SEA CHANGE

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By The Piracy Bill, introduced in Parliament recently, seeks to tackle the growing incidence of piracy on the high seas. Abimanyu Nagarajan examines the proposed law
  • Published 13.06.12
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Piracy on the high seas has been rampant in recent years. Many of these pirates are from Somalia. On several occasions Indian merchant ships in the Arabian Sea and elsewhere have been attacked by them, so much so that Indian merchant vessels have now been given permission to hire mercenaries to protect themselves.

An International Maritime Bureau (IMB) report says there have been 148 attacks and 17 hijackings around the world this year with Somali pirates accounting for 61 of these attacks and 12 of the hijackings. Around 188 crew members have been taken hostage so far, the report adds. Although the IMB does not have India-specific figures, it does say that since Indian seamen form the bulk of the world’s merchant shipping industry, they have been held hostage by pirates the most number of times.

In an effort to curb this problem, the ministry of external affairs (MEA) recently came up with the Piracy Bill, 2012. The main aim of this bill is to facilitate legal procedures for prosecuting pirates. The bill was felt to be necessary because at present the Indian Penal Code does not even recognise piracy as a crime.

The definition of piracy contained in the Piracy Bill is the same as the one laid down by the United Nations Convention on the Law of the Sea (Unclos), reveals M. Gandhi, joint secretary of the legal and treaties division in the MEA. “This is the accepted definition in more than 140 countries.”

Article 101 of Unclos defines piracy as “any illegal act of violence, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft”. These could take place on the high seas against another ship or aircraft, or against the persons on board. The convention also includes people who operate out of the craft knowing that it will be used for piracy, or by people who help facilitate such acts.

However, although India is a signatory to the Unclos, it has been unable to prosecute those involved in acts of piracy simply because the Indian Penal Code made no mention of it as a crime.

A classic case of the problems with our current laws was demonstrated in the case of the Panamanian cargo ship Alondra Rainbow. On October 22, 1999, the ship was hijacked by pirates while travelling from Indonesia to Japan. The crew was held hostage for a week and then set adrift. Eventually, the Indian Coast Guard and Navy were able to intercept the ship in Indian waters. They captured the pirate crew and handed them over to the Mumbai police.

But then the problems began. Since India didn’t have any provisions to charge the accused with piracy, they were charged with violating laws such as the Indian Passport Act and Indian Firearms Act. In 2003, a sessions court in Mumbai convicted the pirates of nine out of 11 offences and awarded seven years’ imprisonment to them. But when an appeal was filed in the Bombay High Court, all the charges were dropped, and the pirates were acquitted in April 2005.

“The statutes lacked clauses or sections dealing with piracy,” says Ashwin Shanker, a maritime law expert. “The question of piracy did not, therefore, arise. The police, who were the sole prosecuting agency in the Alondra Rainbow case, did not have the requisite legal mechanism or tools at that time to prosecute the pirates.”

In fact, in the current legal framework, apprehending pirates is easier than charging them with the piracy. Pirates are universally seen as hostis humanis generis, or enemies of mankind. “My understanding is that under Unclos,” says Pottengal Mukundan, director of the IMB’s ICC-Commercial Crime Services wing, “any naval vessel of any nationality can take action against pirates on the high seas, where there is no jurisdictional restriction which prevents the pursuit and seizure of the pirates.”

However, prosecuting them is a completely different ball game. And this is where the Piracy Bill comes in, as it seeks to make it easier for the law enforcement agencies to bring pirates to book.

In a startlingly rigorous move, Section 7 of the bill shifts the burden of proof on the accused. The bill also seeks to allow in absentia prosecution of people involved in piracy, and permits the prosecution of stateless persons (many pirates are officially stateless).

Furthermore, according to Section 14 of the bill, the law will extend to India’s exclusive economic zone (EEZ) — the waters that are 200 nautical miles away from the coast. As Shanker explains, “This means that in addition to the high seas and to Indian ships found anywhere in the world, the Indian government will have the power to prosecute pirates found within the EEZ, even though it might be geographically within the territorial jurisdiction of another country.”

But while the bill is clearly a step in the right direction, there are those who feel that it is not without its drawbacks. M.R. Shamshad, a Supreme Court advocate, believes that shifting the burden of proof on the accused as the bill does is unfair. This, he says, runs contrary to the prevailing idea of “innocent until proven guilty”. “The offence of piracy is a wide provision where taking away the presumption of innocence may subject a person, accused as per Section 3, to wait in jail for a long drawn-out trial in case bail is not granted,” he says.

Section 13 of the bill could also pose problems, says Shamshad. Based on the concept of universal jurisdiction, it gives the Indian Navy and the Coast Guard the right to make arrests and seize pirate vessels or cargo outside of India’s territorial jurisdiction. In essence, universal jurisdiction allows countries to claim criminal jurisdiction over people whose crimes were committed outside the prosecuting country’s jurisdiction, regardless of nationality or relation to the prosecuting country.

However, Shamshad points out that the bill fails to set out exactly how the Indian government will exercise this universal jurisdiction over foreign nationals. The governments of the countries the pirates belong to will step in to say that since they aren’t Indian citizens, they cannot be tried in India.

Finally, experts feel that the bill may not be pushed through in a hurry. Joy Thattil, secretary general of the Indian Institute on Maritime Law, Mumbai, says that when it comes to maritime law, the government hasn’t shown much political will. “For example, we had been asking the government for years to get a statute on the outdated Admiralty Law. The Law Commission placed a report in Parliament in 1998, but the bill was formulated only in 2005.”

Indian sailors, at least, would hope for a speedy enactment of the law so they can feel safer on the high seas.