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Report No. 151

Chapter 10

Conclusions and Recommendations

10.1. The jurisdiction of courts in a State is the manifestation of the State's independent sovereign power as a nation. The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation unless imposed by the State itself. Therefore, admiralty jurisdiction is an essential aspect of judicial sovereignty which under the Constitution and the laws is exercised by the High Court as a superior court of record administering justice in relation to persons and things within its jurisdiction. The power to enforce claims against foreign ships is an essential attribute of admiralty jurisdiction and it is assumed over such ships while they are within the jurisdiction of the High Court by arresting and detaining them.

10.2. The Supreme Court has pointed out recently1: "All persons and things within the waters of a State fall within its jurisdiction unless specifically curtailed or regulated by rules of international law.2 The power of arrest a foreign vessel, while in the waters of a coastal State, in respect of a maritime claim, whenever arising, is a demonstrable manifestation and an essential attribute of territorial sovereignty. This power is recognised by several international conventions. These conventions contain the unified rules of law drawn from different legal systems.

Although many of these conventions are yet to be ratified by India, they embody principles of law recognised by the generality of maritime States and can, therefore, be regarded as part of our common law. Absence of ratification of these conventions is apparently not because of any policy disagreement, as is clear from active and fruitful Indian participation in the formulation of rules adopted by the conventions, but perhaps of other circumstances, such as lack of adequate and specialised machinery for implementation of the various international conventions by co-ordinating the concerned Departments of the Government.

Such a specialised body of legal and technical experts can facilitate adoption of internationally unified rules by national legislation. It is appropriate that sufficient attention is paid to this aspect of the matter by the concerned authorities. Perhaps the law Commission of India, endowed as it ought to be with sufficient authority, status and independence, can render valuable help in this regard. Delay in the adoption of international conventions which are intended to facilitate trade hinders the economic growth of the nation."

1. Elizabeth's case, (1992) 2 JT (SC) 65.

2. Like Sovereign and Diploma tic Immunities, etc.

10.3. The Commission has discussed in detail, earlier in this report, the various international conventions/protocols and agreements to which the Indian Government has been a party and also indicated the extent to which our country has implemented these conventions, protocols and agreements. It has also indicated the stages at which the issues of implementation of each of the various protocols and conventions stand. All that is now necessary to be done in this regard, in the light of the observations of the Supreme Court quoted earlier, in speedy action to review the position and expedite implementation of the conventions, agreements and protocols without further delay.

The Supreme Court has commented on the lack of adequate specialised machinery for implementation of the various international conventions. A perusal of the dates of these conventions and the stage of implementation referred to earlier will show that the Government has not given enough priority to follow-up action in these matters. We view with great concern the apathy and indifference which have characterised the actions of the Government in this regard and regret that the process of decision-making has been caught up in bureaucratic delays and tangles. We have considered the possibilities of our direct contribution in this regard.

We have, however, come to the conclusion that as ratification (or otherwise) of international conventions will primarily be a matter of State policy and as decisions on the issue will depend upon up-to-date information regarding the attitudes of other countries, procedural and other difficulties that the country and the trade may face and appreciation of technical data: it will not be feasible or practical for the Commission itself to take on this exercise.

We would, therefore, recommend that the Government should immediately constitute a Review Committee to undertake this task, the Committee may comprise of officers of the status of Additional Secretaries in the Home Ministry, the Legal and treaties Division of the External Affairs Ministry, the Ministry of Surface Transport and the Department of Legal Affairs in the Ministry of Law.

The Committee may examine in detail, in respect of each of the several conventions/ protocols and agreements which have been ratified by India but still remain to be implemented, the cause for delay and ensure that speedy action is taken to implement these international conventions without further delay. The Committee may also review the latest position in respect of other protocols and conventions which have been adopted by other countries and are internationally in force but which are yet to be ratified by the Indian Government and make recommendations as to their ratification or otherwise in the immediate future.

10.4. It has been pointed out earlier that the Admiralty Jurisdiction, despite the peculiarities of its origin and growth is a part of the totality of jurisdiction vested in the High Court as a superior court of record, and it is not a distinct and separate jurisdiction as was once the position in England before the unification of courts. The 1890 and 1891 Acts specifically conferred admiralty jurisdiction on the Indian High Courts by reason of their being courts of unlimited jurisdiction.

These Acts did not create any separate or distinct and separate jurisdiction, but merely equated the Indian High Courts to the position of the English High Court (united and consolidated as that Court has been since 1875) for the exercise of admiralty powers within the jurisdiction of the former. The contrary view expressed in some of the decisions of the High Courts referred to earlier was clearly wrong. We have also pointed out that it is not permissible or desirable to take away the jurisdiction of the High Courts in admiralty matters and vest the same in separate courts constituted for the purpose as recommended by the Parveen Singh Committee.

As it is proposed that admiralty jurisdiction should extend over all navigable waters in the country, it is not necessary to limit the jurisdiction only to High Courts whose territories have a coastal belt. Hence, it is recommended that the Admiralty Jurisdiction must continue with all Indian High Courts as part of their original jurisdiction, with a provision empowering the extension of this jurisdiction to other principal civil courts in case a necessity therefor should arise in future. Details of this recommendation have been dealt with in Chapter 9.



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