limitation on the exercise of sovereignty.[24] However, in the absence of such obligations, the sovereign rights of a State are to be respected.[25] Although this solution is not unprecedented; the UNSC had allowed nations to enter the territorial waters of Somalia in order to address piracy in 2008.[26] However, the resolution categorically mentioned that this cannot be construed as an obligation under international law. As of now, no international obligation exists for any State to curtail its sovereignty and allow other nations the right of reverse hot pursuit.
In this scenario, the narrow definition of piracy hangs as a sword of Damocles over India and its resolution of tackling the problem of piracy.
Mandatory Death Sentence Provisions
The biggest critique that the authors levy against the Bill is the imposition of a mandatory death penalty against pirates that cause death or an attempt to cause death. In the present bill, Section 3(i) provides that any act of piracy shall be punished with imprisonment for life and Section 3(ii) states that any act of piracy resulting in the death or an attempt of death shall be punished with a death sentence.
Mandatory death penalty has been held unconstitutional by the Supreme Court in the case of Mithu v. State of Punjab decided in 1983 in the context of Section 303 of the IPC.[27] Section 303 of the IPC[28] provides that an individual who commits murder while under a sentence of life imprisonment will be awarded the death penalty. The court remarked that a standardized mandatory death sentence does not consider the facts or circumstances of the particular case, and facts are central to the determination of sentencing in individual cases.[29] This view is the only compatible opinion with the ‘rarest of rare’ doctrine decided by the Bachan Singh v. State of Punjab case.[30]
The court further upheld the same decision in the case of State of Punjab v. Dalbir Singh[31] in 2012. It stated that mandatory death penalty is unconstitutional since it violates Articles 14 and 21 of the Constitution.[32] The facts of this particular case could shed some light on the problem inherent in the current bill. Section 27 of the Arms Act, 1959[33] was to be considered by the Court in the particular case.[34] Section 27(a) and (b) provide for imprisonment terms or fines when an individual is in contravention of Section 5 and 7 respectively. However, according to Section 27(c), if any individual acts in contravention of Section 7 resulting in the death of a person, such person would have been awarded the death penalty. This was according to the court an extremely wide provision and is a form of mandatory death penalty.[35] Moreover, any accidental or unintentional use of prohibited arms in contravention of Section 7 resulting in death would be given the death sentence and is therefore a drastic provision. [36]
In the instant case, Section 3 punishes anyone who commits any act of piracy with imprisonment for life except when that act of piracy constitutes death, in such cases the bill punishes them with death. This issue came up in the Lok Sabha as well, where Mr. S. Jaishankar, while responding to Mr. Shashi Tharoor, stated that the Bill does not seek to impose the death penalty in the first place, but aims to impose life imprisonment before the death penalty.[37] However, this is an incorrect reading of Section 3 as evidenced in the case of State of Punjab v. Dalbir Singh. Section 3(ii) will be read separately from Section 3(i) of the Bill, as there is no contrary indication present in the Bill itself. Moreover, Section 3(i) corresponds to acts of piracy not amounting to death while Section 3(ii) corresponds to a different offence, i.e., acts of piracy that caused death.
While the representative of Ministry of External Affairs before the Parliamentary Standing Committee on External Affairs also opined that the State does not seek to impose mandatory death penalty,[38] the wording of the Bill in question is eerily similar to Section 27 of the Arms Act. Therefore, this provision of the bill is an affront to the constitutional principles that the Supreme Court has enshrined through a multitude of cases.
Previous acts, most notably the Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 in Section 3(g)[39] and the Anti-Hijacking Act, 2016 in Section 4(a)[40] also impose a mandatory death sentence. It is pertinent to note that a challenge on the mandatory death penalty provision in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“SC/ST Act”)[41] is pending before the Supreme Court.[42]
It is noteworthy to look at similar legislative steps to ratify the UNCLOS taken by other countries, i.e., United States of America,[43] Kenya,[44] Australia,[45] Italy,[46] and Sri Lanka,[47] all of which do not include any provisions for death penalty.
The UN Special Rapporteur on extrajudicial, summary or arbitrary executions pointed out in 1995 that under no circumstances must the death sentence be mandatory by law,[48] since the imposition of a mandatory death penalty discounts the event that a judge may impose a lesser sentence depending on the circumstances. Such happenings would be “inconsistent with the prohibition of cruel, inhuman or degrading treatment or punishment”.[49] Mandatory death penalty violates International Law, most notably Article 6 of the ICCPR. Article 6 of the ICCPR imposes that the death penalty must be reserved only for the “most serious crimes”.
