Report No. 42
1.11. Territory of India includes territorial waters.-
Before considering the adoption of other principles in order to enlarge the field of operation of the Code outside India, we think it necessary to refer to the question what is within India for the purposes of the Code. Section 18 defines India as meaning the territory of India, excluding the State of Jammu & Kashmir. Does the territory of India include the territorial waters of India, which according to a Presidential proclamation announced on the 30th September, 1967, extend into the sea to a distance of twelve nautical miles measured from the appropriate base line?
The question may, for instance, arise in a concrete form if men in a foreign fishing boat wilfully attack men in an Indian fishing boat and cause hurt to them, or vice versa, when the boats are say 10 miles from the shore on the high seas. According to the International Convention on the Territorial Sea and the Contiguous Zone, 1958, "the sovereignty of a State extends beyond its land territory and its internal waters to a belt of sea adjacent to its coast, described as the territorial sea", but does the "territory of India" mentioned in section 18 of the Code comprise also the "territorial waters of India" mentioned in the Presidential Proclamation?
This doubt arises because of the importation of the common law theory accepted in Britain that the territory of the Realm includes the shore down to low water mark and .internal waters only, but not the territorial waters forming part of the high seas. Indian legislation has not always been drafted on the footing that the territory of India necessarily includes its territorial waters. We recommend that, for the avoidance of any doubt in the matter, it should be made clear in section 18 of the Code that the territory of India includes the territorial waters of India.
1.12. Principles on which section 4 is based.-
Clause (1) of section 4 of the Code, which makes all provisions of the Code applicable to offences committed by citizens of India in any place without and beyond India, is based on the internationally accepted principle that every sovereign State can regulate the conduct of its own citizens wherever they may be. Clause (2) of the same section is based on what is commonly, but not very correctly, referred to as the "floating territory" principle1, viz., a ship or aircraft under the flag of a State is under the protection of that State so that all persons on board such ship or aircraft, whatever their national status may be, are subject to the laws of that State.
1. See Supplement to the American Journal of International Law, Vol. 29 (1935), pp. 509, 510.
1.13. Other principles for extra-territorial jurisdiction.-
Other principles on which some States have assumed jurisdiction in their criminal laws may be briefly noted. Under the "protected interest principle", it is asserted that a State can punish actions committed beyond its limits if they impair an interest which it desires to protect. It has been noted1 that the claim that a "State may exercise extra-territorial jurisdiction over crimes of aliens directed against its security, credit, political independence or territorial integrit.-it is variously define.-has, though traditionally suspect in Anglo-American jurisprudence, a firm place in the practice of a number of States." It has, however, been observed that such exercise of the protective principle "in the modern world, which recognises the equality of States, is incompatible with the existence of a world society fundamentally grounded on the conception of the independence of the States."2
1. R.Y. Jennings, Extra-territorial Jurisdiction and the United States Anti-trust Laws, (1957) 33 British Year Book on International Law, 146, 155.
2. Garcia Moran, Criminal Jurisdiction over Foreigners, (1958-59) Pittsburgh Law Review 567, 568.
1.14. Passive personality principle.-
Some States assert jurisdiction because the victim of a criminal act committed outside State territory is one of its citizens. This is sometimes described as the "passive personality" principle. This notion according to which a State claims the right to punish aliens for offences committed abroad to the injury of its own nationals has found no place in Anglo-American jurisprudence.2
1. See R.Y. Jennings, op. cit.
1.15. States can, and do, assume jurisdiction in relation to international crimes committed abroad e.g., piracy jure gentium, slave trade, Geneva conventions relating to prisoners of war, suppression of immoral traffic in women, dangerous drugs etc. The basis of this jurisdiction is not territorial sovereignty or anything connected with it but the principle of universality. A great number of nations having agreed to treat such crimes as crimes against mankind, any State representing mankind is justified in assuming jurisdiction under its own laws to try the offender even if there be no other nexus between the crime (or the offender) and the State.
1.16. The Harvard Research Draft Convention.-
Reference should be made in this connection to the Draft Convention on Jurisdiction with respect to crime proposed in 1935 by the Harvard Research in International Law.1 It indicates the limits to which a State may go in assuming and exercising jurisdiction with respect to crimes committed outside its territory. (Incidentally, the Draft Convention defines a State's territory as comprising its land and territorial waters and the air above its land and territorial waters). The Draft Convention proposed for international recognition that a State has jurisdiction with respect to any crimes committed outside its territor.-
(a) by an alien in connection with the discharge of a public function which he was engaged to perform for that State;2
(b) by an alien while engaged as one of the personnel of a ship or aircraft having the national character of that State;
(c) by an alien against the security, territorial integrity or political independence of that State, provided the act or commission which constitutes the crime was not committed in exercise of a liberty guaranteed the alien by the law of the place where it was committed;3
(d) by an alien which consists of a falsification or counterfeiting or an uttering of falsified copies or counterfeits, of the seals, currency, instruments of credit, stamps, passports or public documents, issued by that State or under its authority;1
