MOVID had already written a piece on this topic and to bring clarity to the cacophony created by the media and the partisan views expressed by all and sundry, MOVID is following up the earlier blog bloghttps://movid.wordpress.com/2013/03/14/vienna-convention-italian-marines/ with this one.
First and foremost, none talks of the ACT passed by the Indian Parliament, which is Act No.43 of 1972 and called THE DIPLOMATIC RELATIONS (VIENNA CONVENTION)ACT,1972.
Further the Indian Constitution which is the bed-rock of all laws made after India became a Republic and a touchstone of laws made before that at Article 51 says as follows:
(c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and encourage settlement of international disputes by arbitration
Though Article 51(c) says we got to ‘respect’, all International Law and Treaty Obligations, they are NOT binding on the Superior Courts of India, as interpreted in the case of Jolly George Verghese & Anr vs The Bank Of Cochin on 4 February, 1980 thus:
India is now a signatory to this Covenant and Article 51(c) of the Constitution obligates the State to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another”. Even so, until the Municipal Law is changed to accommodate the Covenant what binds the courts is the former not the latter.
(I wonder if Justice Krishna Iyer was ignorant of the ACT passed by then by the parliament – or was it not notified by 1980?- God knows, we Indians have no recourse to ascertain whether a bill having been passed by the Houses has received assent from the President and thereafter whether the Government had notified the ACT to come into force!)
Therefore we as Indians HAVE TO go by the Act of parliament mentioned above. Which at Section 5 states as follows:-
For the purpose of article 32 of the Convention set out in the Schedule, a
waiver by the head of the mission of any State or any person for the time being
performing his functions shall be deemed to be a waiver by that State.
and Article 32 includes a sub-paragraph which is
2.Waiver must always be express
Further, Article 31 to the Schedule to the said Indian Act says:
1.A diplomatic agent shall enjoy immunity from the criminal jurisdiction of
the receiving State. He shall also enjoy immunity from its civil and administrative
jurisdiction, except in the case of:
a) A real action relating to private immovable property situated in the
territory of the receiving State, unless he holds it on behalf of the sending State for the
purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is
involved as executor, administrator, heir or legatee as a private person and not on
behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised
by the diplomatic agent in the receiving State outside his official functions.
2.A diplomatic agent is not obliged to give evidence as a witness.
My question is very fundamental:
WHEN THE ACT OF PARLIAMENT SUFFUSES A DIPLOMAT WITH ALL THESE IMMUNITIES AND PRIVILEGES, HOW COME THE LEARNED PROSECUTORS DID NOT DEMUR WHEN A DIPLOMAT STOOD GUARANTEE TO THE RETURN OF THE MARINES?
The more intriguing part is the latest argument which is forwarded by all and sundry that the Italian Diplomat by having assured the court of the return of the Italian Marines, has WAIVED HIS DIPLOMATIC IMMUNITIES AND PRIVILEGES!
What a fantastic argument! The Act of the Parliament of India has accepted Article 32 of the Vienna Convention on Diplomatic Immunities and Privileges and has incorporated the same in the Schedule to the Indian ACT, so where is the EXPRESS WAIVER?
It is time our “officers of Court” at least read up the relevant ACTS and then open their mouths in the Courts otherwise, we as Indians would have not only unenforced laws but also massively misinterpreted laws!