New Delhi: Earlier this week, both the houses of the Parliament passed the landmark Maritime Anti-Piracy Bill 2019 – the first domestic law to empower Indian authorities and courts to deal with piracy and pirate ships on the high seas.
Moving the Bill, External Affairs Minister S Jaishankar said, “Ensuring maritime security is key to safeguarding India’s security and economic well-being.”
He explained that since more than 90 per cent of India’s trade takes place by sea routes and over 80 per cent of the country’s hydrocarbon requirements was sea-borne, security of these routes and lanes of communication is critical. He also spoke about the incidents of piracy, saying that 27 such incidents involving 288 Indian nationals were detected between 2008 and 2011, and that 19 such cases involving 155 Indian crew members were detected between 2014 and 2022.
The Bill allows Indian authorities to take action against piracy in the high seas. High seas include the Exclusive Economic Zone (EEZ) of India, the EEZ of any other State, as well as all waters beyond the jurisdiction of any other State, i.e. international waters. EEZ is an area of the ocean between 12 nautical miles and 200 nautical miles from the coastline of India. This is an area within which a coastal nation has jurisdiction over both living and non-living resources.
The Bill intends to give effect to the 1992 United Nations Convention on the Law of the Sea (UNCLOS), which provides a framework for combating piracy and armed robbery at sea. This is in view of the fact that such activities of piracy or pirate ships threaten maritime security and endanger the welfare of sailors and the security of navigation and commerce. The Bill also speaks of the increase in piracy incidents towards the western coast of India.
However, what does the Bill say? What does piracy and a pirate ship mean under the Bill? And why was there a need to bring about such a law? ThePrint explains.
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What is piracy
The Bill defines piracy as any illegal act of violence or detention or damage or destruction committed by any person, or by the crew or any passenger of a private ship. Such illegal acts come under the definition of piracy if they are committed against another ship or any person or property on board a ship, on the high seas.
If anybody voluntarily participated in operating a ship knowing that it is a pirate ship, they can also be held guilty of piracy.
A pirate ship has been defined as a ship which is intended to be used by anybody who controls it for piracy activities. The law applies to ships, seaplanes and other aircraft capable of being used as a means of transportation on water or being engaged in any operations at sea.
What does the Bill say
The Bill provides for a maximum punishment of life imprisonment or fine or both, for anybody who commits any act of piracy. This punishment can increase to a life imprisonment or death penalty if any person is found to have caused somebody’s death or attempts to cause somebody’s death while committing the act of piracy.
An attempt to commit piracy or helping someone to commit piracy is punishable with a jail term of up to ten years. Participating or organizing, or directing others to participate in an act of piracy will be punishable with up to 14 years of imprisonment, or a fine or both.
As to who will implement the law, the central government can confer powers of arrest, investigation and prosecution– as are available to a police officer under the Code of Criminal Procedure– to any of its officers or any state government officer. If an authorized personnel then suspects that any ship is engaged in piracy on the high seas, he can board the ship and arrest the people or seize the ship and property on board.
The Bill also provides for designation of a specific sessions court in the States for speedy trial of offences under the law. Notably, this court would have the jurisdiction to handle cases against any person apprehended by or in the custody of the authorised personnel or police– irrespective of their nationality or citizenship of the person. In other words, these courts would be able to handle trials against foreigners caught under this law as well, along with Indian citizens, or resident foreign nationals in India or stateless people.
However, warships and government-owned ships employed for non-commercial purposes will not be under the jurisdiction of the court.
NDPS-like bail conditions
Section 12 of the Bill lays down the bail conditions under the law–similar to the much criticised bail conditions prescribed by the Narcotics Drugs and Psychotropic Substances (NDPS) Act 1985. It requires the court to have “reasonable grounds” to believe that the accused is not guilty and that he is unlikely to commit another offence while on bail.
The bail provision under UAPA, which has been the talking point over the past few years owing to its stringency, does not have any such pre-condition. The Supreme Court acknowledged this in February this year, saying that the bail provision under UAPA is “comparatively less stringent” than the bail provision under NDPS. Therefore, this new Bill now has bail conditions more stringent than UAPA.
In fact, while the Bill was being discussed in the Parliament, Congress member Vivek Tankha supported it, but asked the government to look at some of its harsh provisions, including the bail provisions.
Additionally, the Bill also provides for presumption of guilt of the accused, unless the contrary is proved, in case certain conditions are satisfied. For instance, the accused would be presumed to have committed the offence, if arms, ammunition, explosives and other equipment are recovered from the possession of the accused, and there are reasonable grounds to believe that these were used, or intended to be used in commission of an offence. This would also apply if there is evidence of an intended threat of using bombs, arms, firearms, explosives or committing any form of violence against the crew, passengers or cargo of a ship.
The fundamental principle of criminal law is that an accused is presumed to be innocent until proven guilty, and therefore, the burden lies on the prosecution to prove his guilt. However, the Bill overturns that, and places the burden on the accused to prove his innocence instead, in certain conditions when he is presumed to have committed the offence.
While the Bill was being debated in the Lok Sabha, Congress MP Manish Tewari felt that this provision might make the extradition of the accused difficult. He asserted that the provision is “going to become detrimental to larger international cooperation to combat piracy”, and explained, “when you are talking about piracy, you are also implicitly talking about cooperation with other countries. If presumption is shifted on accused and accused has to be extradited from a third country, that country will not extradite an accused who is already proven to be guilty till the time he doesn’t prove himself to be innocent.”
Why is a law needed
India is a party to the United Nations Convention on the Law of the Sea adopted by the United Nations on 10 December 1982, and ratified the convention on 29 June 1995.
Up until now, it did not have any domestic law on maritime piracy. Therefore, Indian Penal Code provisions relating to armed robbery are usually used to prosecute pirates apprehended by the Indian Navy and the Coast Guard. However, this has proven to be inadequate in the past.
The hijacking of Japanese ship MV Alondra Rainbow in 1999– the first sea piracy case tried by an Indian court–is often cited as an example of such inadequacy. A group of armed Indonesian pirates were captured by the Indian Coast Guard in the Arabian Sea and they were tried in India. While a sessions court in Bombay tried and convicted the pirates under various sections of the Indian Penal Code, the Bombay high court overruled the lower court’s decision and acquitted all the accused in April 2005.
The statement of objects and reasons of the 2019 Bill also explains the growth in piracy. It explains that the Gulf of Aden– which separates Somalia and Yemen and connects the Arabian Sea to the Red Sea and through the Suez Canal to the Mediterranean Sea– has seen a spurt in attacks by pirates operating from Somalia since 2008. This route is used by 2,000 ships each month for trade between Asia and Europe and the East coast of Africa. However, the statement says that with enhanced naval presence in the Gulf of Aden, pirates shifted their area of operations, leading to several such piracy incidents towards the western coast of India as well.
The Bill was introduced in the Lok Sabha on 9 December 2019 and was then referred to the Standing Committee on External Affairs for detailed examination. The committee submitted its report on the Bill in February 2011. The Bill was then passed by the Lok Sabha on 19 December and the Rajya Sabha on 21 December. The fifteen section-Bill will become a law once the President provides her assent to it.
(Edited by Smriti Sinha)
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