The issue of honouring India’s assurance to Portugal while extraditing gangster Abu Salem that he will not be sentenced to death or life imprisonment in the 1993 Mumbai serial blasts will arise only in the year 2030, the Ministry of Home Affairs has told the Supreme Court.
Salem, represented by advocate Rishi Malhotra, was extradited from Portugal when India gave an assurance on December 17, 2002 that he would neither face death penalty nor imprisonment for over 25 years here
Salem has approached the Supreme Court, claiming India has violated the sovereign assurance by sentencing him to life imprisonment in the case.
In a counter-affidavit, Union Home Secretary Ajay Kumar Bhalla said Salem’s contentions were premature and based on hypothetical surmises. Mr. Bhalla said such contentions could not be raised in an appeal against his conviction in the blasts case.
“The question of honouring an assurance given on December 17, 2002 would arise only when the period of 25 years is to expire. That date is November 10, 2030... The period of 25 years mentioned in the assurance will be abided by the Union of India at the appropriate time subject to the remedies which may be available,” the government responded.
Countering Salem’s argument that his life sentence was contrary to the sovereign assurance given by the Union of India, Mr. Bhalla said courts decided cases independently of such assurances made by the government in the exercise of its executive functions. The courts mete out punishments for crimes in accordance with the law of the land.
“Judiciary is independent in deciding all cases, including criminal cases, in accordance with the law applicable without being in any way bound by any position taken by the executive,” the affidavit said.
The “executive assurance” to not sentence Salem to death or imprisonment beyond 25 years was given by one country to another in exercise of its executive functions, it noted.
The government said Salem was found guilty and sentenced after an elaborate trial. He has been found guilty in court of “serious terrorists offences which led to serial blasts at places of strategic importance in Mumbai”.
The blasts were “undoubtedly a dastardly act conducted with premeditation and the appellant (Salem) played a very active role”.
He was an absconder and was brought to India under the Extradition Act of 1962. India and Portugal are signatories of the international convention for the suppression of terrorist bombing.
Salem’s 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 while securing an extradition.
Salem was arrested in Portugal and extradited to India. He had argued that then Deputy Prime Minister and Home Minister L.K. Advani had given the “solemn sovereign assurance” to Portugal.
However, the Central Bureau of Investigation (CBI), in a recent affidavit, had maintained that Mr. Advani’s assurance was no guarantee.
“The solemn sovereign assurance given by the then Deputy Prime Minister of India cannot be construed as a guarantee/undertaking to assure that no court in India would award the punishment provided by Indian laws in force to the accused Abu Salem... The argument of the appellant (Salem) that imprisonment term cannot extend beyond 25 years as per the assurance given is legally unsustainable,” the CBI had claimed in the Supreme Court.