The mandatory imposition of death penalty has been decided to be violative of Article 6 in a host of communications by the Human Rights Committee.[50] The issue was first considered by the Committee extensively in Lubuto v Zambia[51] decided in 1995. The Zambian penal law imposed a mandatory death penalty for armed aggravated robbery. The Committee found that the State party violated Article 6 of the ICCPR since the court was barred from taking into account the circumstances surrounding the case.[52] The Inter American Court of Human Rights also decided that mandatory death penalty is against the Right to Life in the case of Hilaire, Constantine et al v. Trinidad & Tobago since the punishment does not take into account the mitigating circumstances of the individual.[53]
Conclusion
While the Bill is a welcome move to bring the UNCLOS provisions regarding piracy into the fold of Indian legislation, it does so by leaving a series of legal lacunae in its wake. Primarily, it does not extend the jurisdiction of piracy to the territorial waters of India, thereby leaving the question of addressing acts of piracy within these areas nebulous. Even though international jurisprudence may cover such acts under different legal obligations, India does not have the domestic framework pursuant to the same. Therefore, presently, India might find itself in the middle of a strange situation of undeterred piracy. Secondly, the mandatory death penalty is unconscionable as per the existing constitutional principles laid down by the Indian courts. The Bill must be critically analysed by law makers with regard to the international discourse on piracy. As it stands, while the Bill is a positive step in the direction of militating against the crime of piracy, it fails to counter the inherent flaws present in the international arena set forth by the UNCLOS. If the Bill is passed without addressing these inescapable flaws, an otherwise buoyant attempt towards establishing piracy legislation in India will be capsized by these adverse shortcomings.
The authors, Akshay Ashok and Samavi Srivastava are undergraduate law students at the National Law Institute University (NLIU), Bhopal.
[1] Nitasha Natu, Mumbai sailor among 18 Indians released by pirates in Nigeria after 18 days, The Times of India (Dec. 23, 2019), https://timesofindia.indiatimes.com/city/mumbai/mumbai-sailor-among-18-indians-released-by-pirates-in-nigeria-after-18-days/articleshow/72930899.cms, accessed 24th May 2021.
[2] Anti-Maritime Piracy Bill, 2019, Bill No. 369 of 2019.
[3] Standing Committee on External Affairs (2020-2021), Seventeenth Lok Sabha, Sixth Report (Issued on February 2021).
[4] Convention on the Law of the Sea art. 100, Dec. 10, 1982, 1833 U.N.T.S. 397.
[5]Malcolm N. Shaw, INTERNATIONAL LAW 397 (7 ed., Cambridge University Press, 2008).
[6] Convention on the Law of the Sea art. 105, Dec. 10, 1982, 1833 U.N.T.S. 397.
[7] Anti-Maritime Piracy Bill, 2019, Bill No. 369 of 2019.
[8] Anti-maritime Piracy Bill, 2019, Bill No. 369 of 2019, §2(f).
[9] Convention on the Law of the Sea art. 101, Dec. 10, 1982, 1833 U.N.T.S. 397.
[10] UNCTAD, Part II: An Overview Of the International Legal Framework and of Multilateral Cooperation to combat piracy, Studies in Transport Law and Policy (2014), p. 6.
[11] Convention on the Law of the Sea art. 58(2), Dec. 10, 1982, 1833 U.N.T.S. 397.
[12] Piracy and armed robbery against ships, International Maritime Organisation, https://www.imo.org/en/OurWork/Security/Pages/PiracyArmedRobberydefault.aspx, accessed 19th May 2021.
[13] Himadri Das, Armed Robbery at Sea in India, National Maritime Foundation (Feb. 26, 2021), https://maritimeindia.org/armed-robbery-at-sea-in-india-trends-and-imperatives/#_ftn1, accessed 22nd May 2021.
[14]Anti-maritime Piracy Bill, 2019, Bill No. 369 of 2019, Statement of Object and Reasons.
[15] Indian Penal Code, 1860, § 390.
[16] Indian Penal Code, 1860, § 378, 383.
[17] Vijay Sakhuja, Maritime Legal Conundrum, Institute of Peace and Studies, http://www.ipcs.org/comm_select.php?articleNo=1778, accessed 28th May 2021.
[18] Convention on the Law of the Sea art. 87, Dec. 10, 1982, 1833 U.N.T.S. 397.
