The Supreme Court on July 11 held that the Centre was “bound to advise” the President of India to remit the life sentence of gangster Abu Salem in the 1993 Mumbai blasts case on his completion of 25 years of his jail term in view of the national commitment made to Portugal during his extradition.
The 25-year period would be calculated from his detention on October 12, 2005. “On the appellant [Salem] completing 25 years of his sentence, the Central government is bound to advise the President for the exercise of his powers under Article 72 of the Constitution and to release the appellant in terms of the national commitments and the principles based on the comity of courts,” Justice Sanjay Kishan Kaul, heading the Bench, ordered in the judgment.
The papers should be forwarded to the President within a month of Salem completing the 25-year period.
The Centre could itself consider remission on the completion of 25 years’ sentence in terms of Sections 432 and 433 of the Code of Criminal Procedure.
The court, however, declined to calculate the 25-year timeline from September 18, 2002 when Salem was detained in Portugal for a different offence.
“The criminal law of the land does not have extra-territorial application,” it noted. The court also referred to the fact that Salem had a Red Corner Notice issued against him.
Separation of powers
It also refused to commute the life sentence awarded to Salem, saying the domestic courts of India were not bound by the treaties between the governments of Portugal and India. The Indian law followed the principle of separation of powers.
Salem had argued that he should not have been punished with life sentence considering the sovereign assurance given by India to Portugal during his extradition.
“Punishment cannot be disproportionately high or low. It should not be oppressive, but should serve the purpose of deterrence against crime in society along with serving justice to the victims and their families... Looking at the gravity of the offence, there is no question of this court exercising any special power to commute his sentence,” the court emphasised.
‘International ramifications’
The case had triggered concern in the Supreme Court about the “international ramifications” India may face if seen to renege on “solemn” promises made to foreign powers and their courts while securing an extradition.
Salem’s case was built around his argument that his life sentence was illegal as the then Deputy Prime Minister and Home Minister L.K. Advani had given a “solemn sovereign assurance” to a Portugal court that he would neither be sentenced to death nor serve more than 25 years in prison.
‘Advani’s assurance not a guarantee’
However, the Central Bureau of Investigation, in a recent affidavit, had maintained that Mr. Advani’s assurance was no guarantee.
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In fact, an affidavit filed by Union Home Secretary Ajay Kumar Bhalla had urged the court to focus on deciding Salem’s appeal against his conviction and life sentence in the Mumbai blasts case on its merits rather than take into consideration any “assurance” given by India to Portugal.
The court, while reserving its judgment in the case in April, had expressed its displeasure at the government for “hemming and hawing” over its solemn assurance to Portugal.
The Bench had remarked that the government ought to have taken an “unequivocal stand” now on whether it would or not abide by the assurance given to the foreign country.
