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Wednesday, September 24, 2014

Writ to intervene and expedite release of Indian Seamen held hostages by the Somalian Pirates in the international waters on 29th March, 2010, 2nd March, 2012 and 10th May, 2012 and to frame anti-piracy guidelines - Apex court held that this Court cannot assume the role of the executive to oversee the sensitive issue of coordination with international agencies and bodies for securing release of Indian citizens who are held hostages abroad, when it is shown that the departments of the Government have not only taken cognizance of the problem but also taken, in right earnest, whatever steps could be possible. It is not a case where the State has not shown any concern for its citizens, but where unfortunate situation has come about in spite of serious efforts. at this stage, is that the matter may be periodically reviewed at the appropriate level and a nodal officer may be designated who may continue to coordinate and oversee the efforts on the issue and with whom the families of the victims can also have interaction for getting information or giving suggestions.= WRIT PETITION (C) NO. 536 OF 2012 GAURAV KUMAR BANSAL ... PETITIONER VERSUS UNION OF INDIA & ORS. ... RESPONDENTS = 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41896

 Writ  to intervene and expedite  release  of  Indian  Seamen  held  hostages  by  the
Somalian Pirates in the  international  waters  on  29th  March,  2010,  2nd March, 2012 and 10th May, 2012 and to frame  anti-piracy  guidelines - Apex court held that this  Court  cannot assume the  role  of  the  executive  to  oversee  the  sensitive  issue  of coordination with international agencies and bodies for securing release  of Indian citizens who are held hostages abroad, when  it  is  shown  that  the departments of the Government have not only taken cognizance of the  problem but also taken, in right earnest, whatever steps  could  be  possible.   It is not a case where the State has not shown any concern  for its citizens, but where unfortunate situation has come  about  in  spite  of serious  efforts.   at  this stage, is that the matter may be periodically reviewed  at  the  appropriate level and a nodal officer may be designated who may continue  to  coordinate
and oversee the efforts on the issue and  with  whom  the  families  of  the victims  can  also  have  interaction  for  getting  information  or  giving suggestions.=

These  petitions  seek  directions  to  the  Government  of  India  to
intervene and expedite  release  of  Indian  Seamen  held  hostages  by  the
Somalian Pirates in the  international  waters  on  29th  March,  2010,  2nd
March, 2012 and 10th May, 2012 and to frame  anti-piracy  guidelines.=

Case of the petitioner  is  that  three  merchant  vessels  have  been
hijacked in the high sea and out of the crew members  held  captive  by  the
pirates, eight persons continued to be detained by them.
 It  is  the  duty
of the Government of India to take necessary steps to secure their  release.
Representations have been made to the Government authorities, but  effective
steps have not been taken to secure their release.   Piracy  is  illegal  as
per UN Conventions on the Law of the Sea (UNCLOS).
It  is  the  fundamental
duty of the Member States to cooperate in preventing  incidents  of  piracy.
International Maritime Organisation (IMO) is a  UN  specialised  agency  for
safety of shipping and prevention of marine  pollution  by  ships.
As  per
information available on the website of IMO, armed  pirates  hijacked  cargo
ship “ICEBERG-1” (Flag State Panama) in International Waters of East  Africa
and took 24 crew members (6 are Indians) hostage  and  sailed  the  ship  to
Somali coast on 29th March, 2010, at 9.30 hrs.
On 10th May, 2012,  at  9.23
am, pirates hijacked Tanker Ship “Symrni” (Flag State  Liberia)  at  Arabian
Sea and took 26 crew members        (11  Indians)  hostage.
On  2nd  March,
2012, at 12.19 hrs, Somalian pirates hijacked Chemical Tanker “Royal  Grace”
(Flag Stage Panama) at Arabian Sea and took  hostage  22  crew  members  (17
Indians) and sailed the ship towards coast of Somalia.  Indian  seamen  were
employed through East India Shipping Agency, Mumbai (Report No.5).=

