Two incidents – the demise of my friend Banbit Roy in New Delhi recently and the Supreme Court of India asking the Home Secretary to file an affidavit about the death penalty issue in the Abu Salem case – pushed me to write this article. Salem is currently serving a life sentence for the serial bomb blasts in Mumbai in 1993.
Banbit Roy, a Foreign Service officer, was the Joint Secretary in the Ministry of External Affairs (MEA) and I was in the Central Bureau of Investigation (CBI). We had netted Abu Salem in Lisbon, Portugal. Banbit and my relationship had started in a blow-hot, blow-cold manner as we had not been able to make any headway for two days in treaty negotiations with Ukraine, whose President, Leonid Kuchma, was scheduled to visit India shortly, and treaties on extradition and mutual legal assistance were slated to be signed. Then, learning about my recently concluded MEA stint, Banbit asked me to lead the negotiations, and within the next two days, we smoothly finalised the two texts, which are testimony to the strong India-Ukraine relations. Our relations warmed- up, too.
Many Hurdles
The Portuguese constitution prohibited extradition if the offences could be visited by the death penalty; the punishment imposed also had to be less than 25 years. Our investigation, intelligence agencies and prosecutors were held captive by the strong urge to inflict the death penalty as per law, and the fact that life imprisonment can be ‘for the rest of the life’. The then-Solicitor General and Advocate-General also stuck to the position – the chances of Abu Salem’s return looked dim. But the investigating agencies would not relent.
Then, one morning, Banbit called me up again: “What do we do with Abu Salem? How do we go about the death penalty?”
“Sir, it is simple. Where there is a will there is a way” I said. He asked me to see him. I insisted that he ‘tell’ the then-CBI Director, PC Sharma, to allow me to help the MEA.
Banbit called up PC Sharma and within minutes, I was on my way to Patiala House, which houses the CPV Division of MEA that handles all extradition matters of India.
The 'Sovereign Assurance'
We quickly came to Abu Salem, and I said, “Sir, the question is whether we want him back. If yes, then we have to be ready for compromises. Secondly, how can a country violate its own Constitutional provisions?”
He agreed and said, “How do we go about it?” While I explained my view to him, he showed me the opinions of the legal luminaries. I suggested that we put those aside, while I drafted a fresh document based on extant Indian laws.
In the next one hour, we had a document ready. It was later named “Sovereign Assurance” and stated that post-trial, the accused would not be visited by the death penalty or punishment of more than 25 years.
The assurance was rooted in the provisions of the Code of Criminal Procedure (CrPC) and the Indian Constitution, which empower the government and the President of India to grant pardons, reprieves, amnesty, remissions, commutation, etc, of sentences. Banbit and I quickly finalised the document.
The powers of the President are almost absolute. However, we carefully drafted the assurance – the death penalty would either not be imposed, or, if imposed, it would not be carried out; ditto for the 25-years clause too. Later, the then-Deputy Prime Minister, LK Advani, finally signed the ‘Sovereign Assurance’.
Now, with the current developments, the CBI is pressing for the ‘death penalty’, while Abu Salem is opposing it as a contravention of the ‘Sovereign Assurance’.
However, international commitments have to be seen from a slightly different perspective. Can the CBI seek the death penalty? Can a punishment of more than 25 years be imposed?
Why International Commitments Should be Respected
The Supreme Court has rightly asked the government of India whether it intends to stand by its international commitments. Any default on the promises made could lead to other countries refusing to extradite Indian fugitives where ‘conditional return’ is involved.
Nonetheless, there is also room for the investigation agencies to push their case. They can seek the death penalty and even punishment exceeding 25 years. The only bar and promise is that ‘excessive punishments’ shall not be carried out.
Therefore, despite the imposition of sentences, the Executive would have to wield the magic wand and ‘waive off’ those parts of the sentences that are in excess of sovereign commitments. The Executive is empowered to do so.
In any case, getting the death penalty would only satisfy the egos and mindset of law enforcers and the victims, their families and survivors. The execution itself would remain a far cry.
A word of caution, though, is necessary. Once sentences are imposed, protracted legal battles would continue. In this case, where the upper limit on the quantum of punishment is already known, the battles are avoidable. But ambiguity will help other similarly placed fugitives delay their extradition.
Criminals like Salem are involved in numerous cases. He was extradited in only nine cases, and he can thus be prosecuted or punished only in these cases. However, that does not mean that he cannot be prosecuted for other crimes. For that to be done, we either ought to seek permission from Portugal for other cases or he would have to be afforded an opportunity to return before launching proceedings for other crimes. This is the essence of the ‘Doctrine of Specificity’. These aspects need to be looked into, and the sooner that’s done, the better.
Getting a fugitive criminal back to face the legal process is of prime importance, and we need to be prepared to make pragmatic and permissible concessions to ensure that the primacy of the legal process is maintained. If we dither in making concessions, fugitives may continue to dig holes in both law and diplomacy.
Rest in peace, Banbit Sir!
(The author is an IPS Officer currently posted as DG Prisons, Homeguards and Civil Defence in Nagaland. He tweets @rupin1992. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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