Manoj Gupta**,,

            When the captain and crew members of the Ship M V Rak Carrier that sank off Mumbai Coast on 4^th August, 2011 were rescued, little did they know that they would be arrested soon after.  They were arrested under IPC Section 336 dealing with endangering the life or personal safety of others.  An FIR was also registered against the owner of the ship.  While it is easier to deal with such cases that happen in the Indian territorial water, it becomes a much more complex issue when an accident or piracy takes place in international water. Till date India did not have any law to deal with the ticklish problem of piracy in high seas.  In the absence of a specific law to counter piracy, prosecuting the arrested pirates had also become a legal problem. On 24^th  April, 2012, the long-awaited Piracy Bill was introduced in Parliament by E. Ahmed, MoS for Ministry of External Affairs.  The Standing Committee on External Affairs is in the process of finalizing the Bill.  The Bill proposed to hand out death penalty for committing piracy on the high seas or inIndia’s Exclusive Economic Zone which stretches to 200 nautical miles from the coast.

The Piracy Bill, 2012, inter alia, provides for the following, namely:-

• “to define the expression “piracy” so as to include various acts, as given in 1982 United Nations Convention on the Law of the Sea as acts of piracy;
• to provide punishment for an act of piracy, attempt to commit piracy and accomplice to piracy;
• confers power on any Gazetted officer of the Central Government or of a State Government with the powers of arrest of any person, investigation and prosecution exercisable by a police officer under the Code of Criminal Procedure;
• to specify by the Central Government after consultation with the Chief Justice of concerned High Court, by notification, one or more Court of Session in the State to be Designated Court for providing speedy trial of the offences under the proposed legislation and the territorial jurisdiction of each such Court;
• provides for application of Code of Criminal Procedure in the proceedings before a Designated Court; provisions relating to bail of accused persons;
• provision as to  extradition of persons involved in an act of piracy;
• for the purpose of geographic scope, to extend the proposed legislation to the exclusive economic zone of India.”

The act of sea piracy has been there since time immemorial.  It has figured in fairy tales as also in the economic histories. India’s regular contact with the West through Sea routes began after Alexandar’s invasion.  Magasthenes had mentioned that many Greeks had flocked to the Mauryan Capital Patliputra for trade during that period.  The Ptolemaic rulers tried to promote direct trade by sea routes betweenIndia and Egypt by constructing ports like Berenice and Myos-hormos.  But the all sea route was not very popular.  Very few would dare to venture on this voyage for commerce for various reasons, including Piracy.  Regular Maritime contact betweenIndia and Egypt began after 23 B.C. Indian traders sailed directly to Somali ports and then reached Egypt.

            Gulf of Aden has been a hot bed for Somali pirates for quite some time now.  The incidents of sea piracy especially in the Gulf of Aden have become rampant in recent times.  One is flabbergasted by the huge amount of money transacted in these piracies. According to a rough estimate, piracy is now a whopping billion dollar global business!

            The excruciating pain and anguish that the relatives of the hijacked passengers and crew members of the ship pass through is understandable.  For one thing the Government cannot possibly negotiate with the pirates.  Secondly, the multiplicity of agencies – Ministries of External Affairs, Home, Shipping, Defence, et al – makes things more complicated.  More than anything else, in the absence of strong anti-piracy law, the Government could have done little to bring the pirates to justice. One has to respect the prevailing International Law and territorial water limit.

            Pirates generally set to sail in small dhows and skiffs armed with archaic machine guns and pistols. There is always a possibility of attacking a ship again that has been released by a different group of pirates.  Same group of pirates generally do not re-attack the ship after getting the ransom money. Ransom money is generally paid through a private agency. If the pirates feel they are running out of their food and diesel, they mount pressure and add the cost of feeding, diesel and maintenance.  After receiving the money the pirates generally leave the hijacked ship and escape in their smaller boat / dhow. The most curious case of Somali pirates is that they need huge money to feed the hostages for months together, if not for years, when they take the hostages to the shore.  If they get a hint that the bargain is going to be tough and long-drawn, they take the hostages to land and add the cumulative expenses for keeping the hostages alive.

Generally, merchant ships carry nationals and crew of various countries and when a ship is hijacked the countries don’t involve in negotiations directly and the owner of the ship is asked to pay the ransom.   The owner of the ship, in most of the cases, washes his hands off by saying that he doesn’t have the amount demanded by the pirates or more conveniently, the ship itself is very old and not the ransom’s worth.   More importantly, he knows that pressure will also be mounted on all the countries whose nationals are on board.

Although allowing armed guards on board ships is an option, but knee-jerk reactions from the guards can spell disaster. A case in point is the unfortunate incident involving the guards of the Italian ship Enrica Lexie wherein   two fishermen from Kerala were mistakenly killed. The government has though introduced a mechanism to allow armed guards on board ships. The Ministry of Shipping has issued Guidelines regarding deployment of armed guards in Indian Merchant Ships as a part of the various steps undertaken by the Government to combat the piracy inGulf of Aden. The Ministry considered the fact that about 35% of the ship transiting in these waters deploy armed security guards and that the pirates generally don’t attack ships with armed guards on board.

               The Guidelines have accordingly been issued by the Ministry of Shipping in consultation with Ministry of External Affairs, Ministry of Defence, Ministry of Home Affairs, Department of Revenue (CBEC), Navy and Coast Guard. As per these guidelines the ship owners are allowed to engage Private Maritime Security Companies (PMSC), who are properly selected and vetted. All Indian ships visiting Indian ports are to furnish details of security personnel on board, the fire–arms carried by them and the details of license issued etc. to the Port authority, Customs, Coast Guard and the Navy. Foreign merchant vessels visiting Indian ports with security guards are also required to follow similar procedure.

            Apart from bringing out the Piracy Bill 2012, the Government has taken various measures to combat piracy.  These are, inter-alia:

• An Inter-Ministerial Group of Officers has been set up to deal with hostage situation arising out of the hijacking of merchant vessels with Indian crew on board.

·         A Notice has been issued by the Directorate General of Shipping detailing elaborate anti-piracy measures (Best Management Practices) including safe house/citadel.

• Sailing vessels banned to ply in waters south or west of line joining Salalah and Male.
• Naval escort provided by Indian Naval Ships in Gulf of Aden.
• Enhanced vigil by Indian Navy in Indian Exclusive Economic Zone (EEZ) and westward up to 65 degree east longitude.
• Guidelines for deployment of armed guards on Indian merchant ships issued.

• The Directorate General of Shipping under Ministry of Shipping has issued a notice on 7^th March, 2012 for the safe navigation of merchant ships on Indian coast and advising all merchant vessels to take note of dense fishing traffic on the Indian coast. Merchant Ships have been advised to navigate with extreme caution when approaching up to 50 nautical miles from the Indian coast.  Indian Coast Guard has also issued a warning on 23^rd February, 2012 in which all vessels have been warned that fishing is carried out up to 50 nautical miles from the coast and vessels should not mistake fishing boats as skiffs and Piracy Armed Groups (PAGs).

The 35-member Indian Ocean Naval Symposium (IONS) held a meeting recently in Cape Town, South Africa to tackle, inter-alia, the piracy issue.  A decision to evolve certain papers including standard operating procedures was taken involving three countries – Australia, Singapore and India. Although the focus on India was on Humanitarian Assistance and Disaster Relief (HADR), India took the opportunity to highlight the piracy issue as some parts of the Arabian Sea continued to be a high risk area for piracy.