‘’Existence of a treaty is a political question, not for the court to decide”, Centre tells Supreme Court in a Habeas Corpus matter

Additional Solicitor General, Paramjit Singh Patwalia, told the Supreme Court today that the existence of an extradition treaty between two countries is a political question, and if the Union of India is taking a positive stand that there is a treaty, the Court can’t have a different view.

Patwalia made these observations, during the hearing of the petition filed by French national, Marie Verhoeven, challenging her continued arrest since February last year.

Verhoeven, who has been in Tihar jail since February last year, through her writ petition in the Supreme court, challenging her arrest and detention under the Extradition Act, has led to an interesting discussion before Justices Madan B Lokur and NV Ramana, on whether India and Chile have an Extradition Treaty.

Verhoeven is a French national who was intercepted in Uttar Pradesh on 17 February 2015 on the basis of a Red Corner Notice issued by Interpol on the request of the Republic of Chile for her detention for the alleged offence committed in Chile.

According to the Red Corner Notice, she was required for prosecution by the Republic of Chile on the charge of conspiracy to commit a crime and terrorist attack on a public authority on 1 April 1992 resulting in his death and an arrest warrant was issued against her on 21 September 2010 by Court of Appeal of Santiago in Chile.

In pursuance of a transit remand issued by the Jurisdictional Magistrate of Uttar Pradesh, she was brought to Delhi and was produced on 21 February 2015 before the Chief Metropolitan Magistrate, Patiala House Courts, New Delhi which is the designated Special Court for Extradition Cases.

The Embassy of Republic of Chile vide Note Verbale No. 26/2015 dated 24 February 2015 made a request to the Ministry of External Affairs, Union of India to take steps for her preventive detention stating that the Chilean authorities were intending to make a request for extradition and that a request had already been made on 23 February 2015 by the Special Investigating Judge of the Santiago Court of Appeals, Chile to the Supreme Court of Justice, Chile to seek extradition of the petitioner.

Subsequently, she was provisionally arrested vide order dated 24 February 2015 of the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi under Section 34-B of the Extradition Act, 1962.

Thereafter, accepting the extradition request dated 24 March 2015 made by the Republic of Chile, by order dated 18 May 2015 the Union Ministry of External Affairs directed inquiry under Section 5 of the Extradition Act, 1962 as to the extraditability of the offence committed by her.

In the request for extradition vide Note Verbale dated 24 March 2015 the extradition was sought on the basis of the extradition treaty since the Republic of Chile had subsequently discovered that there was an existing extradition treaty between the Republic of Chile and United Kingdom of Great Britain and Ireland, which was concluded and signed at Santiago on 26 January 1897.

The Ministry of External Affairs, Union of India notified an order in exercise of the power conferred by Section 3(3) of the Extradition Act, 1962 vide GSR 328(E) dated 28 April 2015 setting out the extradition treaty between Republic of Chile and United Kingdom of Great Britain and Ireland dated 26 January 1897 stating that the extradition treaty with United Kingdom of Great Britain and Ireland and the Republic of Chile was concluded and signed at Santiago on 26 January 1897 and the ratification exchanged at Santiago on 14 April 1898 are considered to be in force between the Republic of India and the Republic of Chile.

Her case before the Delhi High Court was that Republic of Chile is not a treaty State. In the absence of a treaty, though the provisions of the Extradition Act, 1962 could have been made applicable to the Republic of Chile by way of a notified order in terms of Section 3(1) of the said Act, since no such notification under Section 3(1) of the Act has been issued by the Union of India till date, her contention was that the provisions of the Extradition Act, 1962 are not applicable to the Republic of Chile and consequently her provisional arrest and detention in purported exercise of the powers conferred under the Act are illegal.

The Delhi high court held the gazette notification issued on 29 April 2015 making Extradition Act applicable to Chile valid, but ruled that it took effect only from 29 April 2015 and not earlier.  Therefore, the high court quashed the inquiry proceedings initiated by the Central Government in May 2015 against her, as they were based on the extradition request sent by Chile before 29 April 2015.

In the hearing before the Supreme Court which is nearing completion, Senior Advocate, Aryama Sundaram is defending Verhoeven, while ASG, Patwalia is representing the Central Government.

Read today's order here.