After Italy snubbed India by deciding not to return the two Italian marines facing trial for killing Indian fishermen, legal experts point out that Rome could not have taken the “treacherous” decision had the Supreme Court and Union Government taken sufficient precautions.
Making out a clear case of contempt against the Italian Government and its Ambassador on whose undertaking the Supreme Court allowed the marines to leave the country on February 22, the experts suggested that if the Government was serious about bringing back the Italian marines, they must be extradited even as trial may proceed ex-parte against them.
Speaking to The Pioneer, former Attorney General Soli J Sorabjee said, “Italy's decision clearly amounts to contempt.”
He was of the opinion that the Ambassador cannot claim diplomatic immunity as it was he who had approached the court. “There is no question of his enjoying any immunity. Any public spirited person can approach the court in the event the Supreme Court refuses to taken suo moto notice of contempt,” he added.
His view found acceptance by the Solicitor General Mohan Parasaran, who said, “It is sad that rule of law has been flouted at the highest level of the Supreme Court. After having submitted to the apex court's jurisdiction, the Italian government should abide by it.”
Senior lawyers of the Kerala High Court said that it was a point to be debated whether the Supreme Court had looked at all possible aspects to ensure the Marines' return when it allowed them to go home last month. They said the apex court had perhaps not taken the caution the Kerala High Court took when it allowed them to go home to celebrate Christmas.
“Justice P Bhavadasan (of the Kerala High Court) had allowed the two Marines to go to Italy for celebrating Christmas on the basis of an unambiguous agreement reached at between the governments of the two countries. In the case of the Supreme Court order allowing them to go home, such a measure had not been taken,” said a senior lawyer practicing in Kerala High Court.
Senior advocate Rajiv Dhavan suggested that even if the marines do not return, enough legal options were available to the Centre. “They can be declared absconders while trial against them could still proceed,” he said. India could seek extradition of the marines once the trial against them has concluded, Dhavan added.
Experts also pointed out that there were huge lapses on the part of the Union Government in the case of the permission the marines were given to go home for a second time. They are of the opinion that the Centre, which had perhaps grown complacent as the Marines had returned before the scheduled date after celebrating Christmas in Italy, had taken the matter lightly.
“The Supreme Court had allowed the Marines to go to Italy on the basis of the assurance given by the Italian Ambassador and the favourable position taken by the Centre, which had not even consulted the Attorney General on this. When star lawyer Harish Salve appeared for the marines, the Attorney General failed to represent the Central Government,” said the senior lawyer.