NMF Exclusive : Draft Indian Piracy Bill – Preliminary Assessment by Raghevendra Mishra

Authors: Raghavendra Mishra

The draft Indian Piracy Bill 2012 tabled in the Parliament on 24 Apr 12 is considered as a step in the right direction and this commentary seeks to provide a preliminary analysis of this draft legislation. 

The reasons for formulating this bill are 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. In the absence of a dedicated legal mechanism; these pirates were charged under the Indian Penal Code(IPC) with Trespassing(Sections 441 & 447), Waging War Against the Country(Section 121), Attempt to Murder(Section 307) and Armed Robbery(Sections 397 & 398) and other laws such as Foreigners and Passport Act. Besides these, certain provisos of the archaic British Admiralty Law were also invoked. An attempt to repeal this vintage Admiralty Law with was initiated in 2005 through a draft Indian Admiralty Bill without seeing the light of the day.  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. The resolution also called for cooperation with the International Maritime Organization(IMO) by adopting appropriate procedures including adoption of national legislation.

This legal void is not unique to India and a host of nations including some of the major maritime powers, are still grappling with inherent intricacies, either to formulate an anti-piracy law or to improve upon the existing legislation to address the contemporary Somali scenario. The two major issues under current discussion are; the appropriate definition of ‘piracy’ itself and the likely ripple effect of expanded national jurisdiction beyond the limits of territorial waters, which until now have been considered as the outer limits of the ‘law of the land’.

For a critical analysis, the draft Indian Piracy Bill 2012 needs to be seen through the prism of two major sources of international law. These are, the 1982 United Nations Conventions on the  Laws of the Sea(UNCLOS) Articles 100-107   and 110 as well as the 1988 Suppression of Unlawful Activities(SUA) Convention, Article 3. The relevant portions of these two conventions broadly address aspects such as the definition of piracy and its international ramifications, anti-piracy applicability regime and exceptions, special rights and the guidelines on legal framework.  Whilst being a signatory to both these conventions; India had not passed necessary legislations to make the substance contained in these conventions as laws.

The broad tenets of draft Piracy Bill, 2012 are perceived to be in consonance with the spirit of UNCLOS and SUA conventions in terms of definitions, interpretation, applicability and immunity regime.  A case in point being the definition of piracy as spelt out the draft Indian Piracy Bil is an in toto replication of that contained in the UNCLOS, 1982. The punishment regime ranges from death to an imprisonment term for 14 years, as well as fines depending on the degree of violent content during the act of piracy and the direct or indirect support through abetment or as an accomplice that was provided. The powers of investigation, arrest and prosecution have been vested with the law making and government organs such as the Navy, Coast Guard and the Police. 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.

For rapid disposal of piracy related offences, the draft Bill proposes to set up a dedicated Sessions Court under each High Court through a consultative process with stringent bail provisions.  Crimes related to piracy have been added to the list of extraditable offences and extradition on reciprocity basis is also feasible with other countries in case no formal treaties exist in this regard. 

There are certain distinguishing characteristics that set this draft legislation apart from previous law making processes. The foremost being that this Bill puts the onus of proving the innocence on the accused, instead of the hitherto basic caveat of ‘being innocent until found guilty’. It is also for the first time that the Indian jurisprudence is being extended beyond the territorial waters with particular reference to the Exclusive Economic Zone(EEZ) of India.

This draft Bill seeks to address the ambiguous nationality issues of Somali pirates operating from a dysfunctional territory by including stateless persons under the ambit of the legislation. The second issue that has been dealt with is the ‘two ship dilemma’ when one or more of the crew members directly or indirectly facilitate an act of piracy.

A minor change recommended to the draft relates to the title of the Bill by renaming it either as ‘Maritime’ or ‘Sea’ Piracy Bill since the word piracy has other meanings in contemporary lexicon such as video piracy and such like. The major feature of the draft bill is the extended judicial reach with specific reference to EEZ which may or may not find favour with other nations. Contiguous zones and EEZ for all practical purposes are considered as high seas except for certain environmental, fiscal related purposes and for the use of maritime resources by the coastal state. However, each state would be challenged by this particular issue when attempting to draft or to improve its ant-piracy legislations. 

Dissection by legal luminaries apart, this Bill is considered a welcome move as it seeks to provide the required ‘legal muscle’ and ‘operational freedom’ in the Indian efforts to root out piracy.  This bill may also act as the spur for certain nations that view India as an emerging major player with maritime orientation, for drafting their own laws.