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TMI Blog2016 (4) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 mentioned in Section 26 of the 1870 Act read as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 9th August, 1898 and this was published in the London Gazette on 12th August, 1898. Both the Order in Council and the London Gazette 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 (I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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. (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 Conven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 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 Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidity 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 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 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner 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 Verbale on 24th February, 2015 to the Ministry of Ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 Code of Criminal Procedure. Thereafter, the general inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 1st 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 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 Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graph 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." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged against her, namely a terrorist attack carried out on 1st April, 1991 that resulted in the assassination of Senator 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est 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 force and binding on India. In coming to this conclusion, the Supreme Court of Chile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tary 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. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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, Vo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights 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 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 treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 England Volume 18(2) 4th Edition 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. Ferrandina 355 F. Supp. 1155 [S.D.N.Y. 1973] 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 Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Allen 331 U.S. 503, 518 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 (2011) 11 SCC 214. 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70 Hague Convention for the Suppression of Unlawful Seizure of Aircraft Paragraph 65(15) of the above Report of the International Law Commission 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: 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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