The Supreme Court has ruled that the Centre must honour the commitment it made to Portugal "as per the sovereign assurance and the principle of comity of countries", and release Abu Salem after the completion of his 25 years' imprisonment in the 1993 Mumbai blast case. The Leaflet breaks down this judgment.
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ON July 11, a Supreme Court division bench, comprising Justices Sanjay Kishan Kaul and M.M. Sundresh, in the case of Abu Salem Abdul Kayyum Ansari versus the State of Maharashtra, held that the Union Government is bound to exercise powers under Sections 432 and 433 of the Criminal Procedure Code ('CrPC'), and advise the President of India for exercise of their power under Article 72 of the Constitution, in order to release Abu Salem Abdul Kayyam Ansari from imprisonment, as per the national commitment to Portugal.
Salem alleged that the trial court violated the "solemn sovereign assurance" to not sentence him for more than 25 years of imprisonment. The assurance was given to Portugal on December 17, 2002 by the Union Government. The court observed that, firstly, under the doctrine of separation of powers, Indian courts cannot restrict or commute the period of sentence. Secondly, it held that it can still opine on India's compliance with its commitment to end Salem's imprisonment after 25 years.
Agreeing with the Additional Solicitor General ('ASG') K.M. Nataraj, appearing for the government, the bench held, "[C]ourts must proceed in accordance with law and impose the sentence as the law of the land requires, while simultaneously the Executive is bound to comply with its international obligations under the Extradition Act as also on the principle of comity of courts, which forms the basis of the extradition."
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In its judgment, the Supreme Court referred to two criminal appeals filed by Salem in 2015 and 2018. As per the facts of the 2015 appeal, arising from a property dispute, Salem was alleged to be involved in the brutal murders of Mumbai-based builder Pradeep Jain and his driver Mehndi Hassan on March 3, 1995. Under the 2018 appeal, the court referred to the bomb explosions at vital government installations and crowded places in Mumbai and its suburbs on March 12, 1993. The heinous acts had resulted in 257 fatalities, 713 significant injuries, and the destruction of hundreds of crores of rupees worth of property. Salem was alleged to have played a role in the conspiracy in both cases, and was later convicted and sentenced to life imprisonment by the trial court.
“The Supreme Court observed that, firstly, under the doctrine of separation of powers, Indian courts cannot restrict or commute the period of sentence. Secondly, it held that it can still opine on India's compliance with its commitment to end Salem's imprisonment after 25 years.
The judgment observes that in order to escape the 'penal consequences' of his above-mentioned criminal actions, Salem escaped to Portugal on a fake Pakistani passport, under an assumed name, for which he was sentenced and convicted. On account of not being present in the country, Salem could not be arrested for his offences committed in India, and was declared as an absconder in the chargesheet, and a non-bailable warrant was issued against Salem. On September 18, 2002, the International Criminal Police Organization Secretariat General issued a Red Corner notice for his arrest. On the basis of the notice, Salem, who was already in custody, was formally detained.
Relying on the International Convention for the Suppression of Terrorist Bombings and the principle of reciprocity under international law, on December 13, 2002, the Union Government submitted a requisition for Salem's extradition to Portugal, under the Extradition Act, 1962, in nine pending criminal cases. The government gave sovereign and supplementary assurances to Portugal to facilitate the extradition.
The conditions of extraditions laid down by Portugal and later confirmed under the Extradition Treaty between Portugal and India, provided that the extradited person, that is, Salem, would not face either a death sentence or life imprisonment, and would not be sentenced and punished for imprisonment beyond the term of 25 years.
To hold its sovereign assurance and national commitment to not charge Salem with more than 25 years of imprisonment, the government relied on relevant constitutional and legal provisions. Firstly, the assurance quoted Section 34C of the Extradition Act that states that a fugitive criminal charged with offence punishable by death in India, on his extradition, cannot be liable for death penalty, and shall be liable for life imprisonment instead. Secondly, the assurance highlighted Article 72(1) of the Constitution that granted power to the President of India to remit or commute the sentence of a convicted person. Thirdly, the sovereign assurance pointed towards Sections 432 and 433 of the CrPC that authorises the government to commute the sentence of life imprisonment to a term not exceeding 14 years.
“After a protracted legal battle, Salem was extradited from Portugal on November 11, 2005. On his role in the 1993 Mumbai serial bombings case, Salem was found guilty in June 2017 and sentence to life imprisonment.