[19] Convention on the Law of the Sea art. 87, Dec. 10, 1982, 1833 U.N.T.S. 397.
[20] Island of Palmas (U.S. v. Neth.), Perm. Ct. of Arbitration, 2 R.I.A A 838, p. 838 (1928), Armed Activities on the Territory of the Congo (D.R.C. v. Uganda), Judgment, 2005 I. C. J. Rep.168, ¶244 (Dec. 19).
[21] United Nations Division For Ocean Affairs and The Law of the Sea, National Legislation on Piracy, Oct. 26th 2011, available at https://www.un.org/depts/los/piracy/piracy.htm.
[22] Lucas Bento, Toward an International Law of Piracy Sui Generis: How the Dual Nature of Maritime Piracy Law Enables Piracy to Flourish, 29 Berkeley J. Int’l L. 399 (2011).
[23] UNCTAD, Part II: An Overview Of the International Legal Framework and of Multilateral Cooperation to combat piracy, Studies in Transport Law and Policy (2014), p. 12.
[24] TRAIL SMELTER (U.S. v. CAN.), 3 R.I.A.A. (1941), p. 1965.
[25] LAKE LANOUX ARBITRATION (FRANCE v. SPAIN), (1957) 12 R.I.A.A. 281; 24 I.L.R. 101, p. 16.
[26] Resolution 1816 (2008), Adopted by the Security Council at its 5902nd meeting, S/RES/1816 (June 2008).
[27] Mithu v. State of Punjab, (1983) 2 SCC 277.
[28] Indian Penal Code, 1860, §303.
[29] Mithu v. State of Punjab, (1983) 2 SCC 277, at p. 16.
[30] Bachan Singh v. State of Punjab, AIR 1980 SC 898.
[31] State of Punjab v. Dalbir Singh, AIR 2012 SC 1040.
[32] Ibid, §94.
[33] Arms Act, 1959, §27.
[34] Supra note 31, at §11.
[35] Ibid, §21, 22, 89.
[36] Ibid, §21.
[37] Anti-Maritime Piracy Bill introduced in Lok Sabha, THE ECONOMIC TIMES, December 09, 2019.
[38] Supra note 2 at p. 2.15.
[39] Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002, No. 69, Acts of Parliament, § 3(g).
[40] Anti-Hijacking Act, 2016, § 4(a).
[41] Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, § 3(2).
[42] SC seeks Centre’s reply on plea challenging mandatory death penalty under SC/ST Act, The Economic Times, May 10, 2019.
[43] Privacy and Privateering, Crimes and Criminal Procedure Code, 1970 (United States of America).
[44] Merchant Shipping Act, 2009 (Kenya).
[45] Part IV – Piracy, Crimes Act, 1914 (Australia).
[46] Maritime Code, 1942 (Italy).
[47] Piracy Act, 2002 (Sri Lanka).
[48] UN document E/CN.4/1999/39, 6 January 1999, p. 63.
[49] UN document E/CN.4/2005/7, 22 December 2004, p. 80.
[50] Thompson v. St. Vincent and the Grenadines, CCPR/C/70/D/806/1998, 18 October 2000 [8.2]; Kennedy v. Trinidad and Tobago, CCPR/C/74/D/845/1998, 26 March 2002 [7.3]; Carpo et al. v. Philippines, CCPR/C/77/D/1077/2002, 28 March 2003 [8.3] Rayos v. Philippines, CCPR/C/81/D/1167/2003, 27 July 2004 [7.2]; Hussain et al. v. Guyana, CCPR/C/85/D/862/1999, 25 October 2005 [6.2]; Chan v. Guyana, CCPR/C/85/D/913/2000, 31 October 2005 [6.5]; Persaud v. Guyana, CCPR/C/ 86/D/812/1998, 21 March 2006 [7.2]; Mwamba v. Zambia, CCPR/C/98/D/1520/2006, 10 March 2010 [6.3].
[51] Lubuto v. Zambia, Communication No. 390/1990, U.N. Doc. CCPR/C/55/D/390/1990/Rev.1 (1995).
[52] Lubuto v. Zambia, Communication No. 390/1990, U.N. Doc. CCPR/C/55/D/390/1990/Rev.1 (1995).
[53] Case of Hilaire, Constantine and Benjamin et al v Trinidad and Tobago, Hilaire and ors v Trinidad and Tobago, Merits, reparations and costs, IACHR Series C no 9, IHRL 1477 (IACHR 2002), 21st June 2002, Inter-American Court of Human Rights.
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