This Court is assigned the role  of  sentinel  on  the  qui  vive  for
protection of rights of citizens and steps  in,  in  exercise  of  power  of
judicial review for protection of Fundamental Rights  of  the  citizens,  if
the State fails to perform its duty.
At the same time,  this  Court  cannot
assume the  role  of  the  executive  to  oversee  the  sensitive  issue  of
coordination with international agencies and bodies for securing release  of
Indian citizens who are held hostages abroad, when  it  is  shown  that  the
departments of the Government have not only taken cognizance of the  problem
but also taken, in right earnest, whatever steps  could  be  possible.
The
issue of coordination at international  level  with  foreign  countries  and
international bodies has to  be  left  to  the  wisdom  of  experts  in  the
Government.  It is not a case where the State has not shown any concern  for
its citizens, but where unfortunate situation has come  about  in  spite  of
serious  efforts.   
Handling  of  the  situation  requires   expertise   and
continuous efforts.  It has not been  pointed  out  as  to  what  particular
direction can be issued in the circumstances.
While safety  and  protection
of the lives and liberty of Indian citizens is  also  the  concern  of  this
Court, the issue has to be dealt with at the level of the  executive.   From
the affidavit filed on behalf of the Union of  India,  it  is  evident  that
steps have been taken at various levels, though without complete success.

      12.   It does appear that pirates operating from Somalia  have  become
serious menace to the safety  of  maritime  traffic  in  Gulf  of  Aden  and
Western Arabian Sea and three incidents involving Indian citizens  are  part
of series of such events.
Apparent cause is lack of  effective  Government,
as pointed out in the affidavit filed on behalf of Government of India.   It
appears that recently there is some change on  account  of  which  situation
might improve.  Combating piracy is imperative for safety  of  seafarers  as
well as successful world trade.
The issue is of international  concern  and
as already noted, it is receiving the attention of Government  of  India  at
highest level.  We do  hope  the  Government  of  India  will  continue  its
efforts for protection of affected citizens.

13.   In these circumstances, only direction which can be  issued,  at  this
stage, is that the matter may be periodically reviewed  at  the  appropriate
level and a nodal officer may be designated who may continue  to  coordinate
and oversee the efforts on the issue and  with  whom  the  families  of  the
victims  can  also  have  interaction  for  getting  information  or  giving
suggestions.

14.   With the above observations and  direction,  the  Writ  Petitions  are
disposed of.


  2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41896  
 
                                                         REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION

                      WRIT PETITION (C) NO. 536 OF 2012

GAURAV KUMAR BANSAL                                ...   PETITIONER

VERSUS

UNION OF INDIA & ORS.                   ...   RESPONDENTS

                                   W I T H
                      WRIT PETITION (C) NO. 26 OF 2014

RAJNI SINGH                                        ...   PETITIONER

VERSUS

UNION OF INDIA & ORS.                   ...   RESPONDENTS


                               J U D G M E N T

Adarsh Kumar Goel, J.

1.    These  petitions  seek  directions  to  the  Government  of  India  to
intervene and expedite  release  of  Indian  Seamen  held  hostages  by  the
Somalian Pirates in the  international  waters  on  29th  March,  2010,  2nd
March, 2012 and 10th May, 2012 and to frame  anti-piracy  guidelines.   Writ
Petition (C) No. 536/2012 described as PIL, is  claimed  to  be  by  way  of
legal aid to the captivated seamen at  the  instance  of  relatives  of  the
victims, while Writ Petition (C) No. 26/2014, also  described  as  PIL,  has
been filed by the wife of  one  of  the  captivated  seamen.   Thus,  though
described  as  PIL,  both  the  petitions  seek  enforcement  of  rights  of
individual seamen who are held hostages at high sea.

2.    Case of the petitioner  is  that  three  merchant  vessels  have  been
hijacked in the high sea and out of the crew members  held  captive  by  the
pirates, eight persons continued to be detained by them.   It  is  the  duty
of the Government of India to take necessary steps to secure their  release.
Representations have been made to the Government authorities, but  effective
steps have not been taken to secure their release.   Piracy  is  illegal  as
per UN Conventions on the Law of the Sea (UNCLOS).  It  is  the  fundamental
duty of the Member States to cooperate in preventing  incidents  of  piracy.
International Maritime Organisation (IMO) is a  UN  specialised  agency  for
safety of shipping and prevention of marine  pollution  by  ships.   As  per
information available on the website of IMO, armed  pirates  hijacked  cargo
ship “ICEBERG-1” (Flag State Panama) in International Waters of East  Africa
and took 24 crew members (6 are Indians) hostage  and  sailed  the  ship  to
Somali coast on 29th March, 2010, at 9.30 hrs.  On 10th May, 2012,  at  9.23
am, pirates hijacked Tanker Ship “Symrni” (Flag State  Liberia)  at  Arabian
Sea and took 26 crew members        (11  Indians)  hostage.  On  2nd  March,
2012, at 12.19 hrs, Somalian pirates hijacked Chemical Tanker “Royal  Grace”
(Flag Stage Panama) at Arabian Sea and took  hostage  22  crew  members  (17
Indians) and sailed the ship towards coast of Somalia.  Indian  seamen  were
employed through East India Shipping Agency, Mumbai (Report No.5).