Further, in 2003, India gave supplementary assurance to firstly, respect the 'principle of speciality' where it was promised that Salem would not be prosecuted for offences other than those for which extradition was sought; secondly, it was assured that he would not be extradited to any third country.
Both the Supreme Court of Justice of Portugal and the Court of Appeals in Lisbon took these solemn assurances into consideration when they issued their respective rulings on July 14, 2004 and January 27, 2005, respectively. The traditional estoppel doctrine and international public law, including the principle of reciprocity, necessitated the solemn sovereign promises offered by sovereign States to be respected in the future.
After a protracted legal battle, Salem was extradited from Portugal on November 11, 2005. On his role in the 1993 Mumbai serial bombings case, Salem was found guilty in June 2017 and sentence to life imprisonment. In the 2018 appeal, Salem approached the Supreme Court, claiming India violated the sovereign assurance by sentencing him to life imprisonment in the case.
In May, the court, before reserving its judgement, had said, "Based on the arguments made, two scenarios emerge before us — whether looking into the assurance given before a foreign court, the executive should be told to take a time-bound decision on his remission just before completion of 25 years or going by the principle of comity of courts, this court should say that in the light of the assurance we read down the sentence of life imprisonment to a period of 25 years."
Advocate Rishi Malhotra, appearing on behalf of Salem, submitted that per the Union Government's sovereign assurance to Portugal, Salem's imprisonment term cannot be extended beyond 25 years. Malhotra contended that despite courts designated under the Terrorist and Disruptive Activities (Prevention) Act lacking the authority to commute the sentence, the Supreme Court can pass necessary orders in that direction.
Further, Malhotra submitted that as per Section 428 of the CrPC, the period of Salem's detention by the Portuguese authorities, from September 18, 2002 to October 12, 2005, pursuant to the Red Corner notice, should be set off in calculating the term of imprisonment, as against from October 10, 2005, when Salem was taken into custody by the Indian authorities. The other two contentions of Malhotra included "the consequences of Portugal Courts withdrawing the permission for extradition on account of breach of the solemn sovereign assurance given to them" and "the merits of the controversy".
Notably, it was also submitted by Malhotra that the court should opine "when the term would end and direct the release of the appellant on expiry of that term."
Appearing for the Union Government, ASG Nataraj, argued that honouring the commitment of refraining from sentencing Salem for term beyond 25 years would become necessary only when the commitment was about to end, that is on November 10, 2030, and not before the period lapses. Nataraj submitted that the "government is bound by the solemn sovereign assurance given by the then deputy Prime Minister L.K. Advani to the Portugal government and it will abide by it at an appropriate time."
Further, Nataraj submitted that as per the doctrine of separation of powers, under the scheme of the Constitution, the judiciary is not bound by the sovereign assurance made by the government. He claimed that under the Extradition Act, it was the executive power of the respective States to ensure the commitment under such sovereign assurance is upheld.
On the contention of setting off the period of imprisonment in Portugal raised by Malhotra, Nataraj submitted that since Salem was convicted in Portugal for an offence committed in Portugal, he was not detained for the purposes of the trial in the present case. Nataraj, hence, submitted that section 428 of the CrPC cannot be attracted. He prayed for the period of calculation of imprisonment in the case at hand to commence from November 10, 2005, when Salem was handed over to the Indian authorities.
On the issue of the set-off of the detention period in Portugal, the court observed that in the present case, Salem's detention commenced on October 12, 2005.
“In respect on the issue of upholding the sovereign assurance, the court directed the Union Government to take necessary measures to facilitate the release of Salem at the conclusion of his term of 25 years of imprisonment.
In respect on the issue of upholding the sovereign assurance, the court directed the Union Government to take necessary measures to facilitate the release of Salem at the conclusion of his term of 25 years of imprisonment, and observed: "On the appellant completing 25 years of sentence, the Central Government is bound to advice the President of India for exercise of his powers under Article 72 of the Constitution, and to release the appellant in terms of the national commitment as well as the principle based on comity of courts. In view thereof, the necessary papers be forwarded within a month of the period of completion of 25 years' sentence of the appellant. In fact, the Government can itself exercise this power in terms of Sections 432 and 433 of the Cr.P.C. and such an exercise should also take place within the same time period of one month."
In conclusion, what makes the present verdict especially significant is the fact that this case raised many concerns about the 'international ramifications' India may suffer if it is perceived as breaking 'solemn' agreements made to foreign governments when gaining an extradition.