The Territorial Waters Jurisdiction Act, 1878.

—Criminal jurisdiction over Indian

territorial waters
Author(s): K. G.
Source: Journal of the Indian Law Institute , Jan.-Mar., 1961, Vol. 3, No. 1 (Jan.-Mar.,
1961), pp. 99-103
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43953785

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 THE TERRITORIAL WATERS JURISDICTION ACT, 1878 99

the obtaining of a passport conclusive on the question of voluntary

acquisition of nationality, is ultra vires sec. 9 of the Citizenship Act
1955. But it is not correct to hold that passport is no evidence of
nationality. On the contrary it renders prima facie evidence on
questions of nationality, and, hence, rebuttable.

M. K. JV.

The Territorial Waters Jurisdiction Act, 1878. - Criminal jurisdiction

over Indian territorial waters.

Jurisdiction over territorial waters, that is, up to three nautical

miles from low water mark, was claimed and exercised by the courts
in India even prior to the passing of the Territorial Waters Jurisdic-
tion Act of 1878. For instance, in R. v. Irvine, 1 it was suggested by
Holloway, J., that the Penal Code operated to such a distance under sec. 1,
namely, the territorial jurisdiction. Again, in 1871, in R. v. Kastya
Rama, , 2 the accused were charged with committing mischief under
sections 425 and 427 of the Indian Penal Code, within three
miles of the shore of Bombay. The offence consisted in removing
fishing stakes fixed in che sea within the distance. The Bombay High
Court held that the Bombay Magistrate had jurisdiction by virtue of
the Admiralty Offences Act, 1849, and the Colonial Court of Admiralty
Act, 1860, and observed that the territorial jurisdiction under sec. 1 of
the Penal Code extended up to three miles into the sea and, therefore,
sec. 2 of the Penal Code was attracted. It is significant that such
jurisdiction was claimed, not by virtue of Admiralty jurisdiction but
entirely under the Penal Code. Mr. J. D. Mayne remarks: " This seems
not to be well founded. The decision itself is probably maintainable
on the ground that the defendant was subject to the Penal Code by
domicile, and did not escape from it till beyond three miles from
shore.55 3 However, the correctness of the decision does not seem to
have been questioned in any subsequent case.

1. First Mad. Sess., 1867, cited in J.D. Mayne, The Criminal Lam of India
p. 76.

2. (1871) 8 Bom. H.G.R. 63.

3. Mayne, T(ie Criminal Law of India , p. 30.

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100 GASES AND COMMENTS

In 1878 the Territorial Waters Jurisdict

consequence of the decision of the English
In that case, popularly known as the Francon
the accused Keyn for manslaughter growing o
was quashed by seven judges as against six on
jurisdiction ceased at low water mark and tha
that any British court had jurisdiction ov
by a foreigner on board a foreign ship w
the coast. The precise significance of this
subject of quite interesting study by vario
remarks: "The dictum that the Act of 1876
municipal law with international law will be
justified when the conflicting judgments given
Cases Reserved in the case of Reg v. Keyn are
ments in the Francojiia case were instrumenta
the unsatisfactory condition of the then exist
legislation on the subject." Brierly 6 poin
point for decision was one of English law, nam
of the jurisdiction of the English Court of A
a majority that this jurisdiction had never
which the collision had occurred.." Holdswort
decision is undoubtedly due to the exercise of
of the Admiralty by the common law courts.
might have been the other way had the crimi
veloped in the Court of Admiralty itself. In t
attention to the fact that the decision was by

4. [1876] 2 Ex. D. 63. Colombos records that B

between 1736 and 1833 provided for special jur
mainly in customs and excise regulations, over di
three-mile belt, which is commonly fixed by th
States, and that they were all repealed by the
Act, 1876 (39 and 40 Vict. C. 36, Sec. 179). That
ment of the regulations applicable to foreign ves
the shore. Colombos says that since then the inv
Britain has been to uphold the three-mile distan
laws and regulations and in its agreements with f
the Act of 1876 has been described by the Brit
" Act by which British municipal legislation was
. international law." (Colombos, International Law
p. 72).
5. Colombos, International Law of the Sea , (1954) edn., p. 73.
6. Brierly, The Law of Nations, (1955) edn., p. 189.
7. Holdsworth, History of English Law , Vol. I, pp. 551-52.

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 THE TERRITORIAL WATERS JURISDICTION ACT, 1878 101

" Cockburn, C. J., denied that a consensus of jurists could effect, in

maritime law, what, in another branch of the Law Merchant, he
allowed might be effected by a consensus of jurists." 8
The effect of the decision was remedied and the rule laid down
therein abolished by the passing of the Territorial Waters Jurisdiction
Act, 1878 (41 & 42 Vict. C. 73). 9 It is described as "An Act to
regulate the law relating to the trial of offences committed on the sea
within a certain distance of the coasts of Her Majesty's dominions."

