REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL CRIMINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 178 OF 2015
Verhoeven, Marie-Emmanuelle .…Petitioner
versus
Union of India & Ors. .…Respondents
WITH
CRIMINAL APPEAL NO. 417 OF 2016
(Arising out of S.L.P. (Crl.) No. 8931/2015)
J U D G M E N T
Madan B. Lokur, J.
1. The writ petition is admitted and in the connected matter, special
leave is granted.
2. The principal question for consideration is whether there is a binding
extradition treaty in terms of Section 2(d) of the Extradition Act, 1962
between India and Chile. Our answer to this question is in the affirmative.
3. The subsidiary question, equally important, is assuming there is
no binding extradition treaty between India and Chile, whether a
requisition by Chile invoking the principle of reciprocity and the general
principles of international law for extraditing the petitioner from India is
maintainable. In our opinion, the general principles of international law
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do not debar the requisition. However, whether the petitioner ought to be
extradited or not is a decision that the concerned Magistrate, before
whom the extradition proceedings are pending, will need to take on the
evidence and material before him.
4. The case before us has a chequered history inasmuch as the
Republic of Chile has sought the extradition of the petitioner who is
believed to be a French national. The petitioner is accused of being a
conspirator in the assassination of a Chilean Senator on 1st April, 1991.
She was sought to be extradited from Germany but the proceedings
terminated in her favour. She was then sought to be extradited from India
but the Delhi High Court held that the extradition proceedings initiated
against her were not in accordance with law. The present proceedings
have arisen out of yet another requisition made by the Republic of Chile
for her extradition to Chile to face trial in the assassination of the Chilean
Senator.
5. The extradition of a fugitive criminal is a serious matter since it
involves the liberty of a person and therefore learned counsel for the
petitioner placed a large amount of material before us, which he was
entitled to do since the matter involved the liberty of his client. The case
before us was, therefore, argued for several days and we were taken
through the history of extradition laws in India, the procedure in Chile
and some general principles of international law were also placed before
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us.
6. At one stage, it was submitted on behalf of the Government of
India that a French national could not challenge the existence of an
extradition treaty between India and Chile but in view of Article 21 of our
Constitution which benefits all persons in India, including non-citizens,
we did not accept this argument and proceeded to hear the case on the
entirety of the material before us. All that we need say in this context is
that Article 21 of the Constitution is entitled to the respect and expansive
interpretation that it deserves, and more. It is in view of this that we have
considered the matter before us.
7. To answer the questions before us, it is necessary to go all the way
back to the Extradition Act, 1870 (‘the 1870 Act’) when India was a
colony and a ‘possession’ of the British Empire.
The Extradition Act, 1870
8. In terms of Section 2 of the 1870 Act, by an Order in Council, Her
Majesty could direct the application of the 1870 Act in the case of a
foreign State with which an arrangement had been made with respect to
the surrender to such State of any fugitive criminal. The Order in Council
was required to recite or embody the terms of arrangement; it was also
required to be laid before both Houses of Parliament within a specified
period, and it was required to be published in the London Gazette.
Section 2 of the Extradition Act, 1870 reads as follows:
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“2. Where arrangement for surrender of criminals made, Order in
Council to apply Act.---Where an arrangement has been made with any
foreign state with respect to the surrender to such state of any fugitive
criminals, Her Majesty may, by Order in Council, direct that this Act shall
apply in the case of such foreign state.”
9. Section 17 of the 1870 Act provided for the application of that
Act, unless otherwise provided by an Order in Council, to extend to every
British possession in the same manner as if the British possession were
substituted for the United Kingdom or England. The operative part of
Section 17 of the 1870 Act reads as follows:-
“17. Proceedings as to fugitive criminals in British Possessions.---This Act
when applied by Order in Council, shall, unless it is otherwise provided by
such order, extend to every British possession in the same manner as if
throughout this Act the British possession were substituted for the United
Kingdom or England, as the case may require.”
10. Section 26 of the 1870 Act dealt with the interpretation of certain
terms used therein and the term ‘British possession’ meant (inter alia)
any colony within Her Majesty’s dominions. The term ‘governor’ meant
any person or persons administering the government of a British
possession and included a governor of any part of India.
11. Clearly therefore, the 1870 Act applied to that part of India as was
a colony within Her Majesty’s dominion or was a possession in Her
Majesty’s dominions. The terms ‘British possession’ and ‘governor’ as
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mentioned in Section 26 of the 1870 Act read as follows:-
26. Interpretation.---The term “British possession” means any colony,
plantation, island, territory, or settlement within Her Majesty’s dominions. and
not within the United Kingdom, the Channel Islands, and Isle of Man; and all
colonies, plantations, islands, territories, and settlements under one legislature,
as hereinafter defined, are deemed to be one British possession.”
The term “governor” means any person or persons administering the
government of a British possession, and includes the governor of any part of
India.”
12. Section 18 of the 1870 Act provided for the saving of laws of
British possessions. In other words, the provisions of the Extradition Act,
1870 could be applied by Her Majesty, by Order in Council, to any law
enacted before or after the 1870 Act by a British possession to any
foreign State, inter alia, by directing that such law shall have effect in
such British possession, with or without modifications and alterations, as
if it were a part of the 1870 Act. Section 18 of the Extradition Act, 1870
reads as follows:-
“18. Saving of laws of British possessions.--- If by any law or ordinance made
before or after the passing of this Act by the Legislature of any British possession,
provision is made for carrying into effect within such possession the surrender of
fugitive criminals who are in or suspected of being in such British possession, Her
Majesty may, by the Order in Council applying this Act in the case of any foreign
state, or by any subsequent order, either
Suspend the operation within any such British possession of this Act, or
any part thereof, so far as it relates to such foreign state, and so long as
such law or ordinance continues in force there, and no longer;
or direct that such law or ordinance, or any part thereof, shall have effect
in such British possession, with or without modifications or alterations,
as if it were part of this Act."
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The Extradition Treaty
13. On 26th January, 1897 the United Kingdom of Great Britain and
Ireland and the Republic of Chile entered into a Treaty for the Mutual
Surrender of Fugitive Criminals (for short ‘the Extradition Treaty’ or ‘the
Treaty’). In terms of Article I of the Treaty, the High Contracting Parties
engaged to deliver up to each other under certain circumstances and
conditions those persons who, being accused or convicted of any of the
crimes or offences mentioned in Article II thereof committed in the
territory of one Party are found within the territory of the other Party.
Article II of the Treaty provided for the reciprocal extradition for, inter
alia, the crime or offence of murder (including assassination, parricide,
infanticide, poisoning) or attempt or conspiracy to murder.
14. Article VIII of the Treaty provided that the requisition for
extradition shall be made through the diplomatic agents of the High
Contracting Parties respectively and that the requisition must be
accompanied by a warrant of arrest issued by the competent authority of
the State requiring the extradition and also by necessary evidence which,
according to the laws of the place where the accused is found, would
justify his arrest if the crime had been committed there.
15. The Treaty having been signed, an Order in Council was made on
9
th August, 1898 and this was published in the London Gazette on 12th
August, 1898. Both the Order in Council and the London Gazette
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embodied the text of the Treaty between the United Kingdom of Great
Britain and Ireland and the Republic of Chile.
16. The Extradition Treaty was subject to ratification and on 14th
April, 1898 Her Majesty and the President of the Republic of Chile
ratified the Treaty which was brought in force from and after 22nd August,
1898.
17. Soon thereafter, the Gazette of India of 12th November, 1898
reproduced the Order in Council published in the London Gazette of 12th
August, 1898 pertaining to the Extradition Treaty between the United
Kingdom of Great Britain and Ireland and the Republic of Chile. The
Extradition Treaty with the Republic of Chile was, therefore,
independently applicable to India as well. Incidentally, none of the
affidavits filed by the Union of India, either in the Delhi High Court or in
this Court, refer to or mention this gazette notification. The notification
was handed over to us in Court by the learned Additional Solicitor
General during the course of his submissions. This shows the seriousness
with which the Government of India conducted the litigation in the Delhi
High Court and initially in this Court and the level of its preparedness.
The Indian Extradition Act, 1903
18. The Indian Extradition Act, 1903 (the 1903 Act) was brought into
force on 1st June, 1904 in terms of Section 1(3) thereof. Section 2(c) of
the 1903 Act provided that a ‘Foreign State’ meant a State to which, for
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the time being, the Extradition Act, 1870 applied.
19. Section 3 of the 1903 Act provided for a requisition being made
by the government of any Foreign State for the surrender of a fugitive
criminal of that State, who is in or who is suspected of being in the
Provinces of India (later comprising of Part A States and Part C States of
India). The surrender was subject to an enquiry in this regard by a
Magistrate having jurisdiction to enquire into the crime as if it had been
an offence committed within the local limits of his jurisdiction.
20. The relevant provisions of Section 3 of the Indian Extradition Act,
1903 read as follows:-
“3(1)Where a requisition is made to the Central Government by the
Government of any Foreign State for the surrender of a fugitive criminal of
that State, who is in or who is suspected of being in the States, the Central
Government may, if it thinks fit, issue an order to any Magistrate who would
have had jurisdiction to inquire into the crime if it had been an offence
committed within the local limits of his jurisdiction, directing him to inquire
into the case.
(2) The Magistrate so directed shall issue a summons or warrant for the arrest
of the fugitive criminal according as the case appears to be one in which a
summons or warrant would ordinarily issue.
(3) When such criminal appears or is brought before the Magistrate, the
Magistrate shall inquire into the case in the same manner and have the same
jurisdiction and powers, as nearly as may be, as if the case were one triable by
the Court of Session or High Court, and shall take such evidence as may be
produced in support of the requisition and on behalf of the fugitive criminal,
including any evidence to show that the crime of which such criminal is
accused or alleged to have been convicted is an offence of a political character
or is not an extradition crime.”
21. On 7th March, 1904 an Order in Council was made declaring that
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Chapter II of the Indian Extradition Act, 1903 shall have effect in British
India as if it were a part of the Extradition Act, 1870. Consequently, the
provisions of Chapter II of the Indian Extradition Act, 1903 which dealt
with the surrender of a fugitive criminal in the case of a Foreign State was
made applicable to British India. This position continued till
Independence.
Indian Independence (International Arrangements) Order, 1947
22. Around the time of Independence, the Indian Independence
(International Arrangements) Order, 1947 (for short ‘the Order’) was
notified by the Secretariat of the Governor-General (Reforms) on 14th
August, 1947 in exercise of powers conferred by Section 9 of the Indian
Independence Act, 1947. The Order has the effect of an agreement duly
made between the Dominion of India and the Dominion of Pakistan and
came into effect from 15th August, 1947.1
The Order provides, inter alia,
that the rights and obligations under all international agreements to which
India is a party immediately before the appointed day will devolve upon
both the Dominion of India and the Dominion of Pakistan and will, if
necessary, be apportioned between the two Dominions. The effect of this
is that the Extradition Treaty entered into by the United Kingdom of
Great Britain and Ireland and the Republic of Chile continued in force as
far as India is concerned.
1 The agreement was reached on 6th August, 1947 but the notification was issued on 14th August, 1947
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The Extradition Act, 1962
23. To avoid any misgivings and apprehensions about the status of the
extradition treaties entered into between British India and foreign States
(including Commonwealth countries) the Extradition Act, 1962 (for short
‘the Act’) was enacted by our Parliament. It was brought into force on 5th
January, 1963.
24. Section 2(d) of the Act defines an extradition treaty as including a
treaty for the extradition of fugitive criminals made before 15th August,
1947 which extends to and is binding on India. The definition is
important and is in the following terms:-
“2(d) “extradition treaty” means a treaty, agreement or arrangement made by
India with a foreign State relating to the extradition of fugitive criminals, and
includes any treaty, agreement or arrangement relating to the extradition of
fugitive criminals made before the 15th day of August, 1947, which extends to,
and is binding on, India.”
25. Section 3 of the Act is also of some importance and it provides for
the issuance of a notified order by the Central Government applying the
provisions of the Act, other than Chapter III, to such foreign State or part
thereof as may be specified in the notified order. The said Section also
provides that where the notified order relates to a treaty State, it shall set
out in full the extradition treaty with that State.
Section 3 of the Act reads as follows:-
“3. Application of Act. (1) The Central Government may, by notified order,
direct that the provisions of this Act, other than Chapter III, shall apply to such
foreign State or part thereof as may be specified in the order.
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(2) The Central Government may, by the same notified order as is referred to
in sub-Section (1) or any subsequent notified order, restrict such application to
fugitive criminals found, or suspected to be, in such part of India as may be
specified in the order.
