India has again bungled the marines issue

My earlier article ‘India has botched up the marines issue’ (DNA, March 15) closed with the dismal statement that India is not the US to get back the marines by any means; and Italy may not care a hoot if India severs diplomatic ties with it; so all that we can say now in dismay is see you marines again when you turn up to shoot our fishermen! The dismay still remains.

For, though the marines returned to India, the decision to return them hinged not so much on the Italian defence firms eyeing huge Indian business as on the Centre’s placating the Italian government. This was evident from external affairs minister Salman Khurshid’s statement that the Italian government had sought assurances that the marines would not be arrested upon their return or run the risk of being given the death penalty in the event of their conviction by an Indian court.

Khurshid slightly nuanced this statement in the Lok Sabha by changing “assurances” into “clarifications” so as to make it appear non-controversial. Among other things he said: “[The Government of Italy] sought from India clarifications regarding the conditions applicable to the marines on their return and the provisions regarding the death penalty that could be applicable in this case which was an Italian concern.

Notwithstanding the pending proceedings, the government has informed the Italian government that the two marines will not be liable for arrest if they return within the time frame laid down by the Supreme Court of India...; and that, according to well settled Indian jurisprudence, this case would not fall in the category of matters which attract the death penalty, that is to say the rarest of rare cases. Therefore, there need not be any apprehension in this regard.

As the marines returned within the stipulated time, the issue of their arrest did not arise. However, Khurshid’s assurance that there would be no death penalty was premature as it was made even before the trial began and was a clear case of ministerial hubris as it is only the judiciary which can pronounce the nature of punishment after the due process.

Predictably, his bungling drew a lot of flak from concerned and discerning individuals in Kerala, the state which still mourns the killing of the two fishermen:

The decision appeared part of a deal struck between the Indian and Italian governments, rather than a step meant to comply with the Supreme Court’s directions as it was on the basis of some assurances by the Union government that the marines were sent back; the assurance that the marines would not be given capital punishment was wrong; a court of law has to decide on the question; according to Khurshid, the assurance was given to Italy because the killing of the fishermen  was not the “rarest of rare” case for which the death sentence could be awarded; the court, and not a Union minister or any other representative of the executive arm of the government, must decide whether or not it was such a case; Khurshid’s statement constituted a challenge to the Indian judiciary, amounted to the government interfering in the judicial process, and has created doubts in the minds of the fishing community whether justice would be done in this case; and so run the criticism.

The reference to doubts created in the minds of the fishing community is worrisome when seen against the fact that the Centre has asked the Delhi high court to set up a special court to try the marines. This is despite the letter from Kerala chief minister Oommen Chandy to the prime minister demanding that the sessions court at Kollam be designated as the special court. His letter makes immense sense inasmuch as the legal proceedings against the marines were initiated by this court, all records and evidence are now with it, and the witnesses in the case would find it difficult to travel frequently in the event of the special court being set up in Delhi.

It will be a sad day for the Indian judiciary and a travesty of justice if the special court is set up in Delhi with the marines staying in the Italian embassy and appearing before the trial court as  special persons and the poor witnesses from Kollam travelling every time to Delhi.

The author is a former professor of Sociology and a media commentator on public affairs
prk1949@gmail.com