Anti-Maritime Piracy Bill: Analysis

By- Paromita Maitra

Published on: April 1, 2022 at 10:00 IST

Introduction

The Anti-Maritime Piracy Bill 2019 aims to improve the safety and security of Indian maritime trade as well as the safety of its crew members.

The Government’s goal in creating the proposed legislation, according to a version of the Bill available on the Lok Sabha website, was to retain India’s commitment to the United Nations Convention on the Law of the Sea (UNCLOS), which ended in 1982.

In 1995, India ratified the UNCLOS.

Despite the fact that many Indian citizens are victims of piracy, the statute states that India does not have a specific anti-piracy law.

It adds that the sections of the Indian Penal Code relating to armed robbery, as well as the admiralty jurisdiction of Specific Courts, have previously been used to prosecute pirates caught by the Indian Navy and Coast Guard.

However, in the absence of any special law in India dealing to the crime of marine piracy, there are difficulties in guaranteeing successful prosecution of pirates.

The Bill was introduced just days after 18 Indians aboard a crude oil transport were abducted off the coast of Nigeria.

Highlights of the Bill

• The Bill allows Indian authorities to take action against high-seas piracy. The UN Convention on the Law of the Sea is enacted through this bill. It covers the sea beyond the Exclusive Economic Zone (EEZ), which is 200 nautical miles off the coast of India.
• The bill defines piracy as any criminal act of assault, detention, or destruction by the crew or passengers of a private ship or aircraft for private benefit against a ship, aircraft, person, or property.
• Inciting and knowingly facilitating such acts of violence, as well as voluntarily participating in the operation of a pirate ship or aircraft, are all examples of piracy.
• Committing piracy will result in either I life imprisonment or (ii) death, depending on whether the act of piracy causes or attempts to cause death.
• Participating in, organizing, assisting, supporting, attempting to commit, or directing others to participate in piracy will result in a sentence of up to 14 years in jail and a fine.

Analysis and Key Issues

• According to the Bill, if a person causes or attempts to cause death while committing piracy, he will be sentenced to death. This suggests that such crimes must be punished with the death penalty. The Supreme Court ruled that the death sentence for any crime is unconstitutional since it contradicts the Constitution’s Articles 21 and 14. However, legislation have been introduced in Parliament that make the death sentence mandatory for certain crimes.
• If a person participates in piracy, the bill allows for a sentence of up to 14 years in jail.

Piracy is punishable by life imprisonment (which includes voluntarily participating in the operation of a pirate ship or aircraft). Because these circumstances may overlap, it’s unclear how the punishment would be decided in these situations.

• The Bill will apply to all areas of the sea near to and beyond India’s Exclusive Economic Zone (EEZ), or beyond 200 nautical miles from the shore. The argument is whether the Bill should also encompass the EEZ, which is defined as the area between 12 and 200 nautical miles (from the coastline of India).

HIGHLIGHTS OF THE BILL

Piracy is defined under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) as any act of violence, detention, or destruction committed for private gain against individuals or property on board a ship on the high seas or outside any state’s authority.

Piracy jeopardizes maritime security by jeopardizing the safety of seafarers and the security of navigation and commerce.

The loss of life, physical harm, hostage-taking, disruptions to business and navigation, and financial losses to shipowners are all possible outcomes of these activities.

According to the International Maritime Organization, 84 acts of piracy were registered worldwide between 2018 and 2019.

At the moment, India lacks legal legislation regarding marine piracy.

To prosecute pirates in the past, Articles of the Indian Penal Code, 1860 (IPC) pertaining to armed robbery and the admiralty jurisdiction of particular Courts were used.

Also read: What is the difference between an Article and a Section?

India’s sovereignty, on the other hand, is limited to its territorial waters (12 nautical miles from the coastline).

Piratical activities performed by a foreigner outside of India’s territorial waters are not punishable under the IPC.

The Mumbai High Court, for example, discharged the suspects in the Alondra Rainbow case (1999) on the grounds that India lacked jurisdiction to try them.

In 1995, India adopted the United Nations Convention on the Law of the Sea (UNCLOS), which establishes a unified worldwide legal framework for combating piracy.

As a result, in April 2012, the Piracy Bill, 2012 was introduced in the Lok Sabha. With the dissolution of the 15th Lok Sabha, the 2012 Bill became void.

The Anti-Maritime Piracy Bill, 2019, was tabled in the Lok Sabha on December 9, 2019, and has been submitted to the Standing Committee on External Affairs for further review.

Also read: What is the process of passing a Bill in Parliament and State Legislature under Article 196 of the Indian Constitution?

Key Features

• The Bill is for the elimination of maritime piracy as well as the punishment of those who conduct piracy-related offences.
• It will extend to all areas of the sea adjacent to and beyond India’s Exclusive Economic Zone, i.e., exceeding 200 nautical miles from the coast.

Offences and Penalties

• If the act of piracy causes or seeks to cause death, it will be penalized by: I life imprisonment; or (ii) death. An attempt to commit, aid, support, or counsel piracy will result in a maximum sentence of 14 years in jail and a fine. Participating in, organizing, or leading others to join in piracy will also result in a fine and a sentence of up to 14 years in jail.
• Extraditable offences will be considered. This means that the accused can be extradited to any country with whom India has signed an extradition pact for prosecution.

In the absence of such treaties, crimes will be extradited based on reciprocity between countries.

Jurisdiction of the Courts

• Sessions Courts may be designated as Designated Courts by the National Government, in collaboration with the Chief Justice of the respective High Court. The Designated Court will hear cases involving: I a person in the custody of the Indian Navy or Coast Guard, regardless of nationality; (ii) an Indian citizen, a foreign national resident in India, or a stateless person.