(3) Where the notified order relates to a treaty State:-
(a) it shall set out in full the extradition treaty with that State,-
(b) it shall not remain in force for any period longer than that treaty; and
(c) the Central Government may, by the same or any subsequent notified
order, render the application of this Act subject to such modifications,
exceptions, conditions and qualifications as may be deemed expedient
for implementing the treaty with that State.
(4) Where there is no extradition treaty made by India with any foreign
State, the Central Government may, by notified order, treat any Convention to
which India and a Foreign State are parties, as an extradition treaty made by
India with that foreign State providing for extradition in respect of the
offences specified in that Convention.”
26. Another important provision in the Act is Section 34-B relating to
a provisional arrest. This Section provides that on receipt of an urgent
request from a foreign State for the immediate arrest of a fugitive
criminal the Central Government may request the jurisdictional
Magistrate to issue a provisional warrant for the arrest of the fugitive
criminal. Section 34-B of the Act reads as follows:-
“34-B. Provisional arrest. (1) On receipt of an urgent request from a foreign
State for the immediate arrest of a fugitive criminal, the Central Government
may request the Magistrate having competent jurisdiction to issue a
provisional warrant for the arrest of such fugitive criminal.
(2) A fugitive criminal arrested under sub-section (1) shall be discharged upon
the expiration of sixty days from the date of his arrest if no request for his
surrender or return is received within the said period.”
27. On or about 16th March, 1956 (well before the Extradition Act,
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1962) came into force, an unstarred question No. 439 was raised in
Parliament by Shrimati Ila Palchoudhury requiring the Prime Minister to
state the countries with which India has an extradition treaty. In response
to the unstarred question, Prime Minister Shri Jawaharlal Nehru (who
was also the Minister for External Affairs) laid on the table of the House a
list of extradition treaties with foreign countries concluded by the British
Government on behalf of India before Independence and which were still
in force. One of the foreign countries with which an extradition treaty had
been entered into on behalf of India and still in force was the treaty with
Chile executed on 26th January, 1897.
28. When the Extradition Bill was introduced in 1961 and considered
in Parliament, Shri D.C. Sharma (an Hon’ble Member of Parliament)
referred to Clause 2(d) of the Extradition Bill and stated on 7th August,
1962 that he had a list of countries with which India has an extradition
treaty entered into prior to 15th August, 1947. One of the countries so
mentioned by Shri D.C. Sharma was Chile.
29. These details have been mentioned for the purposes of recording
the submission of the learned Additional Solicitor General that the
Extradition Treaty between India and Chile was in force not only before
Independence but also thereafter and that is how the Prime Minister of
India understood the position.
30. However, even though there might have been an extradition treaty
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in force between India and Chile, the fact of the matter is that post 5th
January, 1963 the provisions of the Act would not be applicable to the
Extradition Treaty without an appropriate notified order issued in
accordance with Section 3(1) [read with Section 3(3)] of the Act.
Apparently realizing this, the Government of India notified an Order
dated 28th April, 2015 (gazetted on 29th April, 2015) under Section 3(1)
read with Section 3(3) of the Act making the Act applicable to the
Republic of Chile.
31. The notified order contains three errors and it is reproduced
below:-
“G.S.R. 328(E) – Whereas the Extradition Treaty between the United
Kingdom of Great Britain and Ireland, and the Republic of Chile was
concluded and signed at Santiago on the January 26, 1897 and the Ratification
exchanged at Santiago on the April 14, 1898, are considered to be in force
between the Republic of India and the Republic of Chile;
And whereas the Central Government in exercise of the powers conferred by
sub-Section (1) of Section 3 of the Extradition Act, 1962 (34 of 1962) had
directed by an order number G.S.R. 56 dated 5th January, 1963 that the
provisions of the said Act, other than Chapter III shall apply to the Republic of
Chile;
Now, therefore, in exercise of the power conferred by sub-section (3) of the
Extradition Act, 1962 (34 of 1962), the Central Government hereby sets out
the aforesaid Treaty as under:-
Her Majesty the Queen of the United Kingdom of Great Britain and Ireland,
and his Excellency the President of the Republic of Chile, having determined,
by common consent, to conclude a Treaty for the extradition of criminals, have
accordingly named as their Plenipotentiaries:-
Her Majesty the Queen of the United Kingdom of Great Britain and Ireland
John G. Kennedy, Esq., Minister Resident of Great Britain in Chile; and
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His Excellency the President of the Republic of Chile, Senor Don Carlos
Morla Vicuna, Minister of Foreign Affairs;
Who, after having exhibited to each other their respective full powers, and
found them in good and due form, have agreed upon the following Articles:-
(The Articles of the extradition treaty are reproduced in the notified order, but
not reproduced here)
Now therefore, in the exercise of the power conferred by sub-section (1) of
Section 4 of the Indian Extradition Act, 1962 (34 of 1962), the Central
Government hereby direct that the provision of the said Act, other than
Chapter III, shall apply to the Republic of Chile with effect from the date of
publication of this notification, in respect of the offences specified in the
above Treaty.”
32. The first error in the notified order is the reference to GSR 56
dated 5th January, 1963 to the effect that the provisions of the Act other
than Chapter III shall apply to the Republic of Chile. GSR 56 is totally
(and admittedly) irrelevant to the context and has absolutely no concern
with the Republic of Chile. The second error is that the notified order is
purported to have been issued in exercise of powers conferred by Section
4(1) of the Indian Extradition Act, 1962. Section 4(1) has no relevance to
the context. What is relevant is Section 3(1) of the Act. The third error is
that there is no statute called the Indian Extradition Act, 1962. What has
been enacted by Parliament is the Extradition Act, 1962.
33. The validity of the notified order dated 28th April, 2015 was
challenged by the petitioner by filing W.P. (Crl.) No. 1215 of 2015 in the
Delhi High Court and a prayer was also made for quashing a requisition
made by the Republic of Chile for the extradition of the petitioner from
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India to Chile.
34. During the pendency of the writ petition, the Government of India
having realized the errors committed in the notified order dated 28th April,
2015 issued a corrigendum on 11th August, 2015 (published in the Gazette
of India) in which reference to GSR 56 dated 5th January, 1963 was
deleted and sub-section (1) of Section 4 of the Indian Extradition Act,
1962 was substituted to read sub-section (1) of Section 3 of the Indian
Extradition Act, 1962. No correction was made with regard to the
so-called Indian Extradition Act, 1962. The casualness with which the
corrigendum has been issued by the Government of India is quite
apparent.
The corrigendum dated 11th August, 2015 reads as follows:-
“GSR 628(E)- In the order of the Ministry of External Affairs, dated the 28th
April, 2015 published in the Gazette of India, Extraordinary, Part II, Section 3,
Sub-Section (i) vide G.S.R. 328(E), dated the 29th April, 2015, ---
In the said order, ---
(i) In the second paragraph, for “had directed by an Order number G.S.R.
56, dated January 5, 1963” read “directs”;
(ii) In the last paragraph, for “sub-section (1) of section 4”, read
“sub-section (1) of section 3”.
35. In view of the corrigendum dated 11th August, 2015 it must be
held that the notified order dated 28th April, 2015 was partially defective
and therefore the application of the Extradition Act, 1962 to Chile would
be effective only from 11th August, 2015 when the corrections were
carried out and not 28th April, 2015. However, this makes no difference to
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the ultimate result of this case.
The factual background
36. On 1st April, 1991 (the first Red Notice issued by Interpol
erroneously shows the year as 1992) a terrorist attack was perpetrated
leading to the assassination of Senator Jaime Guzman Errazuriz of Chile.
Initial investigations apparently did not point to the involvement of the
petitioner Marie Emmanuelle Verhoeven (believed to be a French
national). However, when further facts came to light in 2010, it appeared
that the petitioner was a member of a subversive organization responsible
for the assassination. Accordingly, a warrant for the arrest of the
petitioner was issued on 21st September, 2010 by the Court of Appeal of
Santiago in Chile. On the basis of this arrest warrant and a request made
by National Central Bureau (or NCB) at Santiago, Chile (and presumably
on the basis of other available information) a “Red Notice” was issued by
Interpol on 27th January, 2014 for the location and arrest of the petitioner
for an incident that occurred on 1st April, 1992 (actually 1991) with a
view to extradite her to Chile and also for her provisional arrest. The Red
Notice mentioned that NCB Santiago, Chile and the Interpol General
Secretariat be immediately informed on the fugitive being found.
37. A few days later on 29th January, 2014 the petitioner was indicted
for the offence above-mentioned.
38. It appears that pursuant to the Red Notice issued by Interpol, the
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petitioner was arrested in Germany but the concerned court in Germany
held by an order dated 6th June, 2014 that the extradition of the petitioner
was illegal. We are not concerned with the proceedings in Germany and
this is being mentioned only for completing the factual background.
39. Much later, on 17th February, 2015 the petitioner was detained and
arrested while crossing the Nepal border at the immigration point in
Sunauli, Uttar Pradesh. She was produced before the concerned
Magistrate in Maharaj Ganj in Uttar Pradesh and brought to Delhi on a
transit remand. She was then produced before the Chief Metropolitan
Magistrate, Patiala House Courts, New Delhi on 21st February, 2015 and
remanded to judicial custody till 24th February, 2015
40. Thereafter, on 24th February, 2015 the petitioner was produced
before the Additional Chief Metropolitan Magistrate, Patiala House
Courts, New Delhi who ordered her provisional arrest under Section 34-B
of the Act. The petitioner has been in judicial custody ever since that day.
The petitioner challenged her provisional arrest by filing W.P. (Crl.) No.
666 of 2015 in the Delhi High Court and also a subsequent order
continuing her judicial custody as a result of the Red Notice issued by
Interpol. In the writ petition, the petitioner sought her immediate release
from Tihar Jail, Delhi.
41. In the meanwhile and apparently on information received
regarding the arrest of the petitioner, the Embassy of Chile gave a Note
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Verbale on 24th February, 2015 to the Ministry of External Affairs,
Government of India. The Note Verbale is of some importance and it
reads as follows:-
“The Embassy of the Republic of Chile presents its compliments to the Ministry of
External Affairs of the Republic of India – CPV (Consular Passport, Visa) Division -
and has the honor to request the extension of the detention period of the French
citizen MARIE EMMANUELLE VERHOEVEN on the basis of the request for
preventive detention enclosed with this Note, issued by the Supreme Court of Chile.
The request for preventive detention to secure the extradition to be sought was
issued in matter No. 3.118-2015 tried by the Supreme Court of Justice, at the
request of the Special Investigating Judge of the Santiago Court of Appeals
Hon. Mario Carroza Espinosa.
As regards Ms. Verhoeven, described in the documents enclosed, a warrant of
arrest was issued against her on January 27, 2014. She was indicted on
January 29, 2014 as perpetrator of a terrorist attack leading to the assassination
of Senator Mr. Jaime Guzman Errazuriz on April 1, 1991.
The extension of Ms. Verhoeven’s detention period is grounded on the need of
taking into consideration Chilean internal procedures to subsequently request
the Government of the Republic of India to extradite the accused. Indeed, the
Chilean Supreme Court of Justice, upon making a decision as regards the
request for extradition filed by the Court having charged Ms. Verhoeven with
such crime, shall cause that a case file is opened, which will include the pieces
of evidence supporting the request for extradition.
Said request shall be remitted to the Chilean Ministry of Foreign Affairs for
translation into the English language before it is formally submitted to the
Indian Ministry of Foreign Affairs.
Additionally, to prevent the person whose extradition will be sought from
fleeing from justice, the Court of jurisdiction over the case has asked the
Supreme Court to issue a preventive detention warrant. According to the
Chilean criminal procedure system, a request for preventive detention – just
like a request for extradition- is made and decided by a court, the Executive
Power having no bearing whatsoever therein. The Executive is to act at
subsequent stages, i.e. administrative and diplomatic stages of an active
extradition proceeding.
All in all, this request for preventive detention is aimed at extending the
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detention period of Ms. Verhoeven so that each and every judicial,
administrative and diplomatic steps that need to be taken prior to the formal
extradition request being filed are carried out in due time, and also at securing
that the person sought is at the disposal of the competent authorities of the
Republic of India at the time of formally filing the request for extradition.
In the light of the absence of a treaty on extradition between both countries,
the Chilean Government guarantees to the Government of the Republic of
India that the State organs will ensure reciprocity in case a similar request is
filed by the competent authorities of your country.
The Chilean Embassy expresses the formal intention of the competent Chilean
Authorities to timely request the extradition of Ms. Marie Emmanuelle
Verhoeven.
