The Supreme Court of India | Photo: Manisha Mondal | ThePrint
The Supreme Court of India | Manisha Mondal | ThePrint
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New Delhi: The Supreme Court made it clear Friday that it would not close judicial proceedings against two Italian marines accused of killing two Indian fishermen off the Kerala coast in 2012, without hearing the victims’ families.

A bench led by Chief Justice of India S.A. Bobde also said the families of the two fishermen have to be compensated “adequately”, and not “reasonably”, as decided by an international tribunal last month.

India has accepted the tribunal’s ruling.

“We want you to pay not reasonable but adequate compensation. You will bring the cheque here and submit it before this court,” the CJI told the lawyer appearing for Italy.

Solicitor General Tushar Mehta was directed to ensure the families are made to join the proceedings in the top court. “Implead them within a week,” ordered the CJI, indicating the matter will be heard once this order is followed.

The bench was hearing the central government’s application filed on 3 July, seeking closure of judicial proceedings against the marines in India after it accepted the Permanent Court of Arbitration (PCA) ruling at The Hague last month.

The ruling held that India is entitled to compensation in the case but cannot prosecute the marines due to official immunity enjoyed by them. However, it didn’t settle any amount.

In February 2012, India had accused the two Italian marines — Salvatore Girone and Massimiliano Latorre, on board MV Enrica Lexie, an Italian-flagged oil tanker — of killing two Indian fishermen who were on a fishing vessel off Kerala coast in India’s Exclusive Economic Zone.

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‘Should have gone to trial court’

At the outset of the hearing, the CJI highlighted the difficulty in accepting the Modi government’s request.

The Centre cannot seek closure of a case in the top court in view of a criminal case pending in the trial court, said the CJI. The correct course for the Centre would have been to approach the trial court and withdraw the prosecution there, said CJI Bobde.

“There is a criminal charge before a special court (trial) where victims are also appearing. Now without applying for withdrawal of prosecution there, how can you come here? You have not sought withdrawal there. If you had done so, victims’ families could have opposed,” he said.

However, according to Mehta, the Centre chose the top court because it is seized of a petition by the Italian marines to quash the case against them.

After Italy invoked the international tribunal’s jurisdiction last month, the apex court had stayed the proceedings pending before the trial court.

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‘Want it on record here that Italy will compensate’

The CJI also felt that neither the PCA’s ruling took care of the fixed compensation for the victims’ families, nor the trial of the case before the lower court.

“And you have not challenged the award. Now you are saying that the case be taken over by their country,” the CJI remarked.

Mehta explained that in wake of the ruling, the central issue that emerged was whether India could move forth with the prosecution and compensation.

The families of the two fishermen are being represented by the Kerala government, Mehta told the bench when it sought to know who are the lawyers for them.

Noticing the CJI’s insistence to hear the fishermen’s families, Mehta suggested to include them as parties.

“Italy has written to the Government of India that the marines would be prosecuted by their government and compensation would be dealt with,” Mehta submitted.

But the CJI maintained his stance and told him that Italy’s statement should be before the top court. “We want that on record,” he said.

Senior advocate Suhail Dutt, appearing for Italy, assured the bench that the marines were under the public prosecution of Rome. The CJI responded to him, saying the court appreciated it. But Italy “must pay adequate compensation without meddling with it”.

When Dutt and the Kerala government counsel ensued into a technical argument over the enforcement of the award, the CJI said, “Why going on and on and on and on? We told you we will not hear this case without the victims.”

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