New Delhi, April 30: The Supreme Court Monday took exception to the Kerala High Court approving an agreement between the Italian government and the kin of two Indian fishermen killed by two Italian marines Feb 15, thereby capping all legal proceedings related to the incident. The court termed the agreement void.
“It is astonishing,” the court said while hearing a petition by the owners of Italian ship Enrica Lexie challenging the high court order detaining the vessel. The marines were on this ship when they mistook the fishermen to be pirates and shot them dead off Alappuzha in Kerala.
The court said that the agreement between the Italian government and the families of the victims was to thwart Indian courts from going into the matter.
It (the agreement) was void and “hit by Section 33 of the Indian Contract Act (which deals with enforcement of contracts contingent on an event not happening)”, the court said.
The apex court bench of Justice R.M. Lodha and Justice H.L. Gokhale asked: “What are these people in Lok Adalat doing? Doing something that is illegal and beyond the procedure. How could they be a party to such an agreement by putting a seal of approval? If the high court has put the seal of approval then less said the better.”
The court observed that “this is against public process”. The judges also wanted to know if the Kerala government had moved to stop it.
“Has the state of Kerala not opposed it,” the court asked senior counsel Gopal Subramaniam who appeared for the state government.
Subramaniam told the court that he had already asked the government to impeach such a course. He said that the “only thing that we should do is to protect our courts from any kind of over-reach”.
At this, Justice Lodha said “that state of Kerala had to do”.
The matter reached the apex court after Goramma, widow of one of the two fishermen killed by the marines, moved the high court against the lifting of curbs on the ship’s departure from Indian shores. She won a favourable order from a division bench which stayed a single judge’s order allowing police to permit the ship to set sail.
Enrica Lexie’s owners have now challenged the division bench’s order in the Supreme Court.
Pointing to senior counsel K.K. Venugopal, appearing for the ship owners, Justice Lodha said: “This is virtually playing with Indian legal process. Taking this lady (Goramma) out of the scene through illegal means is impermissible.”
“Through payment of Rs.1 crore, her mouth had been silenced. What pains us is the manner (in which) Indian process is sought to be defeated by entering into an agreement with the (victim) lady,” said Justice Lodha.
The judges said that the ship could not be detained for long but everything ran into a hurdle on the question of whether the Italian government was inclined to stand guarantee that it would ensure the presence of its six marines on board Enrica Lexie who too would leave along with the ship.
The court said that the liberty enshrined in the constitution was not limited to Indian citizens but extended to everyone on its territory. However, the court wanted some assurance that the six marines would present themselves before the trial court as and when required.
The judges were told that the Italian government had already approached it challenging the jurisdiction of Indian court on its vessel and its crew members, including the marines.
Counsel for the Italian government told the court that Rome would make its marines submit to Indian jurisdiction only if the apex court decided against its plea.
The court wanted an assurance that the Italian government would make its marines available to appear before the court to tender evidence as and when required.
The central government filed an affidavit before the court distancing itself from the stand taken by Additional Solicitor General (ASG) Harin Raval that the director general of shipping had said that the ship could be released.
Attorney General G.E. Vahanvati told the court that “what is there on record is contrary to what the ASG had said the last time”.
“It was not an issue before the court and the ASG’s views were unnecessary,” he said.
The judges told Vahanvati: “There is nothing to show that what ASG said was incorrect.”
When the court drew the attention of the attorney general to the stand of the shipping ministry, the attorney general said it was the position of the director general of shipping.
Raval earlier told the court that the concerned police station in Kerala had no jurisdiction in the case as the Italian vessel was found at 20.5 nautical miles from the coast and the Indian territory extended to only 12 nautical miles.
The matter would next be heard Tuesday.