The Maritime Anti-Piracy Act, 2022

Policy Update
Qazi Furooz Shamas

Background

Piracy is not a new concern. It remains a serious issue in global shipping, particularly in the Indian Ocean, which is a major global shipping route. After 2008, there was a major surge in piracy attacks in the extended region of the Indian Ocean. This led the United Nations Security Council (UNSC) to recognise piracy as a crime having universal jurisdiction and called upon member states to criminalise piracy under their domestic law.

Since India lacked a dedicated legal regime on piracy, Indian courts faced several obstacles in prosecuting the pirates. This and the increase in the occurrences of maritime piracy and armed robbery necessitated the enactment of separate legislation on piracy. The Maritime Anti-Piracy Act was enacted in 2022 as a testament to this cause and to give effect to the United Nations Convention on the Law of the Sea (UNCLOS) that requires States to cooperate in the repression of piracy on the high seas or in any other place outside the jurisdiction of the States.

Functioning

The Anti-Piracy Act defines and criminalises the offence of piracy and provides a legal scope for prosecuting and punishing persons committing such acts on the high seas. It lays down a legal framework that provides a clearer process for prosecuting and convicting pirates in Indian courts. It also offers a strong deterrent against maritime piracy by imposing severe penalties, including the death penalty in very exceptional circumstances. By enacting this law, India has fulfilled its obligations under the UN Convention on the Law of Sea (UNCLOS) which it ratified in 1995.

The Act empowers the Indian Navy and Coast Guard to take action against pirates, including boarding, seizing, and arresting them, on the high seas, within the Exclusive Economic Zone (EEZ), and beyond. It enables Indian courts to prosecute the perpetrators with life imprisonment, a fine, or both and also lays down stringent provisions with regard to bail conditions. The Act requires the court to have ‘reasonable grounds’ to believe that the accused is not guilty and is unlikely to commit another offence while on bail. It also considers the offence of piracy as extraditable, in cases where India has established formal extradition agreements with respective countries.

Significance and Impact

Owing to its strategic position at the crossroads of the Indian Ocean, India plays a crucial role in ensuring the safety and security of maritime trade routes in the South Asian seas. Between 2014 and 2022, there were 19 piracy incidents involving 155 Indian crew members, highlighting the pressing need for legislation like the Maritime Anti-Piracy Act.

In the absence of such legislation, pirates apprehended outside India’s territorial waters could not be tried by Indian courts, as both the Indian Penal Code (IPC) and the Criminal Procedure Code (CrPC) are only applicable within 12 nautical miles of the coastline. Piracy occurring beyond this limit fell outside Indian jurisdiction. However, this Act addresses these issues by clearly defining piracy and expanding the geographical scope of the law. It provides for the prosecution of pirates even on the high seas, including within India’s Exclusive Economic Zone (EEZ) and beyond.

India is also a major trading nation, with over 90% of its goods being imported and exported via maritime routes and more than 80% of the country’s hydrocarbon requirements transported by sea. However, piracy has significantly disrupted these vital sea routes, including numerous attacks on Indian vessels, forcing shipping companies to pay huge ransoms to pirates. This has, in turn, led to a rise in insurance premiums.

The increase in piracy incidents has further driven up freight costs, negatively affecting the economic well-being of the country. With the enforcement of the Anti-Piracy Act, the number of piracy incidents is expected to gradually decline. As piracy incidents decrease, insurance premiums will likely fall, thereby reducing shipping costs. This will, in turn, have a positive economic impact.

As a major maritime power, India not only projects its influence in the Indian Ocean but also on the global stage. The Act aligns with the Government of India’s vision of SAGAR (Security and Growth for All in the Region), significantly contributing to India’s efforts to promote responsible behaviour as a maritime power and strengthening its position as a key player in global maritime security.

Concerning Provisions

Presumption of innocence is the core principle of criminal law where an accused is presumed to be innocent until proven guilty. However, Section 11 of the Maritime Anti-Piracy Act provides for a presumption of guilt of the accused, unless the contrary is proved, provided certain conditions are satisfied. It shifts the burden of proof from the prosecution, which would typically have to prove the accused’s guilt, to the accused, who must now prove their innocence. Such a provision might prove inimical to international cooperation at large and the extradition process in particular.

