Sovereign Commitment To Portugal Binding On India; But Abu Salem Can't Seek Its Benefit Before November 2030 : MHA Tells Supreme Court

While healing the plea by 1993 Bombay Blast case convict Abu Salem that his sentence of imprisonment cannot exceed 25 years as per the undertaking given to the Government of Portugal, a Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh, on a couple of occasions, asked the Union Home Secretary to file an affidavit clarifying where the Government stands with respect to fulfilling the sovereign commitment made during the extradition of Abu Salem.

The then Deputy Prime Minister, Mr. L.K. Advani on behalf of the Government of India had provided the executive assurance to the Portuguese Republic vide a letter dated 17.12.2002. The relevant portion is as under -

"...The Government of India, therefore, on the basis of the provisions of the Constitution of India, the Indian Extradition Act, 1962 and the Code of Criminal Procedure of India, 1973 solemnly assures the Government of Portugal that it will exercise its powers conferred by the Indian laws to ensure that if extradited by Portugal for trial in India, Abu Salem Abdul Qayoom Ansari and Monica Bedi would not be visited by death penalty or imprisonment for a term beyond 25 years."

In June 2017, a TADA Court convicted Salem for offences under Sections 120B, 302, 307, 326, 427, 435, 436, 201 and 212 of the Indian Penal Code, Sections 3, 3(3), 5, 6 of the Terrorist and Disruptive Activities Rapid Protection Act, and provisions of the Arms Act, Explosive Substances Act and the Prevention of Damage to Public Property Act. In September, 2017 he was sentenced to life imprisonment.

Mr. Bhalla clarified that the assurance, though binding, would come into effect once the 25 years expires on 10.11.2030(Salem was deported to India in 2005). However, the MHA added, judiciary while adjudication matters were not bound by the same.

"The judiciary, as the Constitution of India envisages, is independent in deciding all cases including criminal cases in accordance with the applicable laws without in any way being bound by any position taken by the executive."

The MHA submitted, prior to 10.11.2030, Salem cannot seek the benefit of the sovereign commitment. Therefore, the plea raised by Abu Salem contending the sentence beyond 25 years was said to be premature. The affidavit stated -

"The Government of India will abide by the assurance dated 17.12.2002 subject to the rights which may be available at that stage. The attempt of the convict-appellant to club that assistance with merits of the present case is legally untenable as the appeal needs to be in accordance with Section 19 of the TADA read with other provisions governing criminal procedure."

The Apex Court was beseeched to decide the appeal on merit without going into the issue of sovereign commitment, which would be adhered to by the Government of India in accordance with law and subject to the remedies available on the completion of the 25 years.

Earlier, a bench led by Justice SK Kaul had expressed dissatisfaction with the affidavit filed by the CBI which stated that the commitment to Portugal was not binding on Indian courts. The Bench had then sought the stand of the Ministry of Home Affairs.

[Case Title: Abu Salem Abdul Kayyum Ansari v. The State Of Maharashtra]