New Delhi, March 14: The Supreme Court today directed Italian ambassador Daniele Mancini not to leave the country without the court’s permission — an order that theoretically puts the government on the edge of uncharted waters.
Lawyers said that although the ambassador enjoyed diplomatic immunity, he had made himself liable for prosecution in India by giving a sworn affidavit on February 9 that he would personally undertake the responsibility for the return of two marines by March 22.
Italy has since then informed India that the marines, accused of killing two fishermen off the Kerala coast, would not return and suggested the matter be dealt with under a UN convention.
“By giving a sworn affidavit and invoking the jurisdiction of the apex court and Kerala High Court, the diplomat and the marines have forfeited the diplomatic immunity,” solicitor-general Mohan Parasaran later said.
Official sources discounted the possibility of Mancini leaving the country unnoticed because of surveillance outside the embassy.
The diplomatic immunity cannot be challenged within the premises of the embassy. However, once Mancini leaves the embassy office, the diplomatic immunity granted under Article 29 of the Vienna Convention ceases.
“I don’t think he can leave the country or will make any effort to do it. But it is for the Government of India to take all measures to enforce the court’s order,” attorney-general G.E. Vahanvati told The Telegraph.
He said there was no legal precedent to say what could be the outcome “as it is something unprecedented in the world”. It was on the basis of a detailed account by Vahanvati that the court issued the order today.
Senior CBI counsel Ashok Bhan said the Supreme Court had absolute constitutional powers to “uphold the majesty of the law as the custodian of the Constitution”.
Article 142 of the Constitution empowers the Supreme Court to enforce its orders throughout the territory of India. “The Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person,” according to the statute.
The three-judge bench of Chief Justice Altamas Kabir and Justices Anil Dave and Vikramjit Sen issued notices to the ambassador and the two Italian marines — Salvatore Girone and Massimiliano Latorre — for their replies by March 18, when it will take up the matter again.
The apex court passed the order after Vahanvati made a special mention at the commencement of the day’s proceedings and filed a formal application detailing the circumstances leading to the initial arrest and subsequent legal proceedings.
The attorney-general told the court: “On or about March 11, a ‘note verbale’ was received from the Italian embassy alleging that Italy had requested the Government of India to set up a meeting at the diplomatic level in order to reach an amicable solution to resolve the controversy in relation to Article 100 of the United Nations Convention on the Law of Sea (Unclos).
“It was further stated that since a controversy between the two states has been established, the two said marines will not return to India on the expiration of the permission granted to them.”
Vahanvati said India rejected Italy’s contention and had made it clear to that country that the marines’ failure to return within the stipulated time would be a breach of the sovereign undertaking given by the Republic of Italy to the Supreme Court of India.
The court then issued the following order. “Issue notices to the petitioners No. 1 and 2 (the two marines). Let notice be served on the ambassador, Mr Daniele Mancini, returnable by Monday. In view of the undertaking given by him on February 9, 2013, till then Mr Daniele Mancini shall not leave the country without prior permission of this court,” Justice Kabir, writing the order, said.
However, the apex court refused to hear Janata Party leader Subramaniam Swamy who wanted contempt proceedings to be initiated against the ambassador and the two marines. The bench said it would hear Swamy only if he filed a formal written application.
Earlier this year, the apex court had ruled that although the Kerala government had no jurisdiction to try the Italian marines, the Union government could do so. The court directed that a special court be set up to try the marines.