A debate seems to be going on in the government circles on whether diplomatic immunity applied to the Italian Ambassador as he had “submitted to the apex court’s jurisdiction”. Officials in the Ministry of External Affairs (MEA), however, indicated that the court directions such as summons for the Italian diplomat would not be “enforceable” as per the Vienna Convention.
On Wednesday, sources in the Ministry of Home Affairs (MHA) argued that the Italian Ambassador had “willingly” submitted himself to the Indian court jurisdiction, which meant that “he had waived off” his diplomatic immunity.
“We did not force him to file the affidavit. He did it willingly. That means he had submitted himself to the Indian jurisdiction. Now, if he violated it, surely his diplomatic immunity is waived off,” said a senior MHA official, admitting that this interpretation was “debatable”. The MHA said as the lead government ministry, they might move an application on this before the Supreme Court.
Italian Ambassador Daniele Mancini, as a representative of the Republic of Italy, filed an affidavit before the Supreme Court on February 9 along with the special leave petition pleading for the four-week leave for both marines.
The MEA sources, however, said this interpretation of diplomatic immunity, as enshrined in the Vienna Convention, was highly problematic and the Italian Ambassador continued to enjoy diplomatic immunity despite furnishing the affidavit. Official sources further said it should be understood that “there was a fine distinction between subjecting one to jurisdiction and to enforcing a court action (on a diplomat)”. “The court can take any action against the Italian Government to take it to task for violating its commitment, but it will not be enforceable,” the sources said.
They said under the international treaty, foreign missions could not be compelled to receive summons from any local court. Recently, when former Maldives president Mohamed Nasheed was holed up in the Indian High Commission, India had used this clause to show that it could not accept summons for the Maldives leader from the local court.
The Supreme Court had allowed the special leave petition of the marines on February 22, basing its decision on the “Affidavit of Undertaking on 9th February, 2013, whereby he ( the Ambassador) has taken full responsibility for the petitioner nos 1 and 2 to proceed to Italy in the custody and control of the Government of Italy and to ensure their return to India in terms of this order”.