Writ Petition (C) No. 536 of 2012 and 26 of 2014. Case: Gaurav Kumar Bansal Vs Union of India (UOI). Supreme Court (India)

Case NumberWrit Petition (C) No. 536 of 2012 and 26 of 2014
JudgesT.S. Thakur and A.K. Goel, JJ.
IssueAdmiralty Offences (Colonial) Act, 1849; Safety of Maritime, Navigation and Fixed Platform on Continental Shell Act, 2002; Constitution of India - Articles 38, 39, 39A, 101
Judgement DateSeptember 09, 2014
CourtSupreme Court (India)

Judgment:

A.K. 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...

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