We will honour whatever assurance (was) given to Italy,” was Union home secretary R.K. Singh’s public statement to reporters on April 8. The external affairs minister, Salman Khurshid, reportedly informed Parliament on March 22 that Italy was against the marines being awarded capital punishment and had sought clarifications on the same. He reportedly said: “According to the well-settled Indian jurisprudence, this case would not fall in the category of matters which attract death penalty, that is to say, ‘the rarest of rare cases’. Hence, India had conveyed to Italy that there need not be any apprehension in this regard.”
We, the people of India, are entitled to know what was the assurance given? Did the Government of India give an “assurance” to Italy that its marines facing trial on charges of murder of two fishermen from Kerala will not be sentenced to death even if found guilty?
The trial is yet to commence, but the matter is well and truly before the judiciary — hence, sub-judice. Even an opinion or clarification on the outcome of a pending case is improper — commitment about the judicial verdict is per se contempt of court.
It is relevant to note that if the marines are sentenced to imprisonment only, they can undergo the punishment in Italy under the Indo-Italian prisoner exchange treaty which was post-haste ratified in November 2012. Thereafter, the Italian laws about parole, commutation and other conditions would naturally apply.
Ever since the two fishermen were shot dead by the Italian marines on February 15, 2012, about 20 nautical miles off the coast of Kerala, the events that followed were “curiouser and curiouser”.
First the foreigners — accused of committing murder — were allowed by the courts in December 2012 to go home to be with their families for Christmas for one month. On their return the prisoners on bail made another application in February this year to go to Italy — this time to participate in the general elections there. The Government of India apparently did not oppose the application seriously. But the Supreme Court wanted to ensure that the accused would return in time. The Italian ambassador in New Delhi, on behalf of his government, gave an assurance through an affidavit that the accused would return before March 22. They did not and the Italian government conveyed officially that they would not return. The Supreme Court then ordered that the Italian ambassador who gave the undertaking “shall not leave India without the leave of the court”.
There were reactions galore and a controversy of monumental magnitude was about to erupt. In the nick of time the two marines returned.
Questions arose on what brought about a change of the Italian hearts. It is obvious that it’s the “assurance” that did the trick. Hence the curiosity now as to what exactly was the commitment by our government. Surely the legal opinion of our foreign minister — an eminent lawyer himself — would not have been sufficient to reverse the well-considered decision of the Italian state.
On April 16, the question whether the Central Bureau of Investigation should take up the investigation or the National Investigation Agency (NIA) was argued before the Supreme Court — the court’s verdict is expected today. During the hearing, the counsel for Italy, while opposing the NIA on various grounds, voiced a grievance that India has flouted its assurance in as much as the FIR accused the Italians of committing offences carrying death sentence. The attorney-general replied that the FIR was not final. Does this mean that when the time comes for framing charges, the CBI or the NIA will be asked to make adjustment to be in line with the understanding?
Bachan Singh and several other condemned prisoners had challenged the constitutional validity of the court’s power to choose between death sentence and imprisonment for life. A five-judge bench of the Supreme Court (1980) rejected the challenge; through that case the phrase “rarest of rare cases” was introduced into judicial vocabulary, to emphasise that extreme punishment was not routine, but an exception. It is, however, for the court to decide at the time of passing of sentence whether the case in question calls for the sentence of death. The executive government has no power to give an advance ruling in a pending criminal case and then guarantee a foreign state that its subjects would be spared the punishment that our laws prescribe for the offence.
In 1998, India sought the extradition of Abu Salem, a notorious criminal accused of several serious crimes, from Portugal where he was under detention for violation of some local laws. Portugal, which is opposed to death sentence, wanted India to give an undertaking that Salem would not be sentenced to death or imprisonment for more than 25 years as a condition for his extradition. The Government of India gave the undertaking — some say on the hope that Salem will die a natural death before the trials of all the cases against him are concluded. At the instance of Abu Salem, the Portuguese court that had permitted the extradition recently recalled that order because Salem was charged with offences under TADA which carry death sentence. The Portuguese Supreme Court rejected India’s appeal against the recall order; and on further appeal the constitutional court in Lisbon held the recall order in abeyance on the condition that the CBI would amend the charges leading to sentence of death. The CBI has accordingly sought the permission of our Supreme Court to amend the charges before different courts in India to meet the Portuguese objection.
There are, however, vital differences between the Abu Salem case and that of the Italian accused. The former case relates to India’s request for extradition and the host country’s demands have to be met to get a favourable decision.
The Italians — being on bail and undertrial prisoners — are under the custody of our courts. They could leave the shores of India solely with the permission of the Supreme Court that granted the rather unusual favour on the basis of the undertaking of a foreign sovereign state. The government that did not seriously oppose the Italians when they wanted to leave India, now appears to have compromised with propriety and the law by giving an “assurance” about the outcome of a pending criminal case that seems to have convinced the Italian government to order their marines to return to India. The country and the courts are entitled to know the exact arrangement that the government has committed to.

The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India