3.    It has further stated by the petitioner that  the  Admiralty  Offences
(Colonial)  Act,  1849  provided  for  prosecution  for  offences  at   sea.
Suppression of unlawful acts against  Safety  of  Maritime,  Navigation  and
Fixed Platform on Continental Shell Act  (hereinafter  referred  to  as  SUA
Act) 2002 has been enacted by Indian Parliament and contains provisions  for
dealing with the illegal activities which endanger the  safety  of  maritime
navigation and the safety of persons and property  on  the  sea.   Union  of
India has failed to  protect  the  life  and  liberty  of  concerned  Indian
citizens in spite of being approached for the purpose.

4.    On 14th February, 2014, time was given to the learned counsel for  the
Union of India to file an affidavit setting out the protocol, procedure  and
process followed by the Government of India  in  matters  like  the  present
where an Indian national is missing either on the  high  seas  or  elsewhere
and also to set out the details and efforts made in  locating  and  rescuing
one of the missing persons.  Accordingly, affidavit has been  filed  on  7th
March, 2014 by the Under Secretary,  Ministry  of  Shipping,  Government  of
India, stating that since the year 2008, the pirates operating from  Somalia
have become a serious menace for the safety of maritime traffic as  well  as
the crew members in the gulf of Aden  and  Western  Arabian  Sea  and  as  a
consequence thereof, Indian seafarers have also suffered  at  the  hands  of
the said pirates.  Ten  Indian  seafarers  are  held  captive  by  the  said
pirates, seven of whom are ex-Asphalt Venture, one ex-MT Albedo,  while  the
whereabouts of one Dheeraj  Tiwari  ex-MY  Iceberg  and  one  Rajbhar  Rajoo
Prasad ex-MT Albedo are not known.  MV Asphalt Venture was hijacked on  29th
September, 2010 with fifteen Indian crew members on  board.   The  ship  was
released on 16th April, 2011 with eight Indian crew members and  seven  crew
members were held back as  hostages  and  they  continue  to  be  under  the
custody of the pirates at unknown location.  MV Albedo was hijacked on  26th
November, 2010 with crew members which included  two  Indians;  one  of  the
Indian crew members died.  The said vessel sunk  off  on  7th  -  8th  July,
2013, but one Indian seafarer is reported  to  be  safe.   The  Indian  crew
members were employed  by  the  foreign  owned  registered  vessels  through
recruitment and placement service provider at  Mumbai.   The  Government  of
India has urged the ship owners and employers to initiate measures  for  the
release of Indian  seafarers  and  also  raised  the  subject  of  continued
captivity of Indian seafarers during the meetings held under the  IMO    and
Contract Group on Piracy off the Coast of Somalia  (CGPCS).   In  case    of
foreign owned and foreign  registered  ships,  the  Government  is  severely
constrained to take measures    for release   of    seafarers  held  captive
by Somali pirates. It has been further stated in the above  affidavit   that
Government of India has put in place an institutional structure for   crisis
management to ensure advance preparedness  and  quick  response  to  counter
such unlawful acts.  This set up  has  the  Cabinet  Committee  on  Security
(CCS) for taking major policy decisions,  a  Committee  of  Secretaries  for
Anti Piracy and Hijack at Sea (COSAPH), chaired by Cabinet  Secretary  which
has the executive responsibility for hands on crisis management.  The  issue
of captivity of Indian seafarers and their release has been taken up in  the
meetings of Inter-Ministerial Group of Ministers (IMG), a body reporting  to
COSAPH set up under the Ministry of Shipping and headed  by  the  Additional
Secretary, Ministry of Shipping, to address issues of hijacking of  merchant
ships involving Indian seafarers.  The  IMG  has  members  representing  all
concerned Ministries and agencies like  the  Ministry  of  External  Affairs
(MEA), the Ministry of Defence (MOD), the Ministry of  Home  Affairs  (MHA),
Intelligence Bureau (IB),  the  Cabinet  Secretariat,  and  the  Directorate
General of  Shipping  (DGS).   This  Group  of  Officers  has  been  meeting
regularly to appraise the developing situations and review the  efforts  and
measures being taken by the various agencies within  their  concerned  areas
of mandated responsibilities for securing the  release  of  Indian  hostages
who have been in captivity of Somalian pirates.  Respondent  No.2,  Ministry
of External Affairs, as part of this IMG, has been closely co-ordinating  in
securing early release of the Indian hostages of MV Asphalt Venture  and  MV
Albedo.  The Government of India has consistently  taken  up  the  issue  of
Indian seafarers of MV Asphalt Venture and MV  Albedo,  including  with  the
Somali Ambassador in New Delhi.  Separately, the High  Commission  of  India
in  Nairobi,  Kenya,  which  is  concurrently  accredited  to  Somalia,  has
consistently taken up the  issue  of  the  Indian  hostages  of  MV  Asphlat
Venture and MV Albedo with the authorities in Somalia since  the  occurrence
of the incidents.  Recently, High Commissioner of India in Nairobi  wrote  a
letter to the President of the Puntland State of Somalia  on  14th  October,
2013 seeking information on the Indian hostages of MV  Asphalt  Venture  and
MV Albedo. However, no definite  response  has  been  forthcoming  from  the
Somali Government in this regard.  Again,  High  Commissioner  of  India  in
Nairobi visited Mogadishu from 21st - 22nd January, 2014 and met the  Somali
President, Prime Minister  and  Principal  Secretary,  Foreign  Affairs  and
International Cooperation, and handed over the list of  Indian  hostages  of
MV  Asphalt  Venture  and  MV  Albedo  and  requested  for   providing   any
information on them  and  for  assistance  in  securing  release  of  Indian
seafarers in the custody of the Somali pirates.  However,  no  response  has
been received in this regard so far.

