Indian law aims to repress maritime piracy
IN December 2022, both Houses of Parliament finally passed a special legislation on “repression of piracy”. The 2019 Anti-Maritime Piracy Bill is in tune with India’s assurance of “respect for international law” and “commitment to international law”. The Standing Committee on External Affairs (SCEA) has provided concrete suggestions to strengthen the original Bill, which was introduced in Parliament by the External Affairs Minister on December 2, 2019. Ostensibly, it seeks to address the challenge of piracy on the high seas and gives effect to obligations under the 1982 UN Convention on the Law of the Sea (UNCLOS). The UNCLOS, with 168 parties, was ratified by India on June 29, 1995.
Piracy has emerged as a menace in the area surrounding the Gulf of Aden that separates Somalia from Yemen. The Gulf of Aden connects the Arabian Sea to the Red Sea and through the Suez Canal, to the Mediterranean Sea. Since 2008, Somali pirates have posed a serious threat to some 2,000 ships that monthly carry cargo for trade between Asia, Europe and the East Coast of Africa. With the presence of navies in the Gulf of Aden, the pirates have shifted their base and now pose a threat to the western coast of India. Intensive patrolling by the Indian Navy and the Coast Guard has led to apprehending of pirates and, in turn, the need to prosecute them under a specialised domestic law.
Charges such as armed robbery (Section 392 of the IPC) and invocation of jurisdiction of the admiralty courts (dealing with shipping and maritime disputes) were found to be inadequate. Thus, the anti-piracy lex specialis was needed for prosecution of piracy crimes as well as ensuring safety of the Indian maritime trade, vessels and the crew.
Historically, piracy has been dealt with under international law or the Law of Nations. It comprises any illegal act of violence or detention or depredation committed by the crew or passengers on the high seas (beyond limits of national jurisdiction). Hence, pirates can be tried and punished by any nation. In fact, pirates have been considered as enemies of humankind.
For centuries, maritime trade has been a global hallmark. Even today, almost 90 per cent of the global trade is transported by ships that pass through vital sea lanes. In earlier times, sea piracies were rampant, like dacoity on the land. It still exists in certain pockets. Eradication of piracy has assumed significance after Prime Minister Narendra Modi laid emphasis on the blue economy that is vital for a self-reliant India.
Though piracy has been considered an international crime under the international law, it is the domestic courts where pirates have been prosecuted. In a well-known case of piracy, Chinese nationals (1934) who had attacked a cargo junk were indicted in Hong Kong for the crime of piracy. The Privy Council (July 26, 1934) took the view that the international law is ‘a living branch of the law’. The charge was under the international law of piracy, and determined accordingly. However, the recognition of piracy as a global crime, and the trial and punishment of criminals are left to the municipal law of each country.
It is in this context that the Indian Anti-Maritime Piracy Bill holds significance. After its introduction in the Lok Sabha, it was referred to the SCEA. The committee examined the Bill and suggested certain amendments in its February 2021 report. Invoking the international law of piracy, the Bill draws the mandate specifically from obligations under the UNCLOS (Article 105). It seeks to apply the Indian law for crimes committed on the high seas — an area “beyond the limits of national jurisdiction”. Article 100 of the UNCLOS explicitly provides for “repression of piracy on the high seas or in any other place outside the jurisdiction of any state”. This region constitutes the area beyond 200 nautical miles, up to which the exclusive economic zone (EEZ) of India extends.
Article 105 specifically stipulates that “every state may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board”. It provides that the “courts of the state which carried out the seizure may decide upon the penalties to be imposed”. Under Article 101 of the UNCLOS, three essential elements are required for an act to constitute piracy: there is an illegal act of violence or detention or depredation, committed for private ends by the crew or passengers of a private ship or a private aircraft; committed on the high seas, against another ship or aircraft; and it is outside the jurisdiction of any state.
The letter and spirit of the 2019 Indian legislation reflects all these elements whose objectives comprise the following: application to all parts of the sea adjacent to and beyond the limits of the EEZ; make the offence of piracy on the high seas punishable with life imprisonment or with death; deals with acts or attempts or being accessory to the commission of the offence of piracy; presumption of guilt if certain conditions are fulfilled; makes the offence of piracy extraditable and designation of certain courts for speedy trial for piracy under the new legislation.
The preamble to the 2019 Bill uses the word ‘repression’ of piracy instead of standard words used in a criminal legislation such as elimination, eradication, combating or prohibition. Nevertheless, the new law is expected to help curb the menace of piracy and act as a vital tool for the Navy and Coast Guard in securing the crucial sea-trade lanes in the vicinity of Indian waters.
