water woes: Somali pirates caught off the coast of Lakshadweep Islands in 2011
Aman Kumar Sharma, 23, feels he is lucky to be alive. He could easily have been shot dead by Somali pirates, who had hijacked their Malaysian cargo vessel MV Albedo off the coast of Somali in November 2010. That was the fate of his fellow Indian crew member Raju Prasad who was shot thrice in the chest by the pirates. After nearly four years in captivity and with the intervention of the United Nations, Sharma and 10 other crew members of MV Albedo were finally rescued last month.
Piracy has become a chilling fact of life, and in recent years marauding Somali pirates have held ships to ransom in the high seas, killing and pillaging at will. While the global community has struggled to apprehend these pirates, unfortunately, in India, even if we catch them, there are no laws under which they can be effectively tried. And though a Piracy Bill has been in the works since 2012, little progress has been made on that front. In fact, with the dissolution of the last Lok Sabha, the Piracy Bill has now lapsed.
At present piracy as a crime is not included in the Indian Penal Code (IPC). Pirates can at best be booked for armed robbery under the IPC or under the archaic Admiralty Offences Act of 1849.
In the latter at least, a “semblance of prosecution” is possible for piracy in the high seas, says a high-ranking officer of the Coast Guard Regional Headquarters (East), Chennai, who was involved in the capture of pirates who had hijacked the ship, MV Alondora Rainbow, near the Cochin coast in 1999.
“When we capture pirates today we don’t know what to do with them. The police refuse to file a case because they do not know what section to book them under,” he says. Second, few police stations in India have the authority to admit piracy-related cases.
“We had to bring the pirates from Cochin to Mumbai after capturing them in the MV Alondora case. We cannot keep pirates on our ships. There are times when we rescue ships but we cannot send the pirates back to their country. No country wants pirates,” he says.
In April this year, the ministry of external affairs filed an affidavit listing their efforts to combat piracy in the high seas in reply to a Supreme Court order directing it to frame anti-piracy guidelines. The affidavit said that besides an inter-ministerial group to deal with all matters pertaining to hostage crises arising out of piracy and hijacking at sea, a Piracy Bill has been framed to lay down the protocol, process and procedure to deal with pirates in international waters.
In 2012, Gaurav Kumar Bhansal, a Supreme Court advocate, filed a PIL demanding government action to bring back Indians kept hostage by Somali pirates. “There is no protocol or legal act in place today to release Indians held captive by Somali pirates. Diplomatic talks are not enough; there are still eight or nine Indians with Somali pirates today. What is the government doing to bring them back,” he asks.
Around 2010-11, Somali pirates started moving away from the heavily patrolled Gulf of Aden and into the Arabian Sea, the Mozambique channel and closer to the western coast of India. That was when India, urged by international organisations and its own Navy and the Coast Guard, decided to frame a law.
The purpose of the bill, said the then external affairs minister, S.M. Krishna, was “to introduce an overarching legislation” to provide certainty and clarity in the law, and ensure “effective prosecution of pirates apprehended by the Indian authorities irrespective of their nationalities”. In 2012, when the bill was introduced, nearly 200 Somali pirates were in Indian jails because there were no appropriate legal procedures in the Indian statutes to prosecute them.
The Piracy Bill defined piracy “as any illegal act of violence or detention for private ends by the crew or passengers of a private ship or aircraft on high seas or at a place outside the jurisdiction of any state”. The definition is more or less on the lines of that set out by the International United Nations Convention on the Law of the Sea (UNCLOS) which lays down the guidelines for management of the world’s oceans.
Experts say the bill had several positive aspects. These include tough punitive measures against piracy. The bill sought to punish piracy with life imprisonment. In cases where piracy leads to death it could be punished with death, the bill said. Other highlights of the bill were punishing those found guilty of abetting piracy with imprisonment of 14 years and a fine, a clause which is similar to the Kenyan statutes, and the setting up of special courts for speedy trials.
Commander Abhijit Singh, research fellow, Institute for Defence Studies and Analyses (IDSA), New Delhi, says the bill was largely consistent with international maritime regulations laid down by the UNCLOS and the Convention for the Suppression of Unlawful Acts of Violence against the Safety of Maritime Navigation. However, he points out that putting the onus of proving innocence on the accused, as the bill did, is contrary to international law. He also says that the proposal to extend India’s jurisdiction to the exclusive economic zone (the waters outside the territorial waters that India can use for commercial purposes but must allow ships of other nations to pass through) could be problematic. “We cannot have jurisdiction over waters which are beyond our territorial limits,” he says.
Commander Sarabjeet Parmar, another research fellow at IDSA, too feels that any new bill to combat piracy would be somewhat hamstrung if it involves the death penalty since nations may be loath to extradite the person for prosecution. However, he is all praise for the Kenyan piracy law which provides for a person to be tried by their courts regardless of where he commits the crime.
There is little doubt that a piracy law is urgently needed in India, a country that has the 17th largest merchant shipping fleet in the world and around 1,00,000 Indians working in merchant ships of other nations. “We’re one of the worst affected by piracy. If it is not an Indian ship there are enough Indians on board foreign ships,” says Shishir Upadhyaya, former joint director, Indian Navy.
Is the government listening?