Article 105 of the United Nations Convention on the Laws of the Sea (also known as the Law of the Sea Treaty) came into force in 1994 and was ratified by India on 29 June 1995. Article 105 of this Convention specifies, “On the high seas, or in any place outside the jurisdiction of any State, 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. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.
Are India courts equipped to deal with such cases? The answer is perhaps best provided by the case of Alondra Rainbow, a Japanese owned ship seized by pirates in Indonesian waters and found in the Indian EEZ. A synopsis of the case is as follows:-
MV Alondra Rainbow sailed from Kuala Tanjung in Sumatra on the night of 22 Oct 1999 with a cargo of 7000 tons of Aluminium ingots, worth about $ 15 million, bound for Miike, in Japan’s Fukuoka Prefecture. Less than three hours after sailing, she was boarded by 10 men using a high speed boat armed with pistols and knives. The crew were tied, blindfolded and kept in a small compartment till the next morning, when they were transferred, still blindfolded, to another ship. Six days later, on 29 Oct 1999, they were set adrift in a life raft. They were rescued by a Thai fishing trawler on 09 Nov 1999, after they had been adrift for 11 days.
Meanwhile, the Japanese Ship Owners Association and Japanese Coast Guard appealed to coastal states for information about the ship. The International Maritime Bureau (IMB), a specialised division of the International Chamber of Commerce established in 1981 to act as a focal point in the fight against all maritime crime and malpractice, put out a search warning. The vessel was sighted by the Indian Coast Guard on 12 November 1999, but allowed to proceed.
On 13 November 1999, the Captain of a Kuwaiti tanker reported that a vessel matching Alondra Rainbow’s characteristics had been sighted heading into the Arabian Sea. of such a ship having entered Manila. A search was launched and the ship was located about 430 Km West of Goa. On being ordered to stop, she increased speed; it took a shell from an Indian Naval warship fired into her engine room to stop her.
When the Indian Navy team boarded, they found that the ship’s captain was trying to sink her to destroy evidence. A search brought forth documents proving the ship was Alondra Rainbow. She was arrested, taken to Mumbai and a complaint lodged with the designated police station. On interrogation, the crew confessed that they were on board Alondra Rainbow, that half the cargo had been unloaded to another ship (3000 tons of Aluminium ingots were later found in a warehouse on the outskirts of Manila) and that they were on the way to UAE to sell the rest.
In accordance with Article 105 of UNCLOS, the captured pirates were tried in India. Notwithstanding India being a signatory to UNCLOS, lawmakers had failed to include a provision for Piracy in the Indian Penal Code. The captured pirates were prosecuted for a variety of offences, including trespassing under Sections 441 and 447 of the IPC, waging war against the country under Section 121 IPC, attempt to murder under Section 307 IPC, armed robbery and dacoity under Sections 397 and 398 IPC, and for violations of the Foreigner’s Act of 1946 and the Passports Act of 1976. The Sessions Court accepted the charges, tried the pirates and sentenced them to 7 years imprisonment plus fines in February 2003. On 18 April 2005, the Mumbai High Court overruled the Sessions Court and acquitted all 15, saying “systemic and organisation failures” had led to the acquittal.
What were these ‘systemic and organisational failures’? The Japanese Master and Chief Engineer of the ship failed to identify the pirates, possibly due to fear of reprisal. This meant that the prosecution could not prove that the persons who were arrested at the time of seizure of the ship were the same persons who had attacked the ship in Sumatra. At most, they were in possession of stolen goods – but that is not piracy, and given the cocktail of nationalities involved and the fact that the arrest was on the high seas, the Mumbai High Court allowed the ‘pirates’ to walk away.
This case brings out how difficult it is to bring pirates to book, particularly in democratic States like India. Regular courts are seldom able to understand the context and intricacies of maritime crimes and thus hand out inappropriate verdicts. Is it time to remedy this situation?
On 24 April 2012, the then External Affairs Minister, Shri SM Krishna, introduced the Piracy Bill 2012 in the Lok Sabha. This was intended to make piracy a crime and provide clarity in Indian law. The Bill lapsed with the dissolution of parliament in 2014. There still remains a void so far as piracy specific legislation in India is concerned. There is also a belief that the Suppression of Unlawful Activities Against the Safety of Maritime Navigation Act of 2002 could be used in such cases. If this were indeed true, why was there need for Shri Krishna to introduce the Piracy Bill in the Lok Sabha 10 years later?
The aim of this blog is to initiate a debate on piracy and India’s preparedness to deal with it. The following questions require your opinion:-
Piracy has been defined by UNCLOS. Is this definition adequate? If not, what are the shortcomings and how can they be rectified?
Is the Indian legal system equipped to deal with pirates? Again, if not, what are the shortcomings and how can they be rectified?
Who is responsible for the nation’s failure to implement its obligations under UNCLOS, as exemplified in the Alondra Rainbow case?