India’s Response to Maritime Piracy – The Piracy Bill, 2012

June 22nd, 201311:09 am @    


1. Understanding Piracy in the International Context

Laymen often confuse the word ‘piracy’ with the usual ‘copyright infringements’ in the contemporary lexicon but International Law accords a much weighty meaning to the term. United Nations Convention on the Law of Seas, 1982, which saw codification of different sets of customary international law principles, has 164 countries along with the European Union as members of the convention. Article 101 of the same deals with the “definition of piracy” and reads hereunder:

“Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).”[1]

On a much closer analysis of this definition one would realize that piracy is an illegal act of violence or detention or any act of depredation committed for private ends [clause (a)]. It is a crime which is committed on the high seas [clause (i)] or outside the jurisdiction of any State [clause (ii)]. There is no mention of piracy occurring in territorial waters of a State.

It is inevitable for me to cite the Somali pirate groups to give a much clearer example of what the Article deals with. But piracy is not limited to Somalia’s coast (Africa’s longest), the entire Horn of Africa juts like a dagger into the Arabian Sea to form a strategic chokepoint, and in recent years, private insurance companies have begun to pay billions in ransom on behalf of their ship-owning clients.[2] The mainstream media has described today’s pirates as savage enemies of humankind, with pundits even saying that if it were not for political correctness, international law, and human rights, we could eliminate this scourge.[3]

2. The MV Alondra Rainbow Case

The standoff between the hijacked MV Alondra Rainbow, a 7,000 ton Panama registered vessel, belonging to Japanese owners and Indian naval and coast guard ships in November 1999, and its final capture was regarded as a great success for maritime community to counter sea piracy.[4] By February 2003, the Mumbai Sessions Court accepted the charges and the 15 pirates were awarded an imprisonment of seven years and varying fines.[5] Although the prosecution was successful in the trial court, the appeal went in favour of the accused in the High court six years later. The reason proffered was that there were some ‘systemic/ organisational failures’, which led to the acquittal of the criminals.

3. In Comes the Piracy Bill, 2012

In the absence of a piracy law or the definition of piracy in the penal law of India, other relevant provisions of the Indian Penal Code and Admiralty Act were invoked to try the pirates in the MV Alondra Rainbow case which evidently witnessed the prisoners walking free from the court. The reasons for formulating this bill are thus, twofold: the first being the necessity of a dedicated anti-piracy law – an exigency that emerged during the prosecution of pirates in the MV Alondra Rainbow(1999) incident and more recently during the trials of Somali pirates apprehended since Oct 2008. The second reason is the UN General Assembly Resolution 64/71 of 12 Mar 2010 which urged all member states to take necessary steps under their national law to facilitate the apprehension and prosecution of personnel who are alleged to have committed acts of piracy.[6]

The Bill was introduced in Lok Sabha on 24th April, 2012 and was referred by the Hon’ble Speaker to the Standing Committee on External Affairs for examination and Report. However, in an affidavit filed in the apex court, External Affairs Ministry said that the Piracy Bill 2012, prepared by it in consultation with the ministries of Shipping, Defence, Home Affairs and Law & Justice, has been approved by the Cabinet and will soon become an enacted law.[7]

4. Features of the Piracy Bill, 2012

The Bill seeks to implement provisions related to piracy mentioned in the United Nations Convention on the Law of the Sea, 1982 (UNCLOS). Non-inclusion of piracy in the Indian Penal Code (IPC) led to prosecution of pirates and it is to fill this gap that the bill was introduced.

4.1. Definition and Nomenclature

Under Section 2 (1) (e), definition of ‘piracy’ is in toto with the UNCLOS definition. In addition to this it stipulates that any act which is held to be ‘piratical’ under international law shall be included in the definition. The Standing Committee in its report suggested that the bill be renamed to ‘Anti-Maritime Piracy Bill, 2012’ as it would be in sync with the intent of the bill and would not confuse anybody with the other meanings of the word.

4.2. Punishment

By means of Section 3, the Bill seeks to punish piracy with imprisonment for life. But in cases where piracy leads to death, it may be punished with death. The Bill also lays down punishments for attempts to commit [Section 4] and abet [Section 5] piracy. Such acts shall be punishable with imprisonment up to 14 years and a fine.

4.3. Jurisdiction

Section 6(2)(b) makes it possible for Designated Courts to prosecute even stateless pirates and addresses the issue of Somali pirates operating from a dysfunctional territory. Under this bill, preventive detention and even prosecution is feasible on presumptive grounds, if sufficient evidence is available for piratical intent. The draft bill also provides for in absentia prosecution for such offences [Section 6(3)].

4.4. Special Features

The bill prescribes, under Section 14, that its provisions shall also extend to the ‘exclusive economic zone of India’[8]; the first time that Indian jurisprudence is being extended beyond the territorial waters. The other distinguishing characteristic of the Bill is that it puts the onus of proving the innocence on the accused, instead of the hitherto basic caveat of ‘being innocent until found guilty’[9] by means of Section 7.

5. Conclusion

Contiguous zones and EEZ for all practical purposes are considered as high seas except for certain purposes and therefore the extended judicial reach of this Bill may not find favour with other nations. However, since piracy is a momentous issue, the extended jurisdiction may not be an impediment after all. Apart from all the criticism this Bill should be welcomed by the Indian sovereign as it provides it with all the ‘operational freedoms’ it requires to tackle this ever growing notorious phenomenon in addition to the necessary legal force.



[1] Art. 101, United Nations Convention on Law of the Seas, 1982.

[2] Id.

[3] Sonia Cardenas & Andrew Fibbert, Why We Love to Hate Pirates, Counter Punch, May 22-24, 2009, accessed at http://www.counterpunch.org/2009/05/22/why-we-love-to-hate-pirates/.

[4] Vijay Sakhuja, Maritime Legal Conundrum, Institute of Peace and Conflict Studies, #1778, June 29, 2005, accessed at http://www.ipcs.org/article/india/maritime-legal-conundrum-1778.html

[5] Id.

[6] Raghavendra Mishra, Draft Indian Piracy Bill – Preliminary Assessment, National Maritime Foundation.

[7] See New law to be enacted to prosecute sea pirates: Govt to SC, The Hindu, New Delhi, April 12, 2013.

[8] Seazone over which India has sovereign rights for exploration and use of marine resources. It stretches outward from the coastal baseline, up to 200 nautical miles into the sea.

[9] Supra note 6.

Article by

Akshay is pursuing BA.LLB (Hons) from Hidayatullah National Law University, Raipur (C.G)

Connect with him on Facebook.

Enter your Email Address to Get Similar Articles in your Inbox Free!

  

MightyLaws is not responsible or liable for the views expressed by the authors. The articles are general information and should not be treated as legal advice. Please read the Disclaimer for further clarifications.