5.    It is further pointed out in the affidavit that at  the  International
level,  pursuant  to  a  United  Nations  Security  Council  resolution,   a
‘Contract Group on Piracy off the Coast of Somalia’ (CGPCS) was  established
in January, 2009 to coordinate  anti-piracy  efforts  of  the  International
Community.  India is a founder-member  of  the  CGPCS  and  has  been  fully
engaged in the efforts to  share  information,  coordinate  actions  of  the
navies in combating piracy in the Gulf of Aden, raising public and  merchant
marine awareness and examining legal  issues  with  respect  to  apprehended
pirates.  It has been further submitted that India chaired  the  CGPCS  from
September, 2012 to December, 2012 including the 13th  Plenary  Session  held
in New York on 11th December, 2012.  India, during  its  Presidency  of  the
Security Council in November, 2012, organized an open debate on the  subject
of piracy on 19th November, 2012 following which  a  Presidential  statement
was adopted by the  Council  high-lighting  the  cause  of  the  welfare  of
seafarers.  Respondent No.2 is also  coordinating  with  the  UN  and  other
international bodies like the Contract Group on  Piracy  off  the  Coast  of
Somalia (CGPCS) to seek coordinated solutions to the  problem  of  combating
piracy off the coast of Somalia.  India has called for  better  coordination
of international efforts for escorting merchant ships and patrolling in  the
region, preferably under the aegis of the United  Nation.   India  has  also
become a member of International Contact Group (ICG) on Somalia in 2013.

            It has been submitted that  representative  of  respondent  No.2
participated in the 15th Plenary Session of Contact Group on Piracy off  the
Coast of Somali (CGPCS) and Anti Piracy Week  held  in  Djibouti  from  10th
-15th November, 2013.  During the visit, key contacts  were  made  with  all
the stake holders, including NGOs dealing with piracy  and  hostage  crisis,
UNODC officials, officials from Somalia and  its  entities,  i.e.,  Puntland
and  Somaliland.   The  delegation  also  sought  assistance  of   all   the
stakeholders in securing early release of Indian  seafarers  of  MV  Asphalt
Venture and MV Albedo.

India is a signatory to the United Nations Convention  of  the  Law  of  Sea
(UNCLOS), 1982, which defines piracy and pirates acts (Article 101).   India
does not presently have a separate legislation  on  piracy.   Therefore,  it
was  decided  by  the  Government  to  prepare  a   comprehensive   domestic
legislation on piracy in line with the UNCLOS definition of ‘piracy’ at  the
earliest so as to ensure effective prosecution of the pirates and to act  as
a deterrent to  pirates.   For  this  purpose,  the  Piracy  Bill  2012  was
prepared by the  MEA  in  consultation  with  the  Ministries  of  Shipping,
Defence, Home Affairs and Law & Justice and tabled,  with  the  approval  of
the Cabinet, in the Parliament.  Piracy Bill  2012  was  listed  in  earlier
sessions of Parliament but,  due  to  paucity  of  time,  it  could  not  be
considered.  It is likely  to  be  considered  in  the  ongoing  session  of
Parliament for which External Affairs Minister has already issued a notice.