However, the provision of the Maritime Anti-Piracy Act that has sparked the most debate is the imposition of the death penalty for those found guilty of piracy that results in death or an attempted act that causes death. This provision has faced widespread criticism from human rights organisations.

The Supreme Court has previously ruled in several cases that the mandatory imposition of the death penalty for any offence is arbitrary and unjust, as it violates fundamental rights to protection of life and equality before the law, rendering such provisions unconstitutional. Although the Act also includes life imprisonment as the punishment and stipulates that capital punishment would only be applied in the ‘rarest of rare’ cases, the practical application of this provision remains to be seen.

There also needs to be more clarity in certain sections of the act related to penalties. The act distinguishes between individuals who directly commit piracy and those who participate in, organise, or direct acts of piracy. For those committing piracy, the act provides a maximum penalty of life imprisonment, a fine, or both. Conversely, for those involved in organising, participating in, or directing piracy, the act stipulates a maximum penalty of 14 years’ imprisonment. The ambiguity arises in how the court is to differentiate between these two categories, particularly in determining the appropriate penalty for individuals whose roles in piracy may not be immediately clear.

Moreover, some have raised concerns that the Act’s application beyond India’s territorial waters and EEZ could potentially infringe upon the principles of sovereignty under international law. There are also challenges related to India’s capacity and resources to effectively enforce the law. Although the country has made significant strides in enhancing its naval capabilities, issues such as manpower shortages and limited vessel availability persist. Despite the active involvement of the Indian Navy and Coast Guard in anti-piracy operations, resource constraints can sometimes limit their ability to maintain a sustained presence in critical areas.

Way Forward

While India’s Maritime Anti-Piracy Act represents a critical step forward for India, the recent crises in the Red Sea and an upsurge in piracy off the coasts of Somalia have shown that piracy remains a persistent and adaptable threat. Despite international anti-piracy efforts, the increasing complexity of maritime piracy—such as attacks involving non-state actors and pirate groups financing themselves through militias or terrorism—poses a significant challenge.

However, the act has the potential to significantly reduce piracy within its maritime sphere of influence and enhance its global maritime standing. Although its success will depend on regional cooperation, the effectiveness of enforcement, and adaptability to evolving piracy tactics (e.g., cyber piracy). As Rajya Sabha Member Shri Jawhar Sircar pointed out during the passage of the bill, it is essential to have an effective implementing agency capable of executing the law; otherwise, it will remain an ineffective paper act.

References

(2022, December 21). The Maritime Anti-Piracy Bill, 2022. Rajya Sabha Debates. https://rsdebate.nic.in/bitstream/123456789/733621/1/PD_258_21122022_p168_p197_467.pdf
(2022, December 8). Lok Sabha takes up debate on Anti-Maritime Piracy Bill. Indian Express. https://indianexpress.com/article/india/parliament-winter-session-lok-sabha-takes-up-debate-on-anti-maritime-piracy-bill-8312167/
(2023, January 31). THE MARITIME ANTI-PIRACY ACT, 2022. India Code. https://www.indiacode.nic.in/bitstream/123456789/19621/1/a2023-03.pdf
MINISTRY OF EXTERNAL AFFAIRS. (2021). THE ANTI MARITIME PIRACY BILL, 2019. In SIXTH REPORT [Report]. LOK SABHA SECRETARIAT. https://prsindia.org/files/bills_acts/bills_parliament/2019/17_External_Affairs_6.pdf
Pubby, M. (2024b, January 7). Maritime Anti-Piracy Act, SOPs led to Navy’s quick response off Somalia. The Economic Times. https://economictimes.indiatimes.com/news/defence/maritime-anti-piracy-act-sops-led-to-navys-quick-response-off-somalia/articleshow/106617513.cms?from=mdr
United Nations Convention on the Law of the Sea. United Nations. https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

About the Contributor: Qazi Furooz Shamas, a recent Political Science graduate from the University of Delhi, currently serves as a Research Intern at IMPRI.

Acknowledgement: This article was reviewed by IMPRI experts and other collaborators.