The Embassy of the Republic of Chile avails itself of this opportunity to renew
to the Ministry of External Affairs of the Republic of India- CPV (Consular
Passport, Visa) Division – the assurances of its highest and most distinguished
consideration.”
42. The Note Verbale mentions the date of offence as 1st April, 1991
(which seems to be the correct date) while the Red Notice mentions the
date of incident as 1st April, 1992. The discrepancy between the two dates
can become important (in a given case) since the question of the liberty of
an individual is involved. However, for the present purposes, that is
overlooked and ignored since it does not have any material impact on the
final decision in these cases.
43. The second important fact that is explicit from a reading of the
Note Verbale is that the Embassy of Chile acknowledged that there is no
extradition treaty between India and Chile and that the request for
extradition is made only by way of a reciprocal understanding in case a
similar request is made by the competent authorities of India.
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44. The process of extradition of the petitioner from India to Chile
was also the subject matter of consideration in the Republic of Chile.
Section 637 of the Criminal Procedure Code in Chile provides for the
extradition of a fugitive criminal. In terms of this Section, upon receipt
by the Supreme Court of Chile of a request concerning the extradition,
the same shall be remanded to the Court Attorney who will then report
whether the extradition is lawfully proper in accordance with the Treaty
signed by the nation in which the convict is found or otherwise in the
absence of a treaty, with the international law principles.
45. In terms of Section 638 of the Criminal Procedure Code in Chile,
upon the report of the Supreme Court’s Prosecutor, the Supreme Court
shall render a decision whether the extradition is lawful or not.
46. In terms of 639 of the Criminal Procedure Code in Chile, the
Supreme Court shall send to the Ministry of Foreign Affairs a copy of its
decision and ask that relevant diplomatic steps be taken (if necessary) to
obtain the extradition of the offender.
47. Sections 637, 638 and 639 of the Criminal Procedure Code in
Chile read as follows:-
“Section 637 (685) - Upon receipt by the Supreme Court of the docket, it shall
remand the same to the court attorney, who shall decide whether the
extradition is lawfully proper in accordance with the treaties signed by the
nation in which a convict has sought refuge or otherwise, in the absence of a
treaty, with the international law principles.
Section 638 - Upon the Supreme Court’s Prosecutor having issued its report,
W.P. (Crl.) No. 178 of 2015 etc. Page 20 of 69
the Court shall afford priority to the case and render a founded decision on
whether the extradition is lawful or not.
Section 639 (687) - If lawful, the Supreme Court shall send to the Ministry of
Foreign Affairs a copy of the decision referred to in the foregoing paragraph
and ask that the relevant diplomatic steps be taken to obtain the offender’s
extradition.
It shall also enclose a certified copy of the background information on the
merits of which a warrant of arrest was issued against the offender or a final
judgment has been rendered, if dealing with a convict.
Upon completion of these formalities, the Supreme Court shall return the file
to the originating court.”
48. Following the aforesaid procedure, the Supreme Court of Justice
of Chile rendered a decision on 9th March, 2015 in respect of the
extradition of the petitioner in the matter of the assassination of Senator
Jaime Guzman Errazuriz perpetrated on 1st April, 1991. It was held by
the Hon’ble Judges of the Supreme Court that there is no extradition
treaty between Chile and India and therefore for making a request for the
extradition of the petitioner, the general international law principles must
be applied as prescribed in Section 637 of the Criminal Procedure Code.
Thereafter, the general international law principles were broadly
mentioned by the Supreme Court as having been clearly enshrined in the
Havana Convention on 20th February, 1928 and the Montevideo
Convention on Extradition ratified by Chile on 2nd July, 1935 as well as
bilateral treaties on the matter with several countries and opinions by
domestic and foreign doctrine. India is not a signatory to the Havana
Convention or the Montevideo Convention.
W.P. (Crl.) No. 178 of 2015 etc. Page 21 of 69
49. The majority opinion written by four Hon’ble Judges of the
Supreme Court of Justice of Chile specifically held:
“Between Chile and India there is no treaty on extradition; therefore, to make
a decision on the request, the general international law principles must apply,
as prescribed in section 637 of the Criminal Procedure Code.”
50. The dissenting Judge did not specifically disagree with this
conclusion of the majority that there is no extradition treaty between
Chile and India. It must, therefore, be held that the unanimous conclusion
of the Supreme Court of Justice of Chile is that there is no extradition
treaty between the Republic of Chile and the Republic of India.
51. Be that as it may, on the basis on the above conclusions, it was
held that it was lawfully proper to request the Government of India to
extradite the petitioner for her alleged liability as a principal offender in
the terrorist attack perpetrated in Santiago on 1st April, 1991. The
operative portion of the decision of the Supreme Court of Chile reads as
follows:-
“In view also of the provisions in Sections 635, 636, 637, 638 and 639 of the
Criminal Procedure Code, it is hereby stated that it is lawfully proper to
request the Government of India to extradite Marie Emmanuelle Verhoeven for
her alleged liability as Principal Offender in the terrorist attack against a
political authority, leading to the assassination of Senator Jaime Guzman
Errazuriz, perpetrated in Santiago on April 1, 1991, as stated in clause 1 of this
decision.
For fulfillment of this decision, be an official letter sent to the Minister of
Foreign Affairs so that such diplomatic formalities as necessary be carried
out.”
W.P. (Crl.) No. 178 of 2015 etc. Page 22 of 69
52. Pursuant to the decision of the Supreme Court of Chile, another
Note Verbale was given by the Embassy of Chile to the Ministry of
External Affairs on 24th March, 2015. This Note Verbale acknowledged
that the request for the extradition of the petitioner was being made on the
basis of international law principles from multilateral conventions and
bilateral treaties on extradition, among which is included the extradition
treaty between the Republic of Chile and the United Kingdom of Great
Britain and Ireland signed at Santiago on 26th January, 1897 in force for
both countries. On the basis of the provisions contained in the Treaty, the
Note Verbale also drew attention to the resolution of the Supreme Court
of Justice of Chile dated 9th March, 2015, and the arrest warrant issued
against the petitioner on 27th January, 2014 and her indictment on 29th
January, 2014 as a principal offender in the terrorist attack carried out on
1
st April, 1991 that resulted in the assassination of Senator Jaime Guzman
Errazuriz. The Note Verbale dated 24th March, 2015 reads as follows:-
“The Embassy of the Republic of Chile presents its compliments to the
Honourable Ministry of External Affairs of the Republic of India, and has the
honour to request, upon requisition of the Honourable Supreme Court of
Chile, the extradition of the French national MARIE EMMANUELLE
VERHOEVEN, Chilean Identity Card for Aliens No.12.046.818-9, born on
October 8, 1959, on the basis of the principles of international law derived
from the multilateral conventions and bilateral treaties on extradition, among
which is included the Extradition Treaty between the Republic of Chile and
the United Kingdom of Great Britain and Ireland, signed at Santiago on
January 26, 1897, in force for both countries, and complementarily on the
basis of the provisions contained in the said Treaty on such matters as
applicable between Chile and India.
W.P. (Crl.) No. 178 of 2015 etc. Page 23 of 69
This request is made pursuant to the resolution of the Honourable Supreme
Court of Justice of Chile, Case No.3118-2015, in its decision of March 9 of the
current year, by order of the Special Investigating Judge of the Santiago Court
of Appeals, Hon. Mario Carroza Espinosa, in Case No.39.800-1991 of the
former 6th Criminal Court of Santiago, due to infringement of Act No.18.314
on terrorist acts and assassination of Chilean Senator Jaime Guzman Errazuriz.
This Note - accompanying the formal request for extradition - is submitted in
accordance with the applicable regulations contained in the Chilean laws.
Pursuant thereto, the Ministry of Foreign Affairs is primarily responsible for
carrying out the diplomatic formalities involved in an extradition request
granted by Chilean courts of justice, while the latter are the only organs
responsible for the judicial aspects of such requests.
Ms. Verhoeven is subject to an arrest warrant dated January 27, 2014 and a bill
of indictment dated the 29th day of the same month and year, as principal
offender in the terrorist attack carried out on April 1, 1991 that resulted in the
assassination of Senator Jaime Guzman Errazuriz, and is based on the attached
documents, particularly on those mentioned in the annexed index.
All of the documents included in the aforementioned index, certified by the
Judicial Authorities of Chile, are duly authenticated by the Ministry of Justice
of Chile, the Ministry of Foreign Affairs of Chile and the Embassy of the
Republic of India in Chile.
The Government of Chile wishes to reiterate to the Government of the
Republic of India its full willingness to provide the supplementary information
that the competent Indian authorities may deem necessary for the successful
development of this extradition case.
The Embassy of the Republic of Chile avails itself of this opportunity to
convey to the Ministry of External Affairs of the Republic of India the
assurances of its highest consideration and esteem.”
53. Based on the Note Verbale of 24th March, 2015 and the
accompanying documents as well as the notified order dated 28th April,
2015 the Government of India passed an order on 18th May, 2015 noting
that the offences alleged to have been committed by the petitioner are
stated to be extradition offences in terms of the Extradition Treaty
W.P. (Crl.) No. 178 of 2015 etc. Page 24 of 69
between Chile and India. Accordingly, a request was made under Section
5 of the Act to the Additional Chief Metropolitan Magistrate, Patiala
House Courts, New Delhi to inquire whether a prima facie case for the
extradition of the petitioner is made out. Accordingly, the Additional
Chief Metropolitan Magistrate, Patiala House Courts, New Delhi took up
the case for consideration and this led the petitioner to challenge the
notified order of 28th April, 2015 and the order of 18th May, 2015 by filing
W.P. (Crl.) No. 1215 of 2015 in the Delhi High Court.
54. For the purposes of completing the record, it may be stated that a
formal request for the extradition of the petitioner was placed before the
Additional Chief Metropolitan Magistrate, Patiala House Courts, New
Delhi by the Special Public Prosecutor on behalf of the Government of
India on 27th May, 2015.
Proceedings in the High Court
55. The Delhi High Court took up both the writ petitions for
consideration. In its judgment and order dated 21st September, 2015
(impugned before us to a limited extent by the petitioner) the High Court
was prima facie satisfied that the Extradition Treaty was applicable to
British India. However, “since the issue involves complicated questions
of political importance, it appears to us that the same cannot be decided
conclusively on the basis of the limited material available before us.” It
was further held that “the Extradition Treaty executed on behalf of India
W.P. (Crl.) No. 178 of 2015 etc. Page 25 of 69
prior to 15.08.1947 cannot be held to have automatically ceased to exist
after India achieved sovereignty.” The High Court concluded that the
interception of the petitioner on the basis of the Red Notice issued by
Interpol was not illegal but the provisional arrest of the petitioner under
Section 34-B of the Act could not be ordered in the absence of a notified
order under Section 3(1) of the Act. Consequently, the provisional arrest
of the petitioner on 24th February, 2015 was held to be without
jurisdiction.
56. As regards, the validity of the order dated 18th May, 2015
requesting for an inquiry whether the petitioner ought to be extradited or
not, the High Court held as follows:
“71. On a combined reading of Sections 4 and 5 of the Act, it is clear that
the order of the Central Government for Magisterial Inquiry into the
extraditability of the offence committed by the fugitive criminal would
follow upon a request for extradition received from the foreign State
concerned. Thus, the proceedings for extradition would be set in motion
with a request made by the foreign State concerned under Section 4 of the
Act.
72. In the present case, such extradition request under Section 4 of the Act
was made by the Republic of Chile through its Embassy on 24.03.2015.
However, the fact remains that by that date the provisions of the Extradition
Act were not made applicable to the Republic of Chile since the notification
under Sub-section (1) read with Sub-section (3) of Section 3 came to be
published only on 29.04.2015. We have already held that by virtue of the
said notification dated 28.04.2015 published in the Gazette of India dated
29.04.2015, the provisions of the Act are made applicable to the Republic of
Chile w.e.f. 29.04.2015 only. That being so, we are of the view that the
extradition request dated 24.03.2015 cannot be treated as a requisition for
surrender in terms of Section 4 of the Act. In other words, a request made on
or after 29.04.2015 can only be acted upon for directing Magisterial Inquiry
into the extraditability of the alleged offence committed by the petitioner in
W.P. (Crl.) No. 178 of 2015 etc. Page 26 of 69
Chile. Therefore, we are of the view that the first respondent had erred in
passing the order dated 18.05.2015 directing Magisterial Inquiry accepting
the extradition request dated 24.03.2015 of the Republic of Chile. The fact
that the provisions of the Act are made applicable subsequently to the
Republic of Chile by notification dated 28.04.2015 published in terms of
Section 3(1) of the Act, in our considered opinion, is of no consequence.
The extradition request dated 24.03.2015 cannot be held to have been
validated by virtue of the subsequent notification dated 28.04.2015.
73. For the aforesaid reasons, we are of the view that the order of the
respondent No. 1 dated 18.05.2015 under Section 5 of the Act was passed
without there being any valid request for extradition from the Republic of
Chile. Therefore, on that ground itself the order dated 18.05.2015 is liable to
be declared as illegal.”
57. In view of its findings, the High Court declared the provisional
arrest of the petitioner as without jurisdiction and illegal and it was
accordingly set aside; the order for an inquiry under Section 5 of the Act
was also declared illegal and that too was set aside. However, the High
Court made it clear that its decision did not preclude the Government of
India from initiating appropriate steps afresh for the extradition of the
petitioner following the due process of law. It is under these
circumstances that the issues are now before us.
Further developments
58. During the pendency of the writ petitions before the High Court,
certain significant developments occurred that were apparently not
brought to the notice of the High Court. Some further developments after
the decision of the High Court have also been placed before us.
59. For reasons that are not clear, NCB Santiago conveyed a diffusion
W.P. (Crl.) No. 178 of 2015 etc. Page 27 of 69
request on 29th May, 2015.2
This was immediately followed by a
communication from Interpol on 30th May, 2015 cancelling the Red
Notice as well as the diffusion request. The apparent reason for the
cancellation was that the Red Notice was being replaced by another
request.
60. Apparently, in light of the above developments, NCB Santiago
sent a request on 30th June, 2015 to Interpol for the issuance of a Red
Notice. This was followed by NCB Santiago sending a diffusion request
on 1st July, 2015 to secure the attendance of the petitioner pending an
analysis of its request for the issuance of a Red Notice by Interpol. What
is more important is that on 8th July, 2015 the office of the Legal Affairs,
Interpol General Secretariat gave intimation to the effect that the Red
Notice against the petitioner is being reviewed by Interpol and that the
diffusion sent by NCB Santiago was not in conformity with the Interpol
constitution and rules and therefore the diffusion would be deleted from
the Interpol database. A request was also made by Interpol to remove the
information recorded against the petitioner from the national database
based on the diffusion. The intimation sent by the office of the Legal
Affairs of Interpol General Secretariat reads as follows:-
“The General Secretariat hereby is referring to the diffusion circulated
2 A ‘diffusion’ is a “request for cooperation or alert mechanism.” “This is less formal than a notice but
is also used to request the arrest or location of an individual or additional information in relation to a
police investigation. A diffusion is circulated directly by an NCB to the member countries of their
choice, or to the entire INTERPOL membership and is simultaneously recorded in INTERPOL’s
Information System.” [Information obtained from
http://www.interpol.int/INTERPOL-expertise/Notices]
W.P. (Crl.) No. 178 of 2015 etc. Page 28 of 69
by NCB Santiago, Chili, on 1 de July de 2015 against VERHOEVEN
f/n Marie Emmanuelle (DOB 8 October 1959).
Please be advised that a red notice against the same individual for the
same facts and charges it is being reviewed by INTERPOL’s
Commission for Control Files (CCF). The CCF concluded in its latest
session to block the information as a precautionary measure pending its
final conclusion on whether the red notice is compliant with
INTERPOL’s Constitution and rules. Therefore, the diffusion will be
deleted from INTERPOL databases.
You are kindly requested to note that international police cooperation
through INTERPOL’s channels in these cases would not be in
conformity with its Constitution and Rules.
Finally, you are requested to remove from your national databases the
information recorded against the a/m individual based on the
aforementioned diffusion.
The Office of Legal Affairs remains at your disposal for any further
information.”
61. In an affidavit filed in the High Court on or about 28th July, 2015
by the Central Bureau of Investigation (NCB – India Interpol, New Delhi)
in W.P. (Crl.) No.1215 of 2015 it was categorically stated that:
“The result of this communication is that at present Red Corner Notice issued
by INTERPOL HQ and the Diffusion issued by NCB-Chile are not in
existence.”
62. Be that as it may, it appears that pursuant to the analysis carried
out by Interpol on the request of Chile, a fresh Red Notice was issued for
the arrest and extradition of the petitioner by Interpol on 30th October,
2015.
63. Also, as a result of the liberty granted by the High Court, the issue
of the petitioner’s extradition was again taken up by the Republic of
W.P. (Crl.) No. 178 of 2015 etc. Page 29 of 69
Chile. On 21st September, 2015 the Embassy of Chile gave a fresh Note
Verbale requesting for the provisional arrest of the petitioner for the
purpose of her extradition “on the basis of the Principles of International
Law derived from the multilateral conventions and bilateral treaties on
Extradition, among which is included the Extradition Treaty between the
Republic of Chile and the Republic of India in force between both
countries, and complementarily on the basis of the provisions contained in
the said Treaty.”
The Note Verbale of 21st September, 2015 reads as follows:
“The Embassy of the Republic of Chile in India presents its compliments to
the Honourable Ministry of External Affairs of the Republic of India, CPV
Division, and has the honour to request the Provisional Arrest for the purpose
of Extradition of the French National Ms. Marie Emmanuelle VERHOEVEN,
born on October 8, 1959, on the basis of the Principles of International Law
derived from multilateral conventions and bilateral treaties on Extradition,
among which is included the Extradition Treaty between the Republic of Chile
and the Republic of India, in force between both countries, and
complementarily on the basis of the provisions contained in the said Treaty.
It is to be elevated to the highest attention of that Honourable Division the
Judgment passed Monday 21st September, 2015 by the Honourable High Court
of Delhi which in its paragraph number 76, page 46, in the concerned matter
of fugitive, stated that “the respondents have not been precluded to initiate
appropriate steps afresh for extradition of petitioner (FC) by following due
process of law.”
Therefore, since the liberty has already been allowed to Union of India for
initiating afresh steps for extradition of petitioner (FC), it is kindly and
urgently requested to the Union of India to provisional arrest for the purpose
of Extradition of the FC.
The Embassy of the Republic of Chile in India avails itself of this opportunity
to renew to the Honourable Ministry of External Affairs, CPV Division, the
assurances of its highest esteem and consideration.”
W.P. (Crl.) No. 178 of 2015 etc. Page 30 of 69
64. A reading of the Note Verbale makes it quite clear that the request
for the provisional arrest of the petitioner was now made on the basis of
the Extradition Treaty between Chile and India, with India having made
the Extradition Act, 1962 applicable to Chile. This is a significant and
material departure from the earlier Notes Verbales which indicated an
uncertainty of the existence and binding nature of the Extradition Treaty.
65. Thereafter, acting on the Note Verbale an application was moved
by the Government of India for the provisional arrest of the petitioner
under Section 34-B of the Act and the prayer made was granted by the
Additional Chief Metropolitan Magistrate, Patiala House Courts, New
Delhi on 22nd September, 2015.
66. As far as the Republic of Chile is concerned, on 19th October, 2015
its Deputy Special Investigating Judge in the Court of Appeals in and for
Santiago addressed a request to the Supreme Court of Chile “to please
cause that such steps as necessary are taken to initiate an extradition
proceeding” against the petitioner. Acting on the request, the office of the
Prosecutor in the Supreme Court submitted a report of 6th November,
2015. In the report, an examination of all the relevant material was carried
out by the Prosecutor’s office and it was concluded that it was lawfully
proper to request, through diplomatic channels and in accordance with the
extradition treaty between Chile and India, for the extradition of the
petitioner from India.
W.P. (Crl.) No. 178 of 2015 etc. Page 31 of 69
67. In accordance with the laws in Chile, the matter was then
considered by the Supreme Court of Justice of Chile. In its decision
rendered on 11th November, 2015 the Supreme Court gave a finding that
the Extradition Treaty of 26th January, 1897 between the Republic of Chile
and the United Kingdom of Great Britain and Ireland is an existing
Extradition Treaty between Chile and India. This Treaty was ratified by
the parties and enacted in Chile on 14th April, 1898. It was also published
in the Official Gazette in Chile on 22nd April, 1898. As such, it was held
that the Treaty is in full force and effect between the Republic of Chile
and the Republic of India. The Supreme Court also noted that the
provisions of the Extradition Act, 1962 had been made applicable to the
Republic of Chile and therefore from the point of view of the Government
of India also the Extradition Treaty was in force.
68. The Supreme Court noted that two of the Hon’ble Judges in the
Supreme Court of Chile voted for rendering a judgment that supplements
the earlier decision of the Supreme Court given on 9th March, 2015. This
was because that decision had already established the appropriateness of
the request for extradition of the petitioner.
69. Consequently, the Supreme Court of Chile decreed that it was
lawfully appropriate to request the Government of Chile to extradite the
petitioner for the offence alleged against her, namely a terrorist attack
carried out on 1st April, 1991 that resulted in the assassination of Senator
W.P. (Crl.) No. 178 of 2015 etc. Page 32 of 69
Jaime Guzman Errazuriz. On this basis, the Republic of Chile gave a Note
Verbale on 16th November, 2015 with a formal request to the Government
of India for extraditing the petitioner.
70. The extradition request and the accompanying documents were
examined by the Ministry of External Affairs and on 14th December, 2015
an order was issued under Section 5 of the Act requesting the Additional
Chief Metropolitan Magistrate, Patiala House Courts, New Delhi to
enquire into the extradition request made by the Government of Chile in
respect of the petitioner.
71. On the substantive facts mentioned above, the petitioner filed a
writ petition in this Court under Article 32 of the Constitution being W.P.
(Crl.) No.178 of 2015 on or about 29th September, 2015. The prayers
made in the writ petition are for a writ of habeas corpus and a direction
for the petitioner’s release from Tihar Jail, New Delhi; a writ of certiorari
quashing the orders passed by the Additional Chief Metropolitan
Magistrate, Patiala House Courts, New Delhi directing the provisional
arrest of the petitioner under Section 34-B of the Act and for quashing the
extradition proceedings and for other consequential reliefs. The petitioner
also preferred Special Leave Petition (Crl.) No. 8931 of 2015 on or about
13th October, 2015 challenging the correctness of the judgment and order
passed by the Delhi High Court to the extent that it holds that the decision
rendered by the High Court does not preclude the Government of India
W.P. (Crl.) No. 178 of 2015 etc. Page 33 of 69
from initiating appropriate steps for the extradition of the petitioner after
following the due process of law. The petitioner is also aggrieved that the
High Court did not strike down the notified order of 28th April, 2015 or
conclude that there was no extradition treaty between Chile and India.
Discussion on the existence of the Extradition Treaty
72. The primary issue to be decided is whether there exists an
extradition treaty between India and Chile. In other words, the question is
whether the Extradition Treaty entered into on 26th January, 1897 between
the United Kingdom of Great Britain and Ireland with the Republic of
Chile is still in force and binding on India and Chile.
73. This question may first be looked at from the point of view of the
Republic of Chile. It appears, with great respect, that initially there was
some uncertainty in Chile about the existence of the Treaty. This inference
may be drawn from the Note Verbale of 24th February, 2015. In that Note
Verbal it was specifically acknowledged that there is no treaty on
extradition between Chile and India. Therefore, the basis on which a
request for extradition of the petitioner was made by the Government of
Chile to the Government of India was on the basis of reciprocity.
74. The Supreme Court of Chile, in its decision rendered on 9th March,
2015 specifically concluded that there is no extradition treaty between
Chile and India. Consequently, the Supreme Court of Chile held that a
request for extraditing the petitioner should be based on general
W.P. (Crl.) No. 178 of 2015 etc. Page 34 of 69
international law principles such as those enshrined in the Havana
Convention and the Montevideo Convention on Extradition as well as
bilateral treaties between several countries and opinio juris.
75. The subsequent Note Verbale of 24th March, 2015 did not (and
could not) depart from this decision of the Supreme Court of Chile
rendered on 9th March, 2015 that there was no extradition treaty between
Chile and India. The request for extradition of the petitioner was,
therefore, made on the basis of the principles of international law derived
from multilateral conventions and bilateral treaties on extradition “among
which is included is the Extradition Treaty between the Republic of Chile
and the United Kingdom of Great Britain and Ireland signed at Santiago
on 26th January, 1897, in force for both countries.” In any event, Chile
acknowledged the existence of the Extradition Treaty of 26th January,
1897 but it was not clear as far as the Government of Chile is concerned
whether that treaty was binding and in force in India and whether in the
context of bilateral treaties, the reference to ‘both countries’ was to Chile
and the United Kingdom of Great Britain and Ireland.
