SC Issues Notices in Missing Sailor Case, Directs MEA to Act | Impact

The Supreme Court on Monday issued notices to the Union of India and five other respondents in the case of the Indian sailor who has been missing since his cargo ship was struck by a drone in the Black Sea, and directed the Ministry of External Affairs to use its diplomatic channels to trace him.

A bench led by the Chief Justice of India heard the writ petition filed by Sandeep Kumar Gupta, the elder brother of Deepak Kumar Gupta, an Ordinary Seaman missing along with his fellow sailor Ram Chandra Dubey since the MV AGN Ragnar was attacked near the Ukrainian coast on 25 July. Notices were issued to all six respondents: the Union of India through the Ministry of External Affairs, the Ministry of Ports, Shipping and Waterways, the Directorate General of Shipping, the Embassy of India in Bucharest, the Embassy of India in Kyiv, and the manning agency Dwelloship Management. Solicitor General Tushar Mehta, appearing for the Union, accepted the notice on its behalf.

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What the Supreme Court said

Opening the hearing, the Chief Justice set out the contradiction at the heart of the case. The petitioner's brother had been serving as an Ordinary Seaman when his ship was attacked by a drone off Ukraine, the bench observed, and the accounts that followed were irreconcilable: one held that the sailor had drowned, another that two of the crew were alive and two missing.

Counsel for the petitioner clarified the crew position. There were nine crew members in all, four of them Indian. Two were recovered at the scene, and two went into the water to escape the fire that broke out after the strike.

The bench then pressed the question that has shadowed the case from the outset: which arm of the Indian state was answerable for tracing the missing sailor. The Chief Justice asked whether the Indian embassy in Romania, the embassy in Ukraine, or the Ministry of External Affairs had established the facts.

The court then passed its order. It issued notice to all six respondents, including the Union of India, the Directorate General of Shipping and the two missions, and requested the government to seek immediate instructions from the Indian embassies in Ukraine and Romania to establish the whereabouts of the missing sailor, Deepak Kumar Gupta. It further directed the Ministry of External Affairs to use its diplomatic channels in the search, and sought to know whether the International Maritime Organization's convention on the fair treatment of seafarers had been observed.

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The Probe's reporting, and how the family reached the courtroom

The order marks a decisive turn in a case that had, until now, moved almost entirely against the family. The Probe has reported extensively on the missing sailors, and it was through that reporting that the family, without the means to mount a legal fight of its own, was put in touch with the lawyer who took the petition to the Supreme Court pro bono.

Nishant Bharihoke, counsel for the petitioner, set out the significance of the day's proceedings to The Probe. "The Supreme Court has heard the petition today and issued notices to all six respondents, including the government of India. The learned Solicitor General of India has accepted the notice on behalf of the Union of India," he said. "The court has also asked the Union of India, through the Solicitor General, that whatever possible help is required for the family of the missing sailor Deepak Gupta may be provided. The case will be next heard on Friday."

He went on: "This is a significant order. I thank The Probe for bringing this case to me and helping the family fight this legal case. I have taken up this case in public interest. I hope at least these developments will help the government authorities take cognisance, and it is my firm belief that the MEA will not wait till Friday. They will act early. The Solicitor General has been given the advance copy of the petition. I am sure he will pass on this information to the government today itself."

Bharihoke said he had also counselled the family on the practical step to take next. "I have told the family of the missing sailor to get in touch with the authorities and tell them about this petition and the Supreme Court direction, and they will definitely help. At least they will wake up from their slumber."

For a family told for more than a week that the matter lay with the other embassy, first by Bucharest and then by Kyiv, the Supreme Court's order directing the Ministry of External Affairs to act is the first time any arm of the state has been placed under a formal obligation to find their missing sailor.

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What the petition asked for

The petition was filed on 31 July under Article 32 of the Constitution as a writ in the nature of mandamus. Its argument is constitutional: that the right to life under Article 21 follows the citizen wherever he goes and does not lapse at India's territorial waters, and that where two missions of the same sovereign each disclaim responsibility, the responsibility of the Union as a whole stands established, not diminished. It invokes the Vienna Convention on Consular Relations, 1963.

Though brought by Deepak Kumar Gupta's family, the petition concerns both sailors who went into the Black Sea. If the rescue reports are true, it argues, Deepak Kumar Gupta and fellow sailor Ram Chandra Dubey may be alive, injured and unidentified in a foreign facility. If they are not, every hour without a resumed search narrows their chances of survival. In either case, the petition contends, immediate action by the Union of India is the only route to the truth.

The petition had asked the court to press Romania, Ukraine and the flag state of Palau, at the highest level, to resume and intensify search and rescue on the basis of updated drift modelling; to verify with the Romanian Coast Guard and ARSVOM whether any rescued or recovered persons matching the two men are in Romanian medical facilities, port authority care or immigration custody; to obtain the official incident report, logbook and search logs; to direct the Directorate General of Shipping to compel full disclosure by the owner and managers through the manning agency; and to appoint a single senior nodal officer in the Ministry of External Affairs to furnish the family with daily written updates. An accompanying application for interim relief asks that the Bucharest mission make the verification inquiry within 24 hours.

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What happens next

The case now turns on what the government places before the court on Friday. The Solicitor General is expected to return with instructions from the Indian embassies in Kyiv and Bucharest on the whereabouts of Deepak Kumar Gupta, and on whether the two people reported rescued by the Romanian authorities are in fact the two Indian crew members from the MV AGN Ragnar. The court has also asked the government to clarify whether the IMO's convention on the fair treatment of seafarers has been observed.

The contradiction at the centre of the case is the one The Probe has reported throughout. Two official search efforts, Romania's ARSVOM and Ukraine's Navy, searched the waters off Sulina and found no one, and no body has been recovered on either side of the Black Sea. ARSVOM's operations head, who ran the 12-hour search from Sulina to St. George, told The Probe that the reports of a rescue were false. The Ukrainian Navy's letter, obtained by The Probe, records the same outcome: the two crew were searched for and not found.

Against these two accounts stands the claim of the maritime security firm Ambrey Analytics, first carried by the trade publication TradeWinds and later put to the missing sailor Deepak Kumar Gupta's family in writing, sourced to Lloyd's List, that two crew who went into the sea were subsequently rescued with minor injuries and are in the care of the Romanian authorities. Ambrey could not confirm the identities of those rescued. 

For the family, Friday is the next test of whether the government will act. For the first time since the MV AGN Ragnar was struck, a court has directed the state to establish where the sailor is and to report back.