GANGULY, J.
1. I have gone through the judgment prepared by Hon’ble Brother Justice P. Sathasivam and I agree with the conclusions reached by His Lordship.
2. Having regard to the importance of the issues discussed in the judgment, may I express my views on the same.
3. Conceptually extradition is a rather complex jurisprudential zone as it has encompassed within itself various trajectories of apparently conflicting ideas.
4. Generally, a State’s criminal jurisdiction extends over offences committed within its geographical boundaries but it is the common experience of all the countries that often a criminal committing an offence in one country flees to another country and thus seeks to avoid conviction and the consequential punishment. This poses a threat in all civilized countries to a fair adjudication of crime and sustaining the Constitutional norms of Rule of Law.
5. To remedy such anomalous and unjust situation, Extradition has been evolved by way of International treaty obligation which ensures a mode of formal surrender of an accused by the one country to another based on reciprocal arrangements.
6. In India, extradition has not been defined under the Extradition Act 1962 (hereinafter, “the Act”). However, a comprehensive definition of extradition has been given in Gerhard Terlinden vs. John C. Ames in which Chief Justice Fuller defined extradition as:-
“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 to punish him, demands the surrender.”
[184 U.S. 270 at p. 289]
7. In the above formulation, the learned Chief Justice virtually echoed the principles of extradition laid down by Professor M. Cherif Bassiouni in his treatise “International Extradition and World Public Order, 1974, Oceana Publications”. The learned Professor explained:
“In contemporary practice extradition means a formal process through which a person is surrendered by one state to another by virtue of a treaty, reciprocity or comity as between the respective states. The participants in such a process are, therefore, the two states and, depending upon value-perspectives, the individual who is the object-subject of the proceedings. To a large extent, the processes and its participants have not changed much in the course of time but the rationale and purposes of the practice have changed, and as a consequence so have the formal aspects of the proceedings.” (Page 2)
8. But extradition is different from deportation by which competent State authorities order a person to leave a country and prevent him from returning to the same territory. Extradition is also different from exclusion, by which an individual is prohibited from staying in one part of a Sovereign State. As a result of such orders, sometimes deserters or absentees from Armed Forces of a particular country are returned to the custody of Armed Forces of the country to which they belong.
9. Both deportation and exclusion basically are non-consensual exercise whereas extradition is based on a consensual treaty obligation between the requesting State and the requested State. Extradition, however, is only to be resorted to in cases of serious offences and Lord Templeman was right in holding that extradition treaties and legislation are designed to combine speed and justice [Re Evans – 1994 (3) All E.R. 449 at 450- 451].
10. In the context of extradition law, which is based on international treaty obligations, we must keep in mind the emerging Human Rights movements in the post World War II scenario and at the same time the need to curb transnational and international crime. The conflict between these two divergent trends is sought to be resolved by expanding the network of bilateral and multilateral treaties to outlaw transnational crime on the basis of mutual treaty obligation. In such a situation there is obviously a demand for inclusion of Human Rights concerns in the extradition process and at the same time garnering more international support and awareness for suppression of crime. A fair balance has to be struck between Human Rights norms and the need to tackle transnational crime. This is best summed up in the leading decision of European Court of Human Rights rendered in Soering vs. United Kingdom reported in 1989 (11) EHRR 439 and the relevant excerpt is quoted:
“…inherent in the whole of the Convention (European Convention on Human Rights) is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interests of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.”
11. The extradition law, therefore, has to be an amalgam of international and national law. Normally in extradition law the requested State is to follow the rule of Non-Inquiry which means that the requested State is not to normally make inquiry about the nature of criminal justice system in the requesting State. That is why in this case, on a complaint being made by Abu Salem in the Court of the requested country, the Courts of Portugal await the decision of this Court. The actual conduct of trial of the extradited accused is left to the criminal jurisprudence followed in the requesting State. This rule of Non-Inquiry is a well developed norm both in Canada and in America [See the decision of Canadian Supreme Court in Canada vs. Schmidt, (1987) 1 SCR 500.
12. Justice La Forest delivering the majority judgment in Schmidt held:
“that I see nothing unjust in surrendering to a foreign country a person accused of having committed a crime there for trial in the ordinary way in accordance with the system for the administration of justice prevailing in that country simply because that system is substantially different from ours with different checks and balances. The judicial process in a foreign country must not be subjected to finicky evaluations against the rules governing the legal process in this country.”
13. Whether or not the fugitive who has been extradited would have a standing to complaint of the judicial process in the requesting State after extradition has been done, independent of the position taken by the requested State, is a debatable issue. It is a part of the larger debate about the position of an individual as a subject of international law, and the obligation of States towards individuals. This is pertinent here because one of the claims made by Abu Salem is with respect to the erosion of his rights that exist by way of the international commitments India has made through the doctrine of specialty embodied in section 21 of the Extradition Act. His complaint is that by trying him for some offences which are designated as ‘lesser offences’ and calling them as completely similar to the ones mentioned before the Portuguese authorities, as well as by separating his trial from the other accused, the Government of India has violated its commitments in the extradition request, and therefore has violated the rights with which Abu Salem had been extradited. The answer to this complaint obviously lies in the principle of non-inquiry which prohibits questioning the fairness of the judicial process in the requesting State. That is why the Courts of Portugal await the decision of this Court. However, non-inquiry is not an absolute principle.
14. In a given situation, the requested State may question the procedures in the requesting State if they are prima facie contrary to fundamental principles of justice and there is a high risk of the fugitive being prejudiced by the process of extradition.
15. There are cases where the requested State has rejected the extradition request as the requesting State may have procedures that are basically incompatible with the practices of the requested State. The most remarkable example is in Soering (supra) where the European Court of Human Rights struck down an extradition request from the USA on the ground of it being violative of Article 3 of the European Convention on Human Rights which prohibits inhuman and degrading treatment of humans. It said that the prolonged delay in the form of death row, which is a natural outcome of the criminal procedure existing in the USA, was certainly violative of the human rights of the fugitive, for it was torturous for him to wait in anticipation of a death that was almost certain for him in the USA.
16. Furthermore obligations entered by many countries of the world, including India, in the form of Covenant on Civil and Political Rights, and The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (to which India is a Signatory), would preclude a total and unconditional observance of the principle of non-inquiry. Even though, non- inquiry is not an absolute doctrine, but in facts of the present case, it operates.
17. In this case, the insistence of the Central Government on trying Abu Salem for lesser offences is permissible, both under the Extradition Act as well as under the Convention for Suppressing Terrorist Bombings.
18. United Nations General Assembly adopted on 15th December 1997, the International Convention for the Suppression of Terrorist Bombings. India has been a party to this Convention, ever since the Union Cabinet approved it on 5th of August, 1999 and India formally ratified it on 17th of September 1999. This Convention creates a broad platform for international cooperation to suppress and deal with unlawful and international use of explosives and other lethal devices in various public places with the intention to cause serious bodily damage and extensive destruction.
19. The Convention thus fills up a huge void in international law by expanding the legal framework and enabling several States to cooperate in the investigation, prosecution and extradition of several persons who are engaged in such international terrorism. It is of utmost importance as it strengthens international law enforcement in controlling international terrorism.
20. This Convention is structured on prior counter terrorism conventions adopted by the United Nations. It calls upon the member parties to declare certain specified conducts to be criminal activities and to initiate prosecution for them, and to extradite persons who have committed such conduct in one country and are staying in another country. But unlike its predecessors, this Convention does not define terrorism. However it points out particular conducts, regardless of the motive, as internationally condemnable. Thus this convention is of crucial importance in the field of international law enforcement devices. [See Samuel M. Witten, The International Convention for the Suppression of Terrorist Bombings, The American Journal of International Law, Vol.92, No.4 (October 1998) pp.774-781]
21. There are two ways in which to describe a lesser crime. Either every single element of a lesser crime should be component of the greater crime on the basis of their statutory definitions; or the allegations of the larger crime in the indictment should include all the factual details of the lesser crime. (See Submission of Lesser Crimes, Columbia Law Review, Volume 56(6), 1956 pp.888-902, at 888-890).
22. Section 21(b) of the Act seems to embody the latter of these two principles. This means that a crime which can be framed from out of the factual averments themselves (i.e. evidence submitted) before the requested State at the time of extradition, can be the one upon which the fugitive can be tried. A lesser crime can be a cognate crime, in that it shares its roots with the primary crime, even though it may be independent of it.
23. The learned Solicitor General rightly placed reliance on the following observation of the Designated Court in Bombay Blast case where the learned Judge observed:
“Thus in true sense all such offences would always be lesser offence of conspiracy of which pivotal charge of conspiracy is framed at the trial subject to such offences being punishable with lesser punishment than prescribed for main offence of conspiracy.”
24. In the instant case the extradition has been allowed by the requested State on the specific undertaking of the Government of India that the extradited criminal will not be subjected to death penalty or imprisonment beyond 25 years. Therefore, the basic human rights considerations have been taken into account and the guidelines in Soering (supra) have been adhered to. Thus, primacy has been accorded to human right norms in the extradition process.
25. Doctrinally speaking, Extradition has five substantive ingredients. They are: (a) reciprocity, (b) double criminality, (c) extraditable offences, (d) specialty and (e) non inquiry.
26. In India, the Act suffered an amendment in 1993, by Act 66 of 1993 and in the instant case, the amended provisions have come up for discussion. In order to appreciate the purport of the amendment, the Statement of Objects and Reasons for enacting the Act 66 of 1993 (hereinafter the Amending Act) are set out:
“At present, the Law of Extradition in India is contained in the Extradition Act, 1962 (Act 34 of 1962). The 1962-Act made a distinction between Commonwealth countries and foreign States and considered only foreign States as treaty States. The extradition with Commonwealth countries was separately governed by the second schedule of the Act and the Central Government was given powers under Chapter III to conclude special extradition arrangements with respect to Commonwealth countries only. Such distinction made in the Extradition Act, 1962 between foreign States and Commonwealth countries does not hold good in view of the change of time and rapid developments in Extradition Law at international level. Commonwealth countries are concluding extradition treaties among themselves. India has in recent years concluded separate extradition treaties with Canada and UK. Moreover, the Civil Law countries have specific requirements for purposes of extradition with them. In addition, terrorism and drug trafficking as two most heinous crimes affecting innocent lives, have thrown new challenges necessitating changes in the existing Extradition Law to effectively deal with these new crimes. Many International Conventions dealing with these and other crimes have laid down specific obligation on State parties to extradite