76. Subsequently however, there was clarity on the issue of the
existence of an Extradition Treaty between Chile and India when the
Supreme Court of Chile rendered its decision on 11th November, 2015.
The decision made it clear that there was in fact an Extradition Treaty
between Chile and India executed on 26th January, 1897 and that it was in
W.P. (Crl.) No. 178 of 2015 etc. Page 35 of 69
force and binding on India. In coming to this conclusion, the Supreme
Court of Chile relied on the notified order issued by the Government of
India on 28th April, 2015 (gazetted on 29th April, 2015) under Section 3(1)
[read with Section 3(3)] of the Act thereby making the Extradition Treaty
of 26th January, 1897 applicable to the Republic of Chile. The Supreme
Court of Chile found this to be conclusive (and, with great respect, quite
rightly) that the intention of the Government of India was to enforce the
Extradition Treaty and make the Act applicable to the Republic of Chile.
77. In addition to this, and perhaps to confirm whether the Republic of
Chile was bound by the Extradition Treaty, the Supreme Court of Chile
noted that it was ratified by the Government of Chile on 14th April, 1898.
Thereafter, it was published in the Official Gazette on 22nd April, 1898.
Therefore, if there was any doubt at all, it was made clear that even the
Government of Chile was bound by the provisions of the Extradition
Treaty.
78. The Supreme Court of Chile found, both from the point of view of
the Government of Chile and the Government of India that there is in
existence and in force a binding Extradition Treaty between the two
countries.
79. Now, the issue may be looked at from the point of view of the
Government of India. Learned counsel relied on the Report of the Expert
Committee No. IX on Foreign Relations particularly paragraphs 42 to 45
W.P. (Crl.) No. 178 of 2015 etc. Page 36 of 69
thereof which relate to existing treaties and engagements between India
and other countries and tribes. He strongly relied upon its contents to
submit that the Extradition Treaty was no longer in existence. The Report
of the Expert Committee No. IX on Foreign Relations is a part of the
Partition Proceedings (Vol. III). In the Preface to this volume by the
Partition Secretariat of the Government of India on 5th December, 1947 it
is stated that the volume has brought together the reports, papers and
decisions on all matters connected with Expert Committees III to IX.
80. In paragraph 42 of the Report, a reference is made to Annexure V
which contains a list of 627 treaties, conventions, agreements etc. entered
into by the Government of India or by H.M.G. in which India or Pakistan
or both are interested. Paragraph 43 of the Report refers to the legal
position, which is that:
“India minus Pakistan will remain the same international entity as she
was before partition. She will continue, in respect of the rest of India, to
be subject to the obligations and entitled to the benefits of all
international engagements to which pre-partition India was a party
either directly or through H.M.G., except those in respect of which she
is rendered by partition incapable of exercising its rights and
performing its obligations. This position will not be affected by any
change in her constitutional set-up or by the acquisition by her of the
status of a Dominion. The position which Pakistan will occupy in this
respect is, however, not altogether clear. If she is regarded as a new
State, one view is that she will not be bound by any treaty to which the
pre-partition India was a party nor will she be entitled to any benefits
thereunder. This conclusion is also supported by the opinion of
international jurists, and according to Sir Thomas Holland –
“In the case of loss of part of territory, the old State continuing to
exist, if the lost part, however separated, becomes an independent
State, it starts free of all general obligations; nor, on the other hand,
W.P. (Crl.) No. 178 of 2015 etc. Page 37 of 69
can it claim any of the general advantages which it enjoyed when
part of the State from which it has been separated.”
81. Thereafter, in paragraph 45 of the Report, the Committee
expressed its inability to pronounce an authoritative opinion on the legal
aspects of the matter in view of the short time available. The Committee
recommended that both Governments (India and Pakistan) should take
steps to obtain expert legal opinion on all aspects of the matter.
82. It was pointed out by learned counsel for the petitioner that
Annexure V to the Report does not mention the Extradition Treaty
between India and Chile although three other extradition treaties are
mentioned. It was submitted, in view of this, that the Expert Committee
on Foreign Relations did not recognize the existence of the Extradition
Treaty between United Kingdom of Great Britain and Ireland and Chile or
indeed between India and Chile.
83. Learned Additional Solicitor General submitted in response that
the list was not exhaustive and the report of the Expert Committee was
subsequently considered by the Steering Committee which gave a note
that it was in substantial agreement with the views expressed by the
Expert Committee and that the conclusions reached by that Committee
should be approved. However, the Steering Committee noted that the
Expert Committee had not been able to reach an agreed decision on the
juridical position on the international personalities of India and Pakistan
and its effect on treaty obligations and membership of International
W.P. (Crl.) No. 178 of 2015 etc. Page 38 of 69
Organizations. Accordingly, the Steering Committee proposed to put up a
separate note for consideration by the Partition Council. The view of the
Steering Committee reads as follows:-
“The report of Expert Committee No. IX appointed to examine the
effect of partition on foreign relation is attached. The Steering
Committee are in substantial agreement with the views expressed
therein and recommend that the conclusions reached by the Committee
be approved.
2. The Expert Committee has been unable to reach an agreed decision
on the juridical position regarding the international personalities of
India and Pakistan (paragraphs 14 and 15) and its effect, if any, on
Treaty Obligations (paragraphs 43 and 44) and membership of
International Organisations (paragraph 47). The Steering Committee
propose to put up separately a note on this subject for consideration by
the Partition Council at a later date.”
84. The Steering Committee was silent about paragraph 42 which
referred to Annexure V containing the list of 627 treaties, conventions and
agreements. Be that as it may, the recommendations of the Steering
Committee were approved by the Partition Council, which also noted that
the Steering Committee would put up a separate note for its consideration
as mentioned.
85. The Steering Committee then put up a note on the juristic position
regarding international personality and treaty obligations. This was with
respect to who inherits the international obligations and corresponding
privileges contracted by the Government of India. The Steering
Committee examined the matter threadbare and gave its conclusions as
follows:-
W.P. (Crl.) No. 178 of 2015 etc. Page 39 of 69
“To sum up, the position in international sphere consequent upon the
setting up of the two new Dominions will be as follows:-
(1) All international obligations assumed by pre-existing India will
devolve on the Dominion of India and that Dominion will be
entitled to the rights associated with such obligations. (In this
category will fall India’s membership of the United Nations.)
(2) All international obligations assumed by the pre-existing India
which have exclusive territorial application to any area comprised
in Pakistan will devolve on the Dominion of Pakistan with all the
rights associated with such obligations.
(3) All international obligations assumed not by the international
entity known as India as such but by His Majesty’s Government
in the United Kingdom acting on behalf of the British overseas
possessions and which have territorial application to India as a
whole will devolve on both the Dominions with all the rights
associated with such obligations.”
86. It is significant that in the body of the note, the Steering
Committee observed that “there may be treaties to which the whole
British Empire is a party and which may have territorial application to
India as a whole. The rights and obligations under such treaties will
likewise be inherited by both the Dominions.”
87. The note given by the Steering Committee was submitted for
consideration of the Partition Council. It was recorded that Mr. Mohd. Ali
did not subscribe to the view set out in the note and that he considered that
the Government of India would disappear altogether as an entity and
would be succeeded by two independent Dominions of equal international
status. The Partition Council then considered the entire issue and in its
decision it was held as follows:-
W.P. (Crl.) No. 178 of 2015 etc. Page 40 of 69
“The Council agreed that the Constitutional Adviser [Mr. Cooke] should
be requested to evolve, if possible, a formula which would meet the case
of both sides. Such a formula, if evolved, would be placed before the
Pakistan and India Cabinets for their approval.”
88. Following upon the decision of the Partition Council, the
Governor-General issued the Indian Independence (International
Arrangements) Order, 1947 on 14th August, 1947 which recorded an
agreement between the Dominion of India and the Dominion of Pakistan.
The Schedule to the Order is important and this reads as follows:-
“SCHEDULE
Agreement as to the devolution of international rights and obligations
upon the dominions of India and Pakistan
1. The international rights and obligations to which India is entitled and
subject immediately before the 15th day of August, 1947, will
devolve in accordance with the provisions of this agreement.
2. (1) Membership of all international organizations together with the
rights and obligations attaching to such membership, will devolve
solely upon the Dominion of India.
For the purposes of this paragraph any rights or obligations arising
under the Final Act of the United Nations Monetary and Financial
Conference will be deemed to be rights or obligations attached to
membership of the International Monetary Fund and to membership of
the International Bank for Reconstruction and Development.
(2) The Dominion of Pakistan will take such steps as may be
necessary to apply for membership of such international
organizations as it chooses to join.
3. (1) Rights and obligations under international agreements having an
exclusive territorial application to an area comprised in the
Dominion of India will devolve upon that Dominion.
W.P. (Crl.) No. 178 of 2015 etc. Page 41 of 69
(2) Rights and obligations under international agreements having an
exclusive territorial application to an area comprised in the
Dominion of Pakistan will devolve upon that Dominion.
4. Subject to Articles 2 and 3 of this agreement, rights and obligations
under all international agreements to which India is a party
immediately before the appointed day will devolve both upon the
Dominion of India and upon the Dominion of Pakistan, and will, if
necessary, be apportioned between the two Dominions.”
89. It is quite clear from the above, that all international agreements to
which India (or British India) was a party would devolve upon the
Dominion of India and the Dominion of Pakistan and if necessary the
obligations and privileges should be apportioned between them. There is
no limitation in the above Order that it is only with regard to the 627
treaties mentioned by the Expert Committee No. IX on Foreign Relations
– the reference is to “all international agreements”. Quite clearly, the
extradition treaty between the United Kingdom of Great Britain and
Ireland and Chile was a part of all the treaties entered into (by India or
British India) and in terms of the above Order the rights and obligations in
that treaty devolved upon the Dominion of India and the Dominion of
Pakistan.
90. That apart and additionally, as already mentioned above, when an
issue was raised in Parliament on 16th March, 1956 by Smt. Ila
Palchoudhury, Prime Minister Shri Jawaharlal Nehru (who was also the
Minister of External Affairs) laid on the table of the House a list of treaties
concluded before Independence on behalf of India and which were still in
W.P. (Crl.) No. 178 of 2015 etc. Page 42 of 69
force. The Extradition Treaty of 26th January, 1897 was included in that
list and therefore as far back as in 1956 (much before the present
controversy arose) the Government of India was of the view that there
was an extradition Treaty with Chile.
91. It will also be useful to recall the debate in Parliament on 7th
August, 1962 on the Extradition Bill when Shri D.C. Sharma, an Hon’ble
Member of Parliament, referred to the existence of a large number of
extradition treaties entered into before 15th August, 1947. One of the
extradition treaties mentioned by the Hon’ble Member was in existence an
Extradition Treaty with Chile.
92. Reference may also be made to Document A/CN.4/229 titled
“Succession of States in respect of bilateral treaties – study prepared by
the Secretariat” of the International Law Commission on the topic of
“Succession of States with respect to treaties”. This document is extracted
from the Yearbook of the International Law Commission 1970, Vol. II.3
The Document notes:
“A considerable number of extradition treaties concluded in the nineteenth and
twentieth centuries are applicable, either automatically or by subsequent
extension, to dependent territories of the parties which later became
independent States. In addition, States parties to extradition treaties have
sometimes undergone changes in international status (constitution of unions or
federations, secession, annexation, restoration of independence, etc.) which
have affected their participation in these treaties.”
93. With reference to India, the Document notes in paragraph 22 that
most of the extradition treaties concluded by the United Kingdom also
3
http://www.un.org/law/ilc/index.htm
W.P. (Crl.) No. 178 of 2015 etc. Page 43 of 69
applied to India. It is noted that in 1956 the Prime Minister of India tabled
a list of treaties with 45 countries. It is further noted that a similar issue
was also raised during the passage of the Extradition Bill and the Minister
of Law took the same position, namely, that extradition treaties concluded
by the United Kingdom remain in effect, despite some argument to the
contrary.
94. Our attention has also been drawn to the Consular Manual
(Revised Edition 1983) issued by the Ministry of External Affairs. This
appears to be an internal document for the benefit of officers of the
Ministry of External Affairs. This makes a reference in Chapter 8 to
Annexure III on extradition treaties with foreign countries executed by the
Government of the United Kingdom on behalf of India prior to January
1938 and still in force. In that list is mentioned the Extradition Treaty with
Chile executed on 26th January, 1897. It may be recalled that the Gazette
of India of 12th November, 1898 reproduced the Order in Council
published in the London Gazette of 12th August, 1898 pertaining to the
Extradition Treaty between the United Kingdom of Great Britain and
Ireland and the Republic of Chile. Therefore, not only was the Extradition
Treaty recognized as binding on the Government of the United Kingdom
of Great Britain and Ireland but also that it was in force in India.
95. In our opinion, there is more than sufficient material to conclude
that from 1897-1898 onwards, the Government of British India and the
W.P. (Crl.) No. 178 of 2015 etc. Page 44 of 69
Government of India considered itself bound by the Extradition Treaty
entered into with the Republic of Chile on 26th January, 1897 and the
Government of India has always been of the view that the Extradition
Treaty is in force in India.
96. Therefore, both from the point of view of Chile and India, the
Extradition Treaty is in existence and binding upon each State.
Proceedings in the International Court of Justice
97. However, learned counsel for the petitioner contended,
notwithstanding this, that the Extradition Treaty was not binding on India,
although the existence of the Treaty might not have been denied. In this
context he relied on the contention advanced on behalf of the
Government of India in the preliminary objection to the assumption of
jurisdiction by the International Court of Justice on Pakistan's application
in the case concerning the Aerial Incident of 10th August, 1999 (Pakistan
v. India) decided on 21st June, 2000.4
98. The view canvassed by the Government of India was that it had
never regarded itself bound by the General Act for the Pacific Settlement
of International Disputes signed at Geneva on 26th September, 1928. This
was specifically stated by the Minister for External Affairs in a
communication addressed to the Secretary General of the United Nations
on 18th September, 1974. Alternatively, it was submitted that the General
Act had been repudiated by the Government of India.
4
ICJ Reports 2000, page 12
W.P. (Crl.) No. 178 of 2015 etc. Page 45 of 69
99. Accepting both the principal submission as well as the alternative
submission, the International Court of Justice held in the majority opinion
in paragraph 28 of the judgment as follows:-
“28. Thus India considered that it had never been party to the General
Act of 1928 as an independent State; hence it could not have been
expected formally to denounce the Act. Even if, arguendo, the General
Act was binding on India, the communication of 18 September 1974 is
to be considered in the circumstances of the present case as having
served the same legal ends as the notification of denunciation provided
for in Article 45 of the Act. On 18 October 1974 the Legal Counsel of
the United Nations, acting on instructions from the Secretary-General,
informed the member States of the United Nations, together with
Liechtenstein, San Marino and Switzerland, of India’s “notification”. It
follows from the foregoing that India, in any event, would have ceased
to be bound by the General Act of 1928 at the latest on 16 August 1979,
the date on which a denunciation of the General Act under Article 45
thereof would have taken effect. India cannot be regarded as party to
the said Act at the date when the Application in the present case was
filed by Pakistan. It follows that the Court has no jurisdiction to
entertain the Application on the basis of the provisions of Article 17 of
the General Act of 1928 and of Article 37 of the Statute.”
On this basis, it was held that the International Court of Justice had no
jurisdiction to entertain the application of Pakistan. The decision of the
International Court of Justice has really no relevance to the facts of the
case before us.
100. Be that as it may, a completely misconceived reliance was
placed by learned counsel for the petitioner on the counter-memorial filed
by the Government of India to the memorial filed by Pakistan in the above
proceedings. In the counter-memorial, a reference was made to a
notification of succession to the General Act of 1928 received by the
W.P. (Crl.) No. 178 of 2015 etc. Page 46 of 69
Secretary-General from the Government of Pakistan on 30th May, 1974. In
response to that notification, the Minister of External Affairs sent a
notification to the Secretary-General on 18th September 1974. Learned
counsel for the petitioner relied upon certain passages from the
notification. The relevant portions of the notification relied on by learned
counsel are underlined by us. The notification says, inter alia the
following:
“. . . 2. In the aforementioned communication, the Prime Minister of Pakistan
has stated, inter alia, that as a result of the constitutional arrangements made at
the time when India and Pakistan became independent, Pakistan has been a
separate party to the General Act of 1928 for the Pacific Settlement of
International Disputes from the date of her independence, i.e. 14th August
1947, since in accordance with Section 4 of the Indian Independence
(International Arrangements) Order 1947, Pakistan succeeded to the rights and
obligations of British India under all multilateral treaties binding upon her
before her partition into the two successor States.
The Prime Minister of Pakistan has further stated that accordingly, the
Government of Pakistan did not need to take any steps to communicate its
consent de novo to acceding to multilateral conventions by which British India
had been bound. However, in order to dispel all doubts in this connection, the
Government of Pakistan have stated that they continue to be bound by the
accession of British India to the General Act of 1928. The communication
further adds that 'the Government of Pakistan does not, however, affirm the
reservations made by British India'.
3. In this connection, the Government of India has the following observations
to make:
(1) The General Act of 1928 for the Pacific Settlement of International
Disputes was a political agreement and was an integral part of the League of
Nations system. Its efficacy was impaired by the fact that the organs of the
League of Nations to which it refers have now disappeared. It is for these
reasons that the General Assembly of the United Nations on 28 April 1949
adopted the Revised General Act for the Pacific Settlement of International
Disputes. (2) Whereas British India did accede to the General Act of 1928, by
a communication of 21 May 1931, revised on 15 February 1939, neither India
W.P. (Crl.) No. 178 of 2015 etc. Page 47 of 69
nor Pakistan, into which British India was divided in 1947, succeeded to the
General Act of 1928, either under general international law or in accordance
with the provisions of the Indian Independence (International Arrangements)
Order, 1947. (3) India and Pakistan have not yet acceded to the Revised
General Act of 1949. (4) Neither India nor Pakistan have regarded themselves
as being party to or bound by the provisions of the General Act of 1928. This
is clear from the following: (a) In 1947, a list of treaties to which the Indian
Independence (International Arrangements) Order, 1947 was to apply was
prepared by ‘Expert Committee No. 9 on Foreign Relations’. Their report is
contained in Partition Proceedings, Volume III, pages 217-276. The list
comprises 627 treaties in force in 1947. The 1928 General Act is not included
in that list. The report was signed by the representatives of India and Pakistan.
India should not therefore have been listed in any record as a party to the
General Act of 1928 since 15 August 1947. (b) In several differences or
disputes since 1947, such as those relating to the uses of river waters or the
settlement of the boundary in the Rann of Kutch area, the 1928 General Act
was not relied upon or cited either by India or by Pakistan. (c) In a case
decided in 1961, the Supreme Court of Pakistan while referring to the Indian
Independence (International Arrangements) Order, 1947 held that this Order
‘did not and, indeed, could not provide for the devolution of treaty rights and
obligations which were not capable of being succeeded to by a part of a
country, which is severed from the parent State and established as an
independent sovereign power, according to the practice of States’. Such
treaties would include treaties of alliance, arbitration or commerce. The Court
held that ‘an examination of the provision of the said Order of 1947 also
reveals no intention to depart from this principle’. (d) Statements on the
existing international law of succession clearly establish that political treaties
like the 1928 General Act are not transmissible by succession or by devolution
agreements. Professor O'Connell states as follows: ‘Clearly not all these
treaties are transmissible; no State has yet acknowledged its succession to the
General Act for the Pacific Settlement of International Disputes’ (1928). (State
Succession in Municipal Law and International Law, vol. II, 1967, page 213.)
See also Sir Humphrey Waldock's Second Report (article 3) and Third Report
(articles 6 and 7) on State Succession submitted to the International Law
Commission in 1969 and 1970, respectively; Succession of States and
Governments, Doc. A/CN.4/149-Add.1 and A/CN.4/150 – Memorandums
prepared by UN Secretariat on 3 December 1962 and 10 December 1962,
respectively; and Oscar Schachter, ‘The Development of International Law
through Legal Opinions of the United Nations Secretariat’, British Yearbook
of International Law (1948) pages 91, 106-107. (e) The Government of
Pakistan had attempted to establish the jurisdiction of the International Court
of Justice in the Trial of Prisoners of War case in May 1973 and in that
connection, as an alternative pleading, for the first time cited the provisions of
the General Act of 1928 in support of the Court's jurisdiction to deal with the
W.P. (Crl.) No. 178 of 2015 etc. Page 48 of 69
matter. Although the Government of India did not appear in these proceedings
on the ground that their consent, required under the relevant treaty, had not
been obtained before instituting these proceedings, their views regarding the
nonapplication of the General Act of 1928 to India-Pakistan were made clear
to the Court by a communication dated 4 June 1973 from the Indian
Ambassador at The Hague.
4. To sum up the 1928 General Act, being an integral part of the League of
Nations system, ceased to be a treaty in force upon the disappearance of the
organs of the League of Nations. Being a political agreement it could not be
transmissible under the law of succession. Neither India nor Pakistan have
regarded themselves as bound by the General Act of 1928 since 1947. The
General Act of 1928 was not listed in the list of 627 agreements to which the
Indian Independence (International Arrangements) Order, 1947 related and
India and Pakistan could therefore not have been listed in any record as parties
to the 1928 General Act. Nor have Pakistan or India yet acceded to the
Revised General Act of 1949.
5. The Government of Pakistan, by their communication dated 30 May 1974,
have now expressed their intention to be bound by the General Act of 1928,
without the reservations made by British India. This new act of Pakistan may
or may not amount to accession to the General Act of 1928 depending upon
their wishes as a sovereign State and the position in international law of the
treaty in question. In view of what has been stated above, the Government of
India consider that Pakistan cannot, however, become a party to the General
Act of 1928 by way of succession under the Indian Independence
(International Arrangements) Order, 1947, as stated by Pakistan.
101. The notification of 30th May, 1974 of the Government of
Pakistan was only with reference to succession by Pakistan to the rights
and obligations of British India to all treaties binding upon her before
partition including, of course, the General Act of 1928. That is all. The
response notification of 18th September, 1974 given by the Minister of
External Affairs to the Secretary-General of the United Nations therefore
confined itself to the General Act of 1928 and the effect of the Indian
Independence (International Arrangements) Order, 1947 and must be
W.P. (Crl.) No. 178 of 2015 etc. Page 49 of 69
appreciated in that context. The Government of India was explicit that it
was not a party and was never bound by the General Act of 1928. That
should have been the end of the matter. However and additionally, the
Government of India brought out that the Supreme Court of Pakistan, in
Messrs. Yangtze (London) Ltd. v. Barlas Brothers5 had taken the view
that “The Indian Independence (International Arrangements) Order, 1947
did not and, indeed, could not provide for the devolution of treaty rights
and obligations which were not capable of being succeeded to by a part of
a country, which is severed from the parent State and established as an
independent sovereign Power, according to the practice of States.”6
In
other words, even the Supreme Court of Pakistan held the view that the
Indian Independence (International Arrangements) Order, 1947 did not
provide for the devolution of treaty rights and obligations to the
Government of Pakistan. She could not, therefore, rely on the General Act
of 1928. It was only this view that was put forward by the Government of
India. The counter-memorial did not contradict or abrogate the Indian
Independence (International Arrangements) Order, 1947 as suggested by
learned counsel for the petitioner.
102. The counter-memorial had nothing to do with any treaty with
any country, much less the Extradition Treaty, nor did it concern itself
with any issue other than the issue of the jurisdiction of the International
5 PLD 1961 SC 573
6 Verbatim record of the public sitting held on 4th April, 2000 in the International Court of Justice
W.P. (Crl.) No. 178 of 2015 etc. Page 50 of 69
Court of Justice to adjudicate the dispute between Pakistan and India in
the context of the General Act of 1928. The contents of the
counter-memorial did not validate the Report of the Expert Committee, as
indeed it could not. This is the error made by learned counsel for the
petitioner in appreciating the proceedings before the International Court of
Justice.
103. Learned counsel for the petitioner also forgets that the Indian
Independence (International Arrangements) Order, 1947 had the effect of
an agreement between the Dominion of India and the Dominion of
Pakistan. These two Dominions did not agree to exclude any treaty,
convention or agreement from the purview of the Indian Independence
(International Arrangements) Order, 1947 as a result of the Partition
Proceedings. Indeed, neither Dominion could wish away the existence of
any pre-Independence treaty. On the contrary, the two Dominions
specifically agreed that the “rights and obligations under all international
agreements to which India is a party immediately before the appointed
day will devolve both upon the Dominion of India and upon the Dominion
of Pakistan.” Therefore, it is not possible to read the exclusion or
elimination of any treaty from the purview of the Indian Independence
(International Arrangements) Order, 1947, much less through the Report
of the Expert Committee. The Extradition Treaty with Chile was very
much included in the arrangement between the Dominion of India and the
W.P. (Crl.) No. 178 of 2015 etc. Page 51 of 69
Dominion of Pakistan with only the question of apportionment kept open,
if necessary.
104. We also cannot overlook the submission of the learned Additional
Solicitor General that the Report of the Expert Committee was not the
final word on the subject under discussion. The Report was considered by
the Steering Committee whose views were then considered by the
Partition Council. It is only thereafter that some finality was reached
through an Order that had the effect of an agreement between the two
Dominions. The list of 627 treaties prepared by the Expert Committee was
not exhaustive nor was it intended to be exhaustive, nor were the views of
the Expert Committee conclusive. They were subject to the decision of the
Partition Council and eventually the Governor-General (reforms). It is for
this reason that the Indian Independence (International Arrangements)
Order, 1947 issued by the Governor-General (Reforms) did not specify
any treaty or treaties but all inclusively referred to the devolution of the
rights and obligations under all international agreements, without
limitation.
105. Finally, as far as extradition treaties generally are concerned, the
provisions of Section 2(d) of the Act have been made applicable to all
such treaties entered into prior to Independence. Nothing could be clearer
or more explicit on the subject.
106. Assuming the report of the Expert Committee limited the
W.P. (Crl.) No. 178 of 2015 etc. Page 52 of 69
agreement between the two Dominions only to 627 pre-Independence
treaties, that could not wipe out the existence of other treaties entered into,
prior to Independence, on behalf of India, including the Treaty mentioned
in the Gazette of India of 12th November, 1898. It is nobody’s case that the
Report of the Expert Committee resulted in the termination or repudiation
of pre-Independence treaties that were acknowledged to be binding on
India. Such a contention completely overlooks the contents of the Indian
Independence (International Arrangements) Order, 1947.
107. That the Extradition Treaty was in existence and it was not
unilaterally terminated or repudiated is also clear from two major overt
acts: firstly, the statement of the Prime Minister in Parliament recognizing
an Extradition Treaty with Chile and secondly, the statutory enactment,
namely, the Extradition Act, 1962 which specifically gave recognition
through Section 2(d) thereof to all extradition treaties entered into prior to
15th August, 1947. If there was any controversy whether the Government
of India recognized itself as bound by the Extradition Treaty, then that was
put to rest by the notified order of 28th April, 2015 under Section 3(1) of
the Act (gazetted on 29th April, 2015 with a corrigendum issued on 11th
August, 2015) whereby the Government of India made the Act applicable
to the Republic of Chile. This left absolutely no manner of doubt that
India was bound by the obligations under the Extradition Treaty. These
public and overt acts after Independence confirm and acknowledge, on
W.P. (Crl.) No. 178 of 2015 etc. Page 53 of 69
behalf of India, the existence and binding nature of the Extradition Treaty
between India and Chile.
108. That apart, this Court has taken the view in Rosiline George v.
Union of India & Ors.7
(relying upon Babu Ram Saksena v. State8
) that
our Independence and subsequent status as a sovereign republic did not
put an end to the treaties entered into prior to 15th August, 1947 by the
British Government on behalf of India. This is what was said in paragraph
26 of the Report:
“It is thus obvious that in Babu Ram Saksena case this Court approved the
proposition of international law that a change in the form of Government of a
contracting State does not put an end to its treaties. India, even under British
rule, had retained its personality as a State under international law. It was a
member of the United Nations in its own right. Therefore, grant of
independence in the year 1947 and thereafter the status of Sovereign Republic
could not have put an end to the treaties entered into by the British
Government prior to August 15, 1947 on behalf of India.”
109. Nothing can be a clearer exposition of the law, particularly with
respect to extradition treaties. What is also of importance is how the
Government of India viewed the factual position in relation to an
extradition treaty. In the factual position before us, did the Government of
India terminate the Treaty or did it recognize its obligations under the
Extradition Treaty? In this context, reference must be made to Article
XVIII of the Extradition Treaty. This reads as follows:-
7
(1994) 2 SCC 80
8
1950 SCR 573 [5 Judges]
W.P. (Crl.) No. 178 of 2015 etc. Page 54 of 69
“The present Treaty shall come into force ten days after its publication in
conformity with the forms prescribed by the laws of the High Contracting
Parties. It may be terminated by either of the High Contracting Parties by a
notice not exceeding one year, and not less than six months.
It shall be ratified, after receiving the approval of the Congress of the Republic
of Chile, and the ratifications shall be exchanged at Santiago as soon as
possible.”
There is nothing to indicate that the Government of India resorted to this
Article to terminate or repudiate the Extradition Treaty. On the contrary,
as mentioned above, the Government of India overtly accepted and
acknowledged the Treaty and even made the Extradition Act applicable to
Chile.
110. Our attention was also drawn to Halsbury’s Laws of England9
wherein it is stated in paragraph 642 with regard to treaties entered into
by the ‘mother state’ on behalf of its colonies as follows:
“642. Territorial application clauses. The position of former colonial
territories with regard to treaties entered into by their mother state, after their
independence, is influenced by the existence in some such treaties of territorial
or colonial application clauses. These in effect permit non-metropolitan
territorial sub-divisions of states to contract in or contract out of treaties
independently of the mother country. Incidentally, therefore, when
self-governing dominions of the Crown eventually achieved statehood the
question whether they succeeded to United Kingdom treaties did not arise,
since they were already parties to them. Similarly, when other British
overseas territories were granted independence, the prime question in relation
to treaties was often not whether those territories succeeded to the treaties, but
whether those treaties already applied to them in their new international
capacities by some territorial clause contained in them.”
A reference was made to India in a footnote to the aforesaid passage, to
the effect that though she was not a self-governing State at the relevant
9 Volume 18(2) 4th Edition
W.P. (Crl.) No. 178 of 2015 etc. Page 55 of 69
time, she was an original member of the United Nations and a party to the
Charter of the United Nations in her own right. In this context, we might
also recall that as far as the Treaty is concerned, India had gazetted it in
the Gazette of India of 12th November, 1898 when it reproduced the Order
in Council, even though India was, at that time, not a self-governing
State.
A political question – alternative view
111. It was submitted by the learned Additional Solicitor General, in
the alternative, that the existence of a treaty is a political question and that
this Court cannot go into the issue whether there is a subsisting and
binding treaty of extradition between India and Chile. Effectively, the
contention is that the word of the Government of India on the existence of
a treaty should be accepted. It is difficult to fully accept the proposition in
the broad manner in which it has been stated.
112. In Sayne v. Shipley10 in a discussion pertaining to the 1903 treaty
between the United States and the Republic of Panama, it was held,
referring to Terlinden v. Ames11 and Ivancevic v. Artukovic12 that the
conduct of foreign affairs is a political function but the advice that a
treaty is still in effect is not conclusive though it is entitled to great
weight and importance. It was said as follows:
“The Assistant Legal Advisor for Treaty Affairs of the State Department has
advised the District Court that Article XVI of the 1903 Treaty is still in effect.
10 418 F.2d 679 [United States Court of Appeals, Fifth Circuit]
11 184 U.S. 270 (1902)
12 211 F.2d 565 [United States Court of Appeals, Ninth Circuit]
W.P. (Crl.) No. 178 of 2015 etc. Page 56 of 69
Because we recognize that the conduct of foreign affairs is a political, not a
judicial function, such advice, while not conclusive on this Court, is entitled to
great weight and importance. It is the general rule that the courts will accord
great, but not binding, weight to a determination by the Executive Department
that a treaty is terminated, at least when private rights are involved.”
113. In Terlinden it was held that: “… on the question whether this
treaty [the treaty between the United States of America and the Kingdom
of Prussia concluded on 16th June, 1852 and ratified on 30th May, 1853]
has ever been terminated, governmental action in respect to it must be
regarded as of controlling importance.”
114. In Jhirad v. Ferrandina13 the Government of India sought the
extradition of an Indian citizen from the United States, relying on the
1931 extradition treaty between the two countries. It was held as follows:
“Whether an extradition treaty exists is an issue with major foreign policy
implications and one which does not easily fall within the sphere of the
Judicial Branch of Government. Thus, it is that courts have given great weight
to the position taken by the Executive Branch concerning the validity of
extradition treaties. In Sayne v. Shipley, the Fifth Circuit said:
“Because we recognize that the conduct of foreign affairs is a political,
not a judicial function, such advice from the Executive Branch], while
not conclusive on this Court, is entitled to great weight and importance.”
In the case at bar, the United States, through the Acting Secretary of State,
certified on August 14, 1972, that “the treaty of extradition between the United
States and India is therefore considered a good subsisting and binding
convention between the United States and India.” Further, the Executive
Branch strongly indicated its continuing affirmation of the Treaty when (in
July of 1967), in conjunction with a prior extradition between the United
States and India, notes were exchanged between the two Governments.
The position of the Executive Branch, though persuasive, is not conclusive.
The Court must evaluate the facts concerning the Treaty on its own.”
13 355 F. Supp. 1155 [S.D.N.Y. 1973]
W.P. (Crl.) No. 178 of 2015 etc. Page 57 of 69
115. There are a few other decisions on the subject, but there is none
that crystallizes the extent to which the judiciary can go in the matter of
determining whether a treaty is subsisting or not. The matter is certainly
not free from doubt, but it does appear that there cannot be complete
judicial abstinence in the matter as mentioned in Sayne.
116. In Baker v. Carr14 the United States Supreme Court (though not
dealing with extradition) observed that it would be erroneous to say that
every case relating to foreign relations lies beyond judicial cognizance.
Reference was made to Terlinden and ‘governmental action’ on the
subject. This is what the Court had to say about judicial review and
foreign relations:
“Foreign relations: there are sweeping statements to the effect that all
questions touching foreign relations are political questions. Not only does
resolution of such issues frequently turn on standards that defy judicial
application, or involve the exercise of a discretion demonstrably committed to
the executive or legislature, but many such questions uniquely demand
single-voiced statement of the Government's views. Yet it is error to suppose
that every case or controversy which touches foreign relations lies beyond
judicial cognizance. Our cases in this field seem invariably to show a
discriminating analysis of the particular question posed, in terms of the history
of its management by the political branches, of its susceptibility to judicial
handling in the light of its nature and posture in the specific case, and of the
possible consequences of judicial action. For example, though a court will not
ordinarily inquire whether a treaty has been terminated, since on that question,
"governmental action . . . must be regarded as of controlling importance," if
there has been no conclusive "governmental action," then a court can construe
a treaty, and may find it provides the answer. Compare Terlinden v. Ames, 184
U.S. 270, 285, with Society for the Propagation of the Gospel in Foreign Parts
v. New Haven, 8 Wheat. 464, 492-495.”
14 369 U.S. 186
W.P. (Crl.) No. 178 of 2015 etc. Page 58 of 69
117. As far as we are concerned, in Rosiline George this Court made a
reference to a decision of the Supreme Court of the United States in Tom
C. Clark v. Alvina Allen15 wherein it was held that whether a State is in a
position to perform its treaty obligations is essentially a political question.
This view has been accepted by Justice Sathasivam in Abu Salem Abdul
Qayoom Ansari v. State of Maharashtra.
16
118. It was also observed in Rosiline George that whether a treaty has
been terminated by a State is essentially a political question. It was
observed:
“Whether a treaty has been terminated by the State is essentially a political
question. The governmental action in respect to it must be regarded as of
controlling importance. So far as India and the United States of America are
concerned, it is amply evidenced by their actions that the two States fully
recognise their obligations under the 1931 treaty.”
119. Although this may not necessarily be a fully accurate statement of
the law, we leave it at that since the issue does not arise in these cases. In
any event, we leave these issues of termination of a treaty or performance
of treaty obligations being political questions to be decided in an
appropriate case. However, we can say that it does appear though, that the
reason for terminating an extradition treaty would be a political question,
so also whether India should enter into an extradition treaty with a foreign
State and whether India should issue a notified order under Section 3(1)
of the Act making the Act applicable to a foreign State would also be a
15 331 U.S. 503, 518
16 (2011) 11 SCC 214
W.P. (Crl.) No. 178 of 2015 etc. Page 59 of 69
political decision. But whether a treaty exists between India and a
foreign State may not necessarily be a political question or a political
decision – a lot depends on ‘governmental action’ which would certainly
be of ‘controlling importance’ though not conclusive. Nevertheless, we
are clear that if the Executive were to inform the Court that there exists a
treaty between India and a foreign State, the Court would defer to the
decision of the Executive and would not ordinarily question the
information.
Applicability of Section 34-B of the Act
120. It was submitted by learned counsel for the petitioner that the
detention and provisional arrest of his client on 22nd September, 2015
under Section 34-B of the Act soon after the judgment of the High Court
was illegal. It was submitted that there was no request from Interpol to
detain and arrest the petitioner and therefore there was no occasion for
her arrest particularly since the proceedings against her had been quashed
by the High Court the previous day in its judgment dated 21st September,
2015. We are not inclined to accept this submission.
121. It is not at all necessary that the arrest of a foreign national for a
crime committed outside India can only be on the basis of a Red Notice.
It is true that in Bhavesh Jayanti Lakhani v. State of Maharashtra &
Ors.17 it was explained that a Red Notice is issued to seek the provisional
arrest of a wanted person. It is not a warrant of arrest. It is a request made
17 (2009) 9 SCC 551
W.P. (Crl.) No. 178 of 2015 etc. Page 60 of 69
by the NCB to Interpol Headquarters for the provisional arrest of a person
wanted for extradition and against whom a national or international court
has issued a warrant of arrest. It is another matter that a Red Notice
issued by Interpol acts as a de facto international arrest warrant.
However, this is subject to the condition that a request for extradition,
along with necessary evidence, would be produced by the requesting
State without delay.
122. But the absence of a Red Notice does not preclude the
Government of India from arresting a fugitive criminal and producing
him or her before a Magistrate in accordance with law. Thereafter, the
provisions of Section 34-B of the Act can be brought into play, provided
there is an urgent request from a foreign State for the provisional arrest of
a fugitive criminal. This is precisely what transpired in the present case
when the Embassy of Chile made an urgent request through the Note
Verbale of 22nd September, 2015 for the arrest of the petitioner. That Note
Verbale was acted upon by the Government of India and an application
moved before the Additional Chief Metropolitan Magistrate, Patiala
House Courts, New Delhi who granted the prayer for the provisional
arrest of the petitioner. No illegality or irregularity can be found in the
procedure adopted for the provisional arrest of the petitioner.
123. Learned counsel for the petitioner submitted that the petitioner’s
arrest under Section 34-B of the Act could be made only on a request
W.P. (Crl.) No. 178 of 2015 etc. Page 61 of 69
from a foreign State (as mentioned in the Section) and not by a
representative of a foreign State or even the Embassy of a foreign State.
This argument is stated to be rejected. Section 2(e) of the Act defines a
foreign State to mean any State outside India and it includes every
constituent part, colony or dependency of such State. A request made by
the Embassy of a foreign State is as good as a request made by the
foreign State itself. If this is not accepted, it will lead to an absurd
situation where the Head of State or the Head of the Government of a
foreign State would be required to make a request for extradition. This is
simply not an acceptable proposition.
Extradition and reciprocity
124. The principle of reciprocity has quite an ‘ancient’ history. As
noted in the Final Report of the International Law Commission (2014) on
“The obligation to extradite or prosecute” (aut dedere aut judicare):
“The role the obligation to extradite or prosecute plays in supporting
international cooperation to fight impunity has been recognized at least since
the time of Hugo Grotius, who postulated the principle of aut dedere aut
punire (either extradite or punish): “When appealed to, a State should either
punish the guilty person as he deserves, or it should entrust him to the
discretion of the party making the appeal.” The modern terminology replaces
“punishment” with “prosecution” [aut dedere aut judicare] as the alternative
to extradition in order to reflect better the possibility that an alleged offender
may be found not guilty.”18
In other words, if a State is unwilling to extradite a fugitive criminal, it
should undertake the responsibility of prosecuting him or her, the theory
18 Hugo Grotius lived from 1583 to 1645
W.P. (Crl.) No. 178 of 2015 etc. Page 62 of 69
being that a criminal should not go unpunished. The
prosecute-or-extradite regime received the imprimatur of the International
Court of Justice in the case concerning Questions relating to the
Obligation to Prosecute or Extradite (Belgium v. Senegal)19 in the
context of the Convention against Torture, but “the Court’s ruling may
also help to elucidate the meaning of the prosecute-or-extradite regime
under …. other conventions” which have followed the same formula as
the 1970 Hague Convention for the Suppression of Unlawful Seizure of
Aircraft.20
125. In Rosiline George there is a discussion on extradition. It is
mentioned in the paragraph 16 of the Report that extradition denotes the
process whereby under a concluded treaty, one State surrenders to any
other State at its request, a person accused or convicted of a criminal
offence committed in contravention of the laws of the requesting State,
such requesting State being competent to try the alleged offender.
“Extradition is founded on the broad principle that it is in the interest of
civilized communities that criminals should not go unpunished and on
that account it is recognized as a part of the comity of nations that one
State should ordinarily afford to another State assistance towards bringing
offenders to justice.”
In Terlinden, it was said:
19 Judgment of 20th July, 2012; I.C.J. Reports 2012, p. 422
20 Paragraph 65(15) of the above Report of the International Law Commission
W.P. (Crl.) No. 178 of 2015 etc. Page 63 of 69
“Extradition may be sufficiently defined to be the surrender by one nation to
another of an individual accused or convicted of an offence outside of its own
territory, and within the territorial jurisdiction of the other, which, being
competent to try and punish him, demands the surrender.”
126. The discussion on extradition by Justice Ganguly in Abu Salem is
not only very erudite but also very instructive. The learned Judge noted
that doctrinally speaking extradition has five substantive ingredients:
reciprocity; double criminality; extraditable offence; speciality and
non-inquiry. For the present purposes, it is not necessary to deal with each
ingredient.
127. Suffice it to say that it is on the basis of reciprocity that the
Republic of Chile first sought the extradition of the petitioner as
mentioned in the Note Verbale of 24th February, 2015. The same principle
of reciprocity was resorted to by the Government of India when it sought
the extradition of Abu Salem from Portugal, although the request made by
the Government of India to Portugal sought his extradition also by relying
on the International Convention for the Suppression of Terrorist
Bombings. Justice Ganguly, however, points out in paragraph 63 of the
Report that “The primary consideration for the request of extradition was
the assurance of reciprocity.”
128. For invoking the principle of reciprocity, there need not even be
an extradition treaty between India and the foreign State as is apparent
from a reading of the decision of this Court in Abu Salem. In fact, India
did not have any extradition treaty with Portugal and yet it made a request
W.P. (Crl.) No. 178 of 2015 etc. Page 64 of 69
for the extradition of Abu Salem on the basis of reciprocity. It is only
around the time that the request was made that the Government of India
issued a notified order under Section 3(1) of the Act directing that the
provisions of the Extradition Act, 1962 other than Chapter III shall apply
to the Republic of Portugal.
129. We are, therefore, in agreement with the submission of the learned
Additional Solicitor General that on the basis of a request made by Chile
as contained in the Note Verbale of 22nd September, 2015 the petitioner
could have been validly detained and placed under provisional arrest
under Section 34-B of the Act, on a reciprocal basis, Extradition Treaty or
no Extradition Treaty between India and Chile. The further requirement
(in terms of Section 34-B of the Act) would however be for Chile to make
a formal request for extraditing the petitioner from India on the basis of
credible evidence against her of having committed an extradition offence
punishable both in Chile as well as in India.
Subsidiary issues
130. It was also submitted by learned counsel that the Government of
India had not applied its mind at all when the Act was made applicable to
the Republic of Chile. This argument is also without any basis and
learned counsel has not pointed out or suggested any general or specific
procedure that the Government of India should follow for making the Act
applicable to a foreign State, except the issuance of a notified order under
W.P. (Crl.) No. 178 of 2015 etc. Page 65 of 69
Section 3(1) of the Act. Admittedly, such a notified order has been issued
in respect of the Republic of Chile and the natural presumption is that this
official act has been done after due application of mind. In any event,
whether the Extradition Act is to be made applicable to a foreign State or
not is entirely a political decision to be taken by the Government of India
and there must be judicial abstinence in this regard. We have no doubt
that this is an area that cannot be the subject matter of judicial review.
131. It was also submitted that the High Court ought not to have given
liberty to the Government of India to once again initiate the process of
extradition. The submission is misplaced. It is really for the Republic of
Chile to decide whether it would like to have the petitioner extradited or
not. The Government of India has no say in the matter. The Republic of
Chile decided to renew its request for the extradition of the petitioner in
November, 2015. The Government of India chose not to ignore that
request but to act upon it. That is a political or diplomatic decision that
the Government of India took. The petitioner has no say in the matter and
judicial abstinence on such an issue prevents us from commenting on the
decision.
Dissemination of information
132. Finally, learned counsel for the petitioner commented on the
dissemination of information by the Ministry of External Affairs through
its official website. It was pointed out that the official website informs
W.P. (Crl.) No. 178 of 2015 etc. Page 66 of 69
everybody that India had entered an extradition treaty with Chile in 2015.
Learned counsel relied on this information to contend that the
Government of India does not recognize the Extradition Treaty of 1897
and there is no extradition treaty entered into with Chile in 2015.
Consequently, the entire proceedings against the petitioner are vitiated.
133. It is extremely unfortunate that the official website of the Ministry
of External Affairs gives misleading information not only to Indians but
also to the world at large. The learned Additional Solicitor General was
quite upset at the misleading information given on the official website
and informed us that he had given a piece of his mind to the concerned
officials in the Ministry. Whether amends have been made by the
Ministry of External Affairs and whether the advice given by the learned
Additional Solicitor General has been taken by the Ministry of External
Affairs in the right spirit or not does not concern us. All that we need say
is that in this day and age when communication and communication
technology are so important, the Ministry of External Affairs has to be far
more careful in the information that it disseminates to the world at large.
134. We may also note the relaxed attitude of the Ministry of External
Affairs as evidenced by the manner in which the notified order dated 28th
April, 2015 was drafted by it. The text of the notified order leaves much
to be desired. We have already pointed out three errors in the notified
order, none of which should have occurred at all. The errors only show
W.P. (Crl.) No. 178 of 2015 etc. Page 67 of 69
the laid-back manner in which the Ministry of External Affairs conducts
its internal affairs. To make matters worse, the corrigendum gazetted on
11th August, 2015 fails to correct the error in the earlier notified order
where the Extradition Act, 1962 is referred to as the Indian Extradition
Act, 1962. It is time that the Ministry of External Affairs gets over the
colonial hangover. Though the error is minor and not substantive, it
should not have been there at all. We need say nothing more on this
subject except to be optimistic and hope that the Ministry of External
Affairs of the Government of India takes matters of law far more
seriously than is evident from the material on record before us.
135. It is time to realize that India is now a significant and important
player in the world stage. Very little attention appears to have been paid
to affairs of international law as is evident from the manner in which the
affidavits have been drafted and filed by the Government of India not
only in the Delhi High Court but also in this Court. Most of the relevant
material handed over to us in Court by the learned Additional Solicitor
General did not form a part of any affidavit filed by the Government of
India. True, there is no dispute about the authenticity of the material
handed over to us in Court but that is not the issue. What is in issue is the
nonchalant response of the Government of India on a matter concerning
the liberty of an individual, even if that individual happens to be a foreign
national who is in India.
W.P. (Crl.) No. 178 of 2015 etc. Page 68 of 69
Conclusion
136. On the basis of the material before us, we hold that there is a
binding extradition treaty between India and Chile and that the provisions
of the Extradition Act, 1962 (other than Chapter III thereof) are
applicable to the Republic of Chile in respect of the offences specified in
the Extradition Treaty.
137. The extradition proceedings pertaining to the petitioner are
pending before the Additional Chief Metropolitan Magistrate, Patiala
House Courts, New Delhi. We make it clear that we have not pronounced
on the merits of the controversy pending before him and have confined
our consideration only to the existence or otherwise of the Extradition
Treaty between India and Chile. The learned Magistrate should decide on
the extradition of the petitioner on the merits of the case and the evidence
before him. Any observations incidentally made by us on the merits of the
extradition requisition will not bind the learned Magistrate for the
purposes of the final outcome of the proceedings.
138. The writ petition and the criminal appeal are dismissed. No costs.
.………………….J
(Madan B. Lokur)
New Delhi; ………………….J
April 28, 2016 (N.V. Ramana)
W.P. (Crl.) No. 178 of 2015 etc. Page 69 of 69
advocatemmmohan
- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws
Friday, May 13, 2016
whether there is a binding extradition treaty in terms of Section 2(d) of the Extradition Act, 1962 between India and Chile=we hold that there is a binding extradition treaty between India and Chile and that the provisions of the Extradition Act, 1962 (other than Chapter III thereof) are applicable to the Republic of Chile in respect of the offences specified in the Extradition Treaty. 137. The extradition proceedings pertaining to the petitioner are pending before the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi
