Italy must comply with undertaking given to the Supreme Court - The New Indian Express

Certain facts must be noted about the raging controversy over the Italian government's refusal to send back to India two Italian marines. The marines are facing criminal proceedings in Indian courts for the murder of Indian fishermen. The Italian government has disputed the jurisdiction of Indian courts on certain grounds. Neither Indian law nor international law casts any obligation on the Indian government to allow the marines to leave India for a temporary period pending their criminal trial. Hence the Italian government approached the Supreme Court of India seeking its permission to allow the marines to go to Italy in order to exercise their franchise in the forthcoming Italian elections. A solemn unconditional undertaking was given to the Supreme Court in the affidavit dated February 9, 2013, by the Italian ambassador on behalf of the Republic of Italy to ensure the production of the marines on dates prescribed by the Supreme Court despite Italy's contention about jurisdiction. An undertaking by a party is qualitatively different from a party's agreement or assurance to do certain acts. An undertaking is a commitment, a promise made by a party to the court for obtaining some concession from the court on the faith of its undertaking. The Supreme Court granted the concession of permitting the Italian marines to leave India for a temporary period. If a party, after obtaining benefit from the court, fails to honour its undertaking that is tantamount to playing a serious fraud on the court itself and the party is guilty of contempt. The court in contempt proceedings is not concerned with determining the rights of the rival parties. The matter is between the court and the contemnor. Breach of an unconditional undertaking given to the Supreme Court is a sui generis offence viz playing a fraud on the Supreme Court. It is extremely doubtful if such an offence is covered under the Vienna Convention. It is inconceivable that diplomatic immunity is granted for fraud on a court of law, thereby committing the offence of obstructing the course of justice. Assuming that the Vienna Convention confers diplomatic immunity in respect of such an offence, the same can be waived. Requirement of an express waiver under the Vienna Convention does mean there cannot be a waiver by necessary implication. It is settled law that a person can waive any benefit or advantage conferred upon him by any statutory provision. The Italian ambassador surely understood the implications of giving an undertaking to the Supreme Court and the consequences of its breach. He voluntarily approached the court without any reservation, pleaded for and obtained concession for the marines of his country and gave a solemn undertaking about their return. In these circumstances, there has been a waiver of diplomatic immunity by necessary implication. In any view of the matter, the Italian ambassador is precluded from taking the plea of diplomatic immunity by virtue of the doctrine of equitable estoppel which is not a mere technicality but is based on the principle of justice, equity and good conscience as laid down by the Privy Council and our Supreme Court judgments. Having obtained benefit from the Supreme Court because of his undertaking, the ambassador cannot turn around and now be permitted to raise contention about the jurisdiction of the court on any ground. In plain language, the ambassador cannot blow hot and cold and be permitted to have his cake and eat it too. The contention that the undertaking was given to a court which has allegedly no jurisdiction is no ground for not complying with the undertaking because "such a course would seriously erode the dignity and the authority of the courts" and bring into disrepute judicial institutions. Undertakings solemnly given to the Supreme Court should not be reduced to the level of waste paper. Our Supreme Court cannot be trifled with by any person, however high he may be. The bottom line is: Act honourably and comply with the undertaking as behoves a civilised government. via Top Stories - Google News http://news.google.com/news/url?sa=t&fd=R&usg=AFQjCNFXVDmXHFoLyxSCWz8SFIWrv_IsmQ&url=http://newindianexpress.com/education/student/article1508620.ece

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