            India has been providing assistance to Somalia in  its  capacity
building to enable it in combating piracy more effectively.  It is  not  out
of place to mention that India  has  contributed  US  $  3  Million  towards
augmentation of the African Union Mission in Somalia during 2011-2012.

            Somalia continues to be impacted by  Civil  War,  terrorism  and
the resultant instability and the State hitherto did not have  full  control
over areas in Somalia from where  the  pirates  operate.   The  new  Federal
Parliament was inaugurated on  20th  August,  2012  ending  the  mandate  of
Somalia’s  eight  year  old  Transitional  Federal  Government.    The   new
political  dispensation  in  Somalia  is  in  the  process  of  taking  over
effective  control  and,  therefore,  their  role  in  securing  release  of
seafarers under the custody of pirates is expected to gradually increase.

            The subject of ensuring the safety and  security  of  seafarers,
sailing on the high seas, is being seriously taken up by the  IMO  and  also
at the meetings of CGPCS.  Several  measures  have  been  recommended  which
include, following Best Management Practices (BMP-version 4) and  deployment
of armed guards on board merchant ships.  Prudent ship  owners  follow  such
recommendations which has resulted  in  no  cases  of  hijacking  by  Somali
pirates  taking  place  during  the  last  almost   one   and   half   year.
Informatively, in the cases of MT  Asphalt  Venture  and  MV  Albedo,  armed
guards were not deployed by their respective owners.

      All the concerns of the  families  of  Indian  crew  held  captive  by
pirates  are  duly  transmitted  to  the  concerned  agencies  through   the
deliberations at the meetings of IMGO.  The IMGO also reviews from  time  to
time the possibility of offering financial assistance  to  the  families  of
affected seafarers by way of granting ex-gratia payments wherever  the  ship
owners/employers abdicate their responsibilities in order to  somewhat  ease
the financial burden on the families of the captive  seafarers.   Respondent
No.3 had granted ex-gratia payments to the Indian families of MV Albedo,  in
December, 2012.  Further, the families of crew of MT  Asphalt  Venture  have
been paid their wages till 2013 under the orders of the Hon’ble  High  Court
of Bombay.

            The seamen held hostages in March, 2010 have not  been  released
till date is not correct as the MV Iceberg-I was  captured  on  29th  March,
2010 and was subsequently released on 23rd December,  2012  along  with  all
the 22 crew of different nationalities  except  Sh.  Dheeraj  Tiwari,  Chief
Officer whose whereabouts are  not  yet  known  and  presumed  to  be  still
missing/unaccounted for since 8th  September,  2011,  during  the  captivity
period.  No other Indian national seafarer of MV Iceberg-I is  currently  in
Somali pirate’s custody since March, 2010 as contended  by  the  petitioner.
The remnant eight  Indian  crew  that  continue  to  be  in  Somali  pirates
captivity till date, are seven Indian crew ex-MT Asphalt Venture  from  29th
September, 2010 and one Indian crew of MV Albedo.

6.    Counter affidavit has also been filed  by  the  Ministry  of  External
Affairs with almost similar stand.  It may be worthwhile  to  reproduce  the
relevant statement made in the said affidavit:-

“It is submitted that India has been providing assistance to Somalia in  its
capacity building to enable it in combating piracy more effectively.  It  is
further  mention  that  India  has  contributed  US$   3   Million   towards
augmentation of the African Union Mission in Somalia  during  2011-2012.  It
is further submitted that Somalia continues to be  impacted  by  Civil  War,
terrorism and the resultant instability and the State hitherto did not  have
full control over areas in Somalis from where the pirates operate.  The  new
Federal Parliament was inaugurated  on  20.08.2012  ending  the  mandate  of
Somalia’s  eight  year  old  Transitional  Federal  Government.    The   new
political  dispensation  in  Somalia  is  in  the  process  of  taking  over
effective  control  and  therefore,  their  role  in  securing  release   of
seafarers under the custody of pirates is expected to  gradually  increase.”



7.    In the affidavit filed on 11th April, 2013 in Writ Petition  (C)   No.
536 of 2012 steps taken in the matter have been stated as follows:-


      “4.   It is respectfully submitted that the Government has set  up  an
Inter-Ministerial Group of Officers (hereinafter referred to as  the  “IMG”)
headed by the Additional Secretary to the Ministry of  Shipping  to  address
issues  of  hijacking  of  merchant  ships   involving   Indian   seafarers.
Furthermore, the IMG has members representing all concerned  Ministries  and
agencies and meets regularly to deal with the situation of  Indian  hostages
who are in captivity of Somali pirates.


      5.    It is further submitted respectfully that Ministry  of  External
Affairs and the Indian Missions abroad continuously seek  the  help  of  the
concerned foreign governments to liaise with ship owners and  persuade  them
to secure early release of Indian hostages held captive by Somali pirates.


6.    It is respectfully submitted that Government’s relentless  efforts  in
securing release of Indian hostages on board  the  three  merchant  vessels,
namely, MV Iceberg, MT Smyrni and MT Royal Grace – mentioned  in  this  Writ
Petition, have yielded significant results in the recent past  that  may  be
summed up as following”


(i)   22 seafarers, including 5 Indian Seamen on board MV Iceberg,  hijacked
on  29.03.2010,  were  rescued  by  the  Puntland  Maritime   Police   Force
(hereinafter referred to as the “PMPF”) in a humanitarian  rescue  operation
conducted on 23.12.2012 and subsequently arrived  in  India  safely.   These
seamen were held hostage on board MV Iceberg since March,  2010.   Only  one
Indian Seafarer on board MV  Iceberg  i.e.  Shri  Dheeraj  Tiwari  is  still
missing as he was not found  onboard  at  the  time  of  the  aforementioned
rescue operation.  The Indian Government is making endeavours  to  ascertain
his whereabouts.


(ii)  It is respectfully submitted that two vessels namely  MT  Royal  Grace
and MT Smyrni were hijacked on 02.03.2012 and 10.05.2012  respectively.   It
is  further  submitted  that  MT  Royal  Grace  and  MT  Smyrni  along  with
multinational crew, including 28 Indians, were released  by  Somali  pirates
on March 8/9, 2013.  The two ships reached Salalah port in Oman on March  13
and March 14, 2013 respectively.


7.    It is respectfully submitted that the 17 Indian  crew  members  of  MT
Royal Grace and 11 Indian  crew  members  of  MT  Smyrni  were  received  at
Salalah by officials from our Embassy  and  were  extended  all  assistance.
Their travel to India was facilitated by our Mission.  11  crew  members  of
MT Smyrni safely arrived in India on March 18, 2012.  16 of  the  17  Indian
crew members of MT Royal Grace have safely arrived in India till  date.   At
present, only 1 of the Indian crew members of MT Royal  Grace  (Captain)  is
on board along with 2 Nigerians, 1 Pakistani and 1  Bangladeshi  as  minimum
manning requirement for the ship.  He is expected to reach  India  once  the
replacement crew is arranged by the ship owner.


8.    It is respectfully submitted that the  Ministry  of  External  Affairs
(hereinafter referred to as the “MEA”), as part of the Government of  India,
has been making all efforts to deal with piracy  and  hostage  crisis.   The
piracy issue is also taken up during all high level  interactions  with  the
Government of Somalia.


9.     It  is  respectfully  submitted  that  at  the  International  level,
pursuant to a United Nations Security Council resolution, a ‘Contract  Group
on Piracy off  the  Coast  of  Somalia’  (hereinafter  referred  to  as  the
“CGPCS”) was established in January, 2009 to coordinate anti-piracy  efforts
of the International Community.  It is further respectfully  submitted  that
India is a founder-member of the CGPCS and has been  fully  engaged  in  the
efforts to share information, coordinate  actions  of  navies  in  combating
piracy in the Gulf of Aden, raising public  and  merchant  marine  awareness
and examining legal issues with  respect  to  apprehended  pirates.   It  is
further submitted that India chaired  the  CGPCS  from  September,  2012  to
December, 2012 including the 13th  Plenary  Session  held  in  New  York  on
11.12.2012.  The Communique adopted by the  CGPCS,  inter-alia,  highlighted
the need for  greater  International  Cooperation  for  securing  the  early
release of hostages and their Welfare.


10.   It is respectfully submitted that India during its Presidency  of  the
Security Council in November, 2012 organized an open debate on  the  subject
of piracy  on  19.11.2012  following  which  a  Presidential  Statement  was
adopted by the Council highlighting the cause of the welfare of seafarers.