Furthermore, the Court has the authority to try someone even if they are not physically present in the courtroom.

• The Court will not have jurisdiction over offences committed aboard a foreign ship unless I the ship’s nation of origin, (ii) the ship’s owner, or (iii) any other person on the ship requests intervention.
• The Court will not have jurisdiction over warships or government-owned ships that are used for non-commercial activities.

Also read: Jurisdiction of Courts: Where can you file a suit?

KEY ISSUES AND ANALYSIS

• Piracy is punishable by death.
• The mandatory death penalty has been declared unlawful.
• According to the bill, if a person causes or attempts to cause death while committing piracy, he will be sentenced to death. The Supreme Court has found that a mandatory death punishment for a crime violates the Constitution’s Articles 14 and 21. The Supreme Court has ruled that a provision imposing a mandatory death punishment is arbitrary and unreasonable because it fails to consider the facts and circumstances of each case and restricts courts the ability to exercise their discretion in deciding whether to impose the death penalty.
• Parliament, on the other hand, has approved legislation mandating the death sentence.
• The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act), the Suppression of Unlawful Acts Against Maritime Navigation and Fixed Platforms on the Continental Shelf Act, 2002, and the Anti-Hijacking Act, 2016, are just a few examples.
• It’s worth noting that a Supreme Court case challenging the SC/ST Act’s obligatory death punishment is now underway.
• The United Nations Convention on the Law of the Sea is ratified by this bill (UNCLOS).
• Other countries that have ratified the UNCLOS and established comparable legislation to combat maritime piracy, such as the United States of America, Kenya, Australia, Italy, and Sri Lanka, do not have a mandatory death sentence.
• It’s worth noting that 1860 attempted murder carries a maximum sentence of life in jail under the Indian Penal Code (if hurt is caused).
• This bill establishes a compulsory death sentence for pirate attempts that result in death.

Certain actions may fall under different offences and have differing penalties

The Bill defines piracy as:

1. Any illegal act of violence, detention, or destruction against a ship, aircraft, person, or property;
2. Encouraging or willfully supporting such acts; or
3. Voluntarily taking part in a pirate ship’s activity.

Any individual who commits piracy will face the following penalties: I life imprisonment; or (ii) death sentence if the piracy causes or attempts to cause death.

If a person supports, assists, participates, organizes, or directs another person to participate in an act of piracy, another Article in the Bill provides for up to 14 years in jail and a fine. Both clauses appear to have comparable offences. Its unclear which sanctions will be imposed.

Person A, for example, instructs person B to cause damage to a ship on the high seas.

Person A could be accused in one of two ways:

1. Committing an act of piracy by persuading others to do so, and therefore facing life imprisonment or death; or
2. ordering another person to participate in an act of piracy, and facing up to 14 years in jail and a fine.

Similarly, the terms ‘committing an act of piracy’ and ‘engaging in an act of piracy’ may have the same meaning.

Intentionally facilitating piracy or freely participating in the functioning of a pirate ship are both examples of assisting and helping piracy (covered in the definition of piracy).

It’s worth noting that the United Nations guidelines on international law on piracy (2011) state that, in addition to criminalizing direct piracy, all modes of participation in the offence, such as organizing, instigating, aiding and abetting, facilitating, and counselling, should be criminalized as well.

This is to combat any type of organized crime, because not all criminals are directly involved in the act itself.

Even while the definition of piracy allows for prosecution of such crimes, the guidelines note that many countries may need to explicitly state these in their domestic law to establish a legal basis for prosecution.

Geographical applicability of the Bill

The Bill’s Statement of Objects and Reasons states that piracy has been on the rise, especially within India’s Exclusive Economic Zone (EEZ).

The EEZ is defined as the area between 12 and 200 nautical miles off the coast of India.

The Bill covers all areas of the sea adjacent to and beyond India’s Exclusive Economic Zone.

As a result, it will apply to the high seas, which are defined as the waters beyond 200 nautical miles from India’s shore.

The debate is whether the Bill should cover the EEZ as well.

India’s sovereignty extends to its territorial seas (up to 12 nautical miles from the coast), which means that all of the country’s domestic laws apply in this area.

Because India lacks a local law on marine piracy, prosecuting pirates who are arrested outside of their territorial waters is difficult.

This is something that the bill aims to change. In the EEZ, India has restricted privileges (such as the rights to explore, exploit, and manage natural resources).

Currently, the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and Fixed Platforms on the Continental Shelf Act (SUA Act) of 2002 covers specific acts of piracy that occur in the EEZ (such as acts of violence against a ship and ship seizure).

The SUA Act of 2002, however, may not cover all acts of piracy as defined by UNCLOS.

A theft that does not affect the safety of a ship in the EEZ, for example, is not covered by the SUA Act, 2002.

However, under UNCLOS and this Bill, this would be considered piracy.

CONCLUSION

The majority of Indian trade is based on ships, therefore having a distinct legislation that specifically addresses piracy is critical. The lack of just rules endangers not only the maritime trade’s security, but also the lives of Indians who rely heavily on marine transit for their livelihood.

Also read: Analysis: Marine Aids to Navigation Act, 2021 & International Court of Justice and its Jurisdiction

 

Edited By: Advocate Komal Sharma, Publishing Editor at Law Insider

References:

The Anti-Maritime Piracy Bill, 2019

Anti-Maritime Piracy Bill introduced in Lok Sabha

Anti-Maritime Piracy Bill introduced in Lok Sabha