Section 2 provides :
" An offence committed by a person, whether he is or is not a
subject of Her Majesty, on the open sea within the territorial
waters of Her Majesty's dominions, is an offence within the juris-
diction of the Admiral, although it may have been committed on
board or by means of a foreign ship and the person who commit-
ted such offence may be arrested, 'tried and punished accordingly.".
Section 7 defines an ' offence ' as follows :

" Offence as used in this Act means any act, neglect or default
of such a description as would, if committed within the body of a
county in England, be punishable on indictment according to the
law of England for the time being in force." .
Section 7 defines territorial waters as :

" Such part of the sea adjacent to the coast of some other part
of Her Majesty's dominions, as is determined by international law
to be within the territorial sovereignty of Her Majesty ; and for
the purpose of any offence declared by this Act to be within the
jurisdiction of the Admiral, any part of the open sea within one
marine league 10 of the coast measured from low-water mark
shall be deemed to be open sea within the territorial waters of
Her Majesty's dominions."
Section 3 prescribes that proceedings for the trial and punishment
of a person who is not a subject of Her Majesty shall not be instituted
except with the consent of a Secretary of State and on his certificate
that the institution of the proceedings is in his opinion expedient;

8. The reference is to Goodwin v. Roberts , (1875) L.R. 10 Ex. 337.

9. The jurisdiction of the English Courts over offences committed within
territorial waters is now governed by this Act ; the Act applies also to the
dominions of Her Majesty.
10. A marine league is equal to three nautical miles or 3.453 statute miles
Colombos, International Law of the Sea , (1954) edn., p. 67.

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102 GASES AND COMMENTS

if outside the United Kingdom, a similar certifi

is required and, in India, from the President. 11
In the preamble it is declared that " the rig
Her Majesty, her heirs and successors, extends and has always
extended over the open sea adjacent to the coasts of the United King-
dom and of all other parts of Her Majesty's dominions to such a
distance as is necessary for the defence and security of such
dominions."

Consequently, the jurisdiction of the criminal courts of England

is extended so as to include the coastal waters up to a distance of three
nautical miles measured from low water mark. The result is that
" all acts done on the open sea within the territorial waters of th
Queen's dominions are now, as the result of statute, within Admiralty
jurisdiction, whether the acts are done by British subjects or foreigners
and even though committed on board or by means of a foreign ship
they are now triable as if they had been committed on a Britis
ship." 12
The Act applied to India as part of Her Majesty's dominions. It
is noteworthy that there has not been a single reported decision in
India in which the Territorial Waters Jurisdiction Act of 1878 came
in for application. Yet, territorial waters jurisdiction of Indian
Courts is generally regarded as a jurisdiction to be exercised under
the Act. Being an Imperial Statute, it might probably have had the
effect of overriding anything to the contrary and, therefore, it might
not have been possible to apply the Indian Penal Code in the face of
a definition of 'offence' as laid down in the Act of 1878. In this
view, offences within the three-mile limit can be tried only under the
English substantive law. Therefore, if a person who is not an Indian
citizen commits an offence under the Indian Penal Code (but not on
board a ship registered in India) and within the three-mile limit, 13

11. See, Adaptation of Laws Order, 1950, passed by the President of India,
which came into force on January 26, 1950.
12. Halsburý s Laws of England, Vol. 10 (1955) edn., p. 319.
13. The three-mile limit as to territorial waters is now an established rule of
international law, although it is true that States consider it within their
right to extend the limit. The President of India issued a " Procla-
mation " on March 22, 1956, to the effect that "notwithstanding any
rule of law or practice to the contrary which may have been observed in
the past in relation to India or any part thereof, the territorial waters of
India extend into the sea to a distance of six nautical miles measured
from the appropriate base line."

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 THE TERRITORIAL WATERS JURISDICTION ACT, 1878 103

he can be arrested and tried by the criminal courts in India provided

it is also an offence punishable on indictment under the English Law.
It follows that if it is not an indictable offence under the English Law
it cannot be tried by the Indian courts although it might be an offence
under the Indian Penal Code, as for instance adultery, or drinking
liquor within three-mile distance from the shore of Visakhapatnam in
violation of the state's Prohibition Laws.

It is significant that the Law Commission of India, in its Fifth

Report on " British Statutes applicable to India ", recognises the urgent
need for the Indian Parliament to enact self-contained and compar-
able laws in all matters in which the British statutes did govern or were
possibly applicable to India and continue to do so ; and the law as to
territorial waters is mentioned as one among them. It should, however,
be mentioned that the Law Commission considered it to be outside
the purview of its reference to examine the content of future
legislation or the deficiency of the existing legislation which
needed reform; it merely drew the attention to the number of
statutes and the general necessity for immediate steps to be taken in the
direction. It is noteworthy that the Commission pointed 14 to the far-
reaching consequences of the ratio in C. G, Menotfs case.
Conclusion

It is desirable that the Union Government take necessary and

immediate steps to enact legislation concerning all such matters as now
fall within the scope of Territorial Waters Jurisdiction Act, 1878, as
it has already done in the matter of merchant shipping by enacting
the Merchant Shipping Act XLIV of 1958.
K. G.

Quaere , whether this Proclamation by the President of India has the

effect of extending the criminal jurisdiction beyond the three nautical
miles prescribed by the Act of 1878.
14. Fifth Report, pp. 4, 5, 8, 11, 52, 86, 89. In C. G, Menorfs case ([1958]
S.G.R. 328) the Supreme Court observed : " The whole basis for the
applicability of Part II of the Fugitive Offenders Act has gone ; India is
no longer a British Possession and no Order-in- Council can be made to
group it with other British Possessions. . . .Article 372 of the Constitution
cannot save the law because the grouping is repugnant to the conception
of a sovereign democratic republic. The political background and the
shape of things when Part II of the Fugitive Offenders Act, 1881, was
enacted and envisaged by that Act having completely changed, it is not
possible without radical legislative changes to adapt that Act to the
changed conditions." Fifth Report, pp. 4, 5, 8, 11, 52, 86, 89.

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