11.   It is respectfully submitted that India is a signatory to  the  United
Nations Convention of the Law of Sea, 1982 (hereinafter referred to  as  the
“UNCLOS”) which defines  piracy  and  pirate  acts  (Article  101).   It  is
further submitted that India does not presently have a separate  legislation
on piracy.  Therefore, it  was  decided  by  the  Government  to  prepare  a
comprehensive domestic  legislation  on  piracy  in  line  with  the  UNCLOS
definition  of  ‘piracy’  at  the  earliest  so  as  to   ensure   effective
prosecution of the pirates and to act as a deterrent to pirates.   For  this
purpose, the Piracy Bill 2012 was prepared by the MEA in  consultation  with
the Ministries of Shipping, Defence, Home Affairs  and  Law  &  Justice  and
tabled with the approval of the Cabinet in the Lok Sabha on 24  April  2012.
The Bill was referred to the Standing Committee on  External  Affairs  which
presented its report  to  the  Lok  Sabha  on  14  August  2012.   Based  on
recommendations  made  by  the  Standing  Committee  and  subsequent  inter-
ministerial consultations held with  all  concerned  Ministries/Departments,
Official Amendments to the Piracy Bill, 2012 were approved by Cabinet on  18
March, 2013.


12.   It is submitted that, India has been providing assistance  to  Somalia
in its capacity building to enable it in combating piracy more  effectively.
 It is not out of place to mention that India has contributed US$ 3  Million
towards augmentation of the African Union Mission in  Somalia  during  2011-
2012.


13.   It is further submitted that the MEA and the  Indian  Missions  abroad
have played an important role in release of  Indian  Hostages  on  board  MV
Suez, MV Fairchem Bogey, MV Savina Caylyn, MT Smyrni,  MT  Royal  Grace  and
others.


14.   It is respectfully submitted that Somalis continues to be impacted  by
Civil War, terrorism and the resultant instability and  the  State  hitherto
did not have full control over areas  in  Somalia  from  where  the  pirates
operate.  The new Federal Parliament was inaugurated  on  20.08.2012  ending
the mandate of Somalia’s eight year  old  Transitional  Federal  Government.
The new political dispensation in Somalia is in the process of  taking  over
effective  control  and  therefore,  their  role  in  securing  release   of
seafarers under the custody of pirates is expected to gradually increase.”


8.    We have heard learned counsel for the parties.
9.    Learned counsel for the  petitioner  submitted  that  this  Court  may
issue directions to the Government of India to take up  the  matter  at  the
international level and to secure the release of Indian  citizens  who  have
been held captive by the Pirates.  Learned counsel for the Union  of  India,
however, submitted that all necessary steps  have  already  been  taken  and
will continue to be taken as the Government of India is concerned  with  the
issue of safety of its citizens and in the  circumstances  no  direction  is
called for.

10.   There is no manner of doubt that a welfare State is protector of  life
and liberty of its citizens not only within the  country  but  also  outside
the country in certain situations.  Concept  of  parens  patriae  recognises
the State as protector of its citizens as parent particularly when  citizens
are  not  in  a  position  to  protect  themselves.   The  Preamble  to  the
Constitution, read with Directive Principles, under Articles 38, 39 and  39A
enjoins the State to take all protective measures to which a Social  Welfare
State is committed.   Interestingly, this doctrine has  been  recognised  in
India even before the Constitution  came  into  force.   Referring  to  this
aspect, this Court, in Charanlal Sahu vs.  Union  of  India[1]  observed  as
under:-

“35.  ......Thus the position is that  according  to  Indian  concept parens
patriae doctrine recognized King as the protector of  all  citizens  and  as
parent. In Budhakaran Chankhani v. Thakur Prasad Shah AIR 1942 Cal.  311 the
position was explained by the  Calcutta  High  Court  at  page  318  of  the
report. The same position was reiterated by the said  High  Court  in  Banku
Behary Mondal v. Banku Behary hazra at page 205 of the report. The  position
was further elaborated and explained by  the  Madras  High  Court  in  Medai
Dalavoi T. Kumaraswami Mudaliar v. Meddi Dalavoi Rajammal  at  page  567  of
the   report.   This   Court   also   recognized   the   concept   of parens
patriae relying on the  observations  of  Dr.  Mukherjea  aforesaid  in  Ram
Saroop v. S.P. Sahi at pages  598  and  599.  In  the  "Words  and  Phrases"
Permanent edition, Vol. 35 at page 99, it is stated  that parens  patriae is
the inherent power and authority of a Legislature to provide  protection  to
the person and property of persons non sui  juris, such  as  minor,  insane,
and incompetent persons,  but  the  words "parens  patriae" meaning  thereby
'the father of the country', were applied originally to  the  King  and  are
used to  designate  the  State  referring  to   its   sovereign   power   of
guardianship over  persons  under  disability. (Emphasis  supplied).  Parens
patriae jurisdiction, it has been explained, is the right of  the  sovereign
and imposes a duty on sovereign, in  public  interest,  to  protect  persons
under disability who have no rightful  protector.  The  connotation  of  the
term "parens patriae" differs from country  to  country,  for  instance,  in
England it is the King, in America it is the people, etc. The Government  is
within its  duty  to  protect  and  to  control  persons  under  disability.
Conceptually, the parens patriae theory is the obligation of  the  State  to
protect and takes  into  custody  the  rights  and  the  privileges  of  its
citizens  for  discharging  its  obligations.  Our  Constitution  makes   it
imperative  for  the  State  to  secure  to  all  its  citizens  the  rights
guaranteed by the Constitution and where the citizens are not in a  position
to assert and secure their rights, the State  must  come  into  picture  and
protect and fight for the rights  of  the  citizens.  The  Preamble  to  the
Constitution, read with the Directive Principles, Articles 38,  39  and  39A
enjoin the State to take up these responsibilities.  It  is  the  protective
measure to which the social welfare state is committed. It is necessary  for
the  State  to  ensure  the  fundamental  rights  in  conjunction  with  the
Directive  Principles  of  State  Policy  to   effectively   discharge   its
obligation and for this purpose, if necessary, to deprive  some  rights  and
privileges of the individual victims or their heirs to protect their  rights
better and secure these further......”


11.   This Court is assigned the role  of  sentinel  on  the  qui  vive  for
protection of rights of citizens and steps  in,  in  exercise  of  power  of
judicial review for protection of Fundamental Rights  of  the  citizens,  if
the State fails to perform its duty.  At the same time,  this  Court  cannot
assume the  role  of  the  executive  to  oversee  the  sensitive  issue  of
coordination with international agencies and bodies for securing release  of
Indian citizens who are held hostages abroad, when  it  is  shown  that  the
departments of the Government have not only taken cognizance of the  problem
but also taken, in right earnest, whatever steps  could  be  possible.   The
issue of coordination at international  level  with  foreign  countries  and
international bodies has to  be  left  to  the  wisdom  of  experts  in  the
Government.  It is not a case where the State has not shown any concern  for
its citizens, but where unfortunate situation has come  about  in  spite  of
serious  efforts.   Handling  of  the  situation  requires   expertise   and
continuous efforts.  It has not been  pointed  out  as  to  what  particular
direction can be issued in the circumstances.  While safety  and  protection
of the lives and liberty of Indian citizens is  also  the  concern  of  this
Court, the issue has to be dealt with at the level of the  executive.   From
the affidavit filed on behalf of the Union of  India,  it  is  evident  that
steps have been taken at various levels, though without complete success.

      12.   It does appear that pirates operating from Somalia  have  become
serious menace to the safety  of  maritime  traffic  in  Gulf  of  Aden  and
Western Arabian Sea and three incidents involving Indian citizens  are  part
of series of such events.  Apparent cause is lack of  effective  Government,
as pointed out in the affidavit filed on behalf of Government of India.   It
appears that recently there is some change on  account  of  which  situation
might improve.  Combating piracy is imperative for safety  of  seafarers  as
well as successful world trade.  The issue is of international  concern  and
as already noted, it is receiving the attention of Government  of  India  at
highest level.  We do  hope  the  Government  of  India  will  continue  its
efforts for protection of affected citizens.

13.   In these circumstances, only direction which can be  issued,  at  this
stage, is that the matter may be periodically reviewed  at  the  appropriate
level and a nodal officer may be designated who may continue  to  coordinate
and oversee the efforts on the issue and  with  whom  the  families  of  the
victims  can  also  have  interaction  for  getting  information  or  giving
suggestions.

14.   With the above observations and  direction,  the  Writ  Petitions  are
disposed of.


                ..........................................................J.
                                                             [ T.S. THAKUR ]


               ...........................................................J.
                                                       [ ADARSH KUMAR GOEL ]
New Delhi
September 9,  2014

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[1]    (1990) 1 SCC 613


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