(e) by an alien, which constitutes piracy by international law.5
1. See Supplement to the American Journal of International Law, Vol. 29, (1935), pp. 435-638.
2. Article 6 of the Draft Convention.
3. Article 7, ibid.
4. Article 8, ibid.
5. Article 9, ibid.
1.17. Extension to aliens in the service of Government, recommended.-
We consider it desirable to extend the extra-territorial application of the Code to aliens in the service of the Government (Central as well as State), but not in respect of all offences punishable under the Code. Where an alien in Government service commits an offence outside India, the provisions of the Code do not apply to him, nor is he liable to be tried for the offences in India, even if he comes to India whilst in such service. If the offence committed abroad is connected with his service under the Government, such as bribery, criminal breach of trust, theft of Government property and the like, it is obviously desirable, even if not absolutely essential, that the provisions of the Code should be applicable and that the offender should be liable to be tried in India for the offence if and when he is brought back to, or is found in, India.
While the foreign State in which the offence is committed is competent to prosecute and punish him for it, it may not have the same interest in such prosecution as it would have if its own governmental interests were affected. Assumption of criminal jurisdiction by the State employing the public servant "may be said to rest on the principle that each State has an unrestricted capacity to organize and control its own governmental agencies".1
While it is not necessary, nor even desirable, that the Indian Penal Code should apply as a whole to an alien in Government service where the offence is committed in his individual or private capacity, we think it would be quite justifiable and proper to apply it so far as the offences punishable under Chapter VI (Offences against the State), Chapter VII (Offences relating to the Army, Navy and Air Force) or Chapter IX (Contempt of the lawful authority of public servants) of the Code are concerned. Even though it might not be possible to say that the alien public servant committed such offences in connection with his service, their commission by a public servant could not be tolerated.
1. Supplement to the American Journal of International Law, Vol. 29, (1935), p. 540.
1.18. Section 4 revised.-
We accordingly recommend that section 4 of the Code be revised as follows and placed immediately after section 1, as section 21:
"2. Ex-territorial application of the Code. This Code shall apply als.-
(a) to any offence committed outside India by a citizen of India;
(b) to any offence committed by an alien on any ship or aircraft registered in India, wherever it may be; and
(c) to any offence committed outside India by an alien whilst in the service of the Government, when such offence is committed in connection with such service or is punishable under Chapter VI, VII or IX of this Code.
"Explanation.- In this section, the word 'offence' includes every act committed outside India which if committed in India would be punishable under this Code."
1. The existing section 2 is proposed to be omitted: see para. 1.7, above.
1.19. Corresponding amendment in section 188, Cr. P.C.-
When this amendment is made in the Indian Penal Code, it will be necessary to amend section 188 of the Criminal Procedure Code so as to cover the case of aliens in the service of the Government who commit outside India offences punishable under the Indian Penal Code. We have, in our Report on the Code of Criminal Procedure, recommended]. that sub-section (1) of section 188 of that Code should be revised as follows.-
"(1) When an offence is committed outside Indi.-
(a) by a citizen of India whether on the high seas or elsewhere, or
(b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at "any place within India at which he may be found:
We think, however, that instead of amending the sub-section on exactly the same lines as section 4 of the Penal Code, it would be desirable to generalise the provision and make it applicable to all offences committed outside when they are punishable in India under the Penal Code or any special law. The sub-section may be amended to read.-
"188. (1) When an offence committed by any person outside India is punishable under the Indian Penal Code or any special law such person may be dealt with in respect of the offence as if it had been committed at any place within India at which he may be found:
1. 41st Report, para. 15.70.
1.20. Section 5.-
Section 5 expressly provides that nothing in the Code shall affect the provisions of any Act for punishing mutiny or desertion of officers, sailors, soldiers or airmen in the service of the Government of India or the provisions of any special or local law. The expressions "special law" and "local law" are defined in section 41 and 42 of the Code. Since the Acts providing for the discipline of the officers and men of the armed forces of the Union like the Army Act, 1950, the Air Force Act, 1950, and the Navy Act, 1957, are undoubtedly special laws within the definition, section 5 may be simplified to read.-
"5. Nothing in this Code shall affect the provisions of any special or local law."
Since section 4 is to be revised and placed as section 2, the revised section 5 may be numbered section 4.
1. 41st Report, para. 15.70.