The Supreme Court on Monday ordered the release of 1993 Mumbai serial blasts convict Abu Salem after he served 25 years in jail, as per the terms of an extradition treaty between the Center and the Portuguese government.
Then Deputy Prime Minister L.K. Advani assured Portugal and the country's highest court that Salem would also not be sentenced to death.
India must adhere to the principles of "fairness of courts" and "competency of nations", the apex court said. He observed that while Indian courts are not bound by extradition treaties, the executive must abide by its assurances in such matters.
Salem, who was extradited to India on October 12, 2005, was sentenced to life imprisonment by the Tada court in 2017.
However, Salem argued before the apex court that the Indian government wants to renege on its solemn assurance and may keep him in jail for more than 25 years. The Union government submitted before the apex court that the question of limiting his sentence to 25 years would arise only after the expiry of the period.
Rejecting the Centre's argument, Justice Sanjay Kishan Kaul and Justice M.M. Sundresh said: “…After the 25 years of the sentence has expired, in accordance with its commitment to the courts in Portugal, the Government of India is required to advise the President of India to exercise his powers under Article 72(1) of the Constitution to commute the remaining sentence, or that the Government of India exercises powers under Sections 432 and 433 CrPC (power of government to commute sentences).
“We feel that it is necessary to make this time-bound so that it does not lead to an endless exercise and therefore the Government of India must exercise the above powers or give advice which the President of India is expected to act within one month of the end of the sentence .”
The Supreme Court observed that the Portuguese courts had earlier followed the principles of judicial comity by recognizing that there was a separation of powers in India and therefore no assurance could be given by the courts in India.
“Therefore, the corresponding principle of judicial comity must be observed so that the Government of India, having given a solemn assurance and accepted it before us, is bound to act in terms of the above. Therefore, we now accept the challenge of this issue and do not want to leave it in limbo in the future. This is of course subject to any aggravating aspect of the appellant.
“We conclude that the detention of the appellant in the present case commences from 12.10.2005. After the appellant completes 25 years of sentence, the Central Government is bound to advise the President of India in exercise of his powers under Article 72 of the Constitution and to release the appellant as a matter of national obligation , as well as principles based on the community of courts. With this in mind, the necessary documents must be sent within one month of the expiry of the appellant's 25-year sentence. In fact, this power can be exercised by the Government itself in terms of Sections 432 and 433 CR. and such exercise should also take place within the same time period of one month,” said Justice Sanjay Kishan Kaul, who authored the judgment.