Italian ambassador can’t claim immunity: Supreme Court

NEW DELHI: The Supreme Court has slammed Italy’s conduct in the marines’ case and disregarded its ambassador’s claim to diplomatic immunity, pushing Indian diplomacy into uncharted waters with an unprecedented stinging rebuke of a foreign country.

A three-judge SC bench headed by Chief Justice Altamas Kabir said that Ambassador Daniele Mancini, who had given it a personal undertaking to ensure the return of the two Italian marines accused of mistakenly shooting dead two Indian fishermen in February 2012, could not claim immunity. “You have given a personal undertaking. Those who appear as petitioners, give undertakings cannot claim immunity,” the Chief Justice said, appearing to reject arguments of Mancini’s lawyer Mukul Rohatgi, who had argued that the ambassador’s undertaking was at his government’s behest and he was entitled to diplomatic immunity.

The ambassador was not in court on Monday. The SC had last week ordered him not to leave the country, in a major escalation of a diplomatic stand-off triggered by Italy’s decision to not send back the two marines back to India. An incensed Chief Justice, who had presided over the bench which last month allowed the marines to go to Italy for four weeks to cast votes in that country’s elections at the ambassador’s undertaking, rejected an assurance from Rohatgi that Mancini would not leave the country.

“We don’t accept any such assurance from you. We have lost our trust in you,” Kabir said. “Some people are writing we are naïve. But we don’t expect the republic of Italy to behave like this. What do they think of our courts?” he said. The court will hear the case next on April 2.

SC’s refusal to buy the Italian side’s argument on diplomatic immunity has raised complex issues, notably whether such an immunity extended to a diplomat by civil and administrative authorities would have to be extended by courts and judicial authorities as well. It has also put the India’s foreign office in a tight spot, caught between an angry judiciary and concerned that any harsh action could adversely affect its overseas relations.

Italy has claimed any restriction on the envoy’s freedom of movement, including the right to leave, would be contrary to international obligations of the receiving state. The government’s top lawyer, Attorney General GE Vahanvati, told the court that the Italy had issued a fresh “note verbale” calling upon the government to provide reassurance that “no Indian authority shall impose or implement restrictive measures on the personal freedom of the ambassador”.

But international lawyers had a different view. London-based lawyer Sarosh Zaiwala also backed the view that the ambassador had implicitly waived his immunity when he invoked the jurisdiction of the court.

“It would, however, be different if in the undertaking which he gave to the court had expressly reserved his diplomatic immunity. If, however, there was no such reservation, then the ambassador would have waived his diplomatic immunity”.

SC shrugged off the note verbale, ordering Mancini not to leave the country till further orders and directed all authorities to ensure that he doesn’t do so.