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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 ..... e 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 Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. - Hon'ble Judges Madan B. Lokur and N.V. Ramana, JJ. For the Appellant : C. Aryama Sundaram, Chander Uday Singh, Sr. Advs., Ramni Taneja, Rohini Musa, Abhishek Gupta, Zafar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile and some general principles of international law were also placed before 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 cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stering 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e between the Dominion of India and the Dominion of Pakistan and came into effect from 15th August, 1947. The agreement was reached on 6th August, 1947 but the notification was issued on 14th August, 1947. 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. 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, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 extradit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nferred 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um 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 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 avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Code of Criminal Procedure 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 Code of Criminal Procedure in Chile, upon the report of the Supreme Court's Prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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. 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 Code of Criminal Procedure . 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 arres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 request on 29th May, 2015. 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 choic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 uncertaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthoritative 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gations. (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: The Council agreed that the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... national 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) 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, 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gendum 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. 108. That apart, this Court has taken the view in Rosiline George v. Union of India and Ors. (1994) 2 SCC 80 (relying upon Babu Ram Saksena v. State 1 950 SCR 573 [5 Judges]) 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. Carr 369 U.S. 186 the United States Supreme Court (though not dealing with extradition) observed that it would be erroneous to say tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legality 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvicted 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven 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 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. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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