2016 (4) TMI 1451 - SC - Indian Laws

Existence of binding extradition treaty in terms of Section 2(d) of the Extradition Act, 1962 between India and Chile or not - principle of reciprocity - general principles of international law for extraditing the Petitioner from India. HELD 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. Attention 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. There is more than sufficient material to conclude that from 1897-1898 onwards, the Government of British India and the 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 - 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 - HELD THAT - 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 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. 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 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. 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 behalf of India, the existence and binding nature of the Extradition Treaty between India and Chile. A political question - alternative view - 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 - HELD THAT - In Sayne v. Shipley in a discussion pertaining to the 1903 treaty between the United States and the Republic of Panama, it was held, referring to Terlinden v. Ames and Ivancevic v. Artukovic 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. 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. Thus, 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 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 - HELD THAT - 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 - HELD THAT - 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 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. 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. Thus, it is concluded that - i). 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. ii). The extradition proceedings pertaining to the Petitioner are pending before the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi. Petition dismissed.

Summary

Issues Involved:
1. Existence of a binding extradition treaty between India and Chile.
2. Validity of the provisional arrest of the Petitioner under Section 34-B of the Extradition Act, 1962.
3. Applicability of the principle of reciprocity for extradition.
4. Government of India's procedural adherence in making the Extradition Act applicable to Chile.
5. Judicial review of the Government's decision on the existence of a treaty.
6. Dissemination of information by the Ministry of External Affairs.

Issue-wise Detailed Analysis:

1. Existence of a Binding Extradition Treaty Between India and Chile:
The primary issue was whether there is a binding extradition treaty between India and Chile as per Section 2(d) of the Extradition Act, 1962. The Court concluded affirmatively, noting that the Extradition Treaty signed on 26th January 1897 between the United Kingdom of Great Britain and Ireland and the Republic of Chile remains in force and is binding on India. This conclusion was supported by historical documents, parliamentary records, and the International Law Commission's reports. The Indian Independence (International Arrangements) Order, 1947, which devolved international rights and obligations to India and Pakistan, further supported this view. The Court also referenced the Prime Minister's statement in 1956 and the Extradition Act, 1962, which recognized treaties made before 15th August 1947.

2. Validity of the Provisional Arrest of the Petitioner Under Section 34-B of the Extradition Act, 1962:
The Court found no illegality in the provisional arrest of the Petitioner on 22nd September 2015 under Section 34-B of the Act. The arrest was based on an urgent request from the Embassy of Chile, which is considered equivalent to a request from the foreign State itself. The Court rejected the argument that the arrest could only be made based on a Red Notice from Interpol, stating that the absence of a Red Notice does not preclude the Government of India from arresting a fugitive criminal.

3. Applicability of the Principle of Reciprocity for Extradition:
The Court acknowledged the principle of reciprocity in extradition, which has a long-standing history. It noted that even in the absence of an extradition treaty, the principle of reciprocity allows for the extradition of a fugitive criminal. This principle was invoked by both India and Chile in their respective requests for extradition. The Court referenced the case of Abu Salem, where India sought extradition from Portugal based on reciprocity.

4. Government of India's Procedural Adherence in Making the Extradition Act Applicable to Chile:
The Court dismissed the argument that the Government of India had not applied its mind when making the Extradition Act applicable to Chile. It held that the issuance of a notified order under Section 3(1) of the Act is a political decision and not subject to judicial review. The Court emphasized that the Government's decision to make the Act applicable to a foreign State is a political or diplomatic decision.

5. Judicial Review of the Government's Decision on the Existence of a Treaty:
The Court noted that while the existence of a treaty is a political question, the judiciary can still review the Government's decision. However, it emphasized that the Government's word on the existence of a treaty is entitled to great weight and importance. The Court referred to international cases and domestic precedents to support this view.

6. Dissemination of Information by the Ministry of External Affairs:
The Court criticized the Ministry of External Affairs for providing misleading information on its official website, which stated that India had entered into an extradition treaty with Chile in 2015. The Court emphasized the importance of accurate communication, especially in international law matters, and urged the Ministry to be more careful in disseminating information.

Conclusion:
The Court held that there is a binding extradition treaty between India and Chile and that the provisions of the Extradition Act, 1962 are applicable to Chile. The Court dismissed the writ petition and the criminal appeal, clarifying that it had not pronounced on the merits of the extradition proceedings, which are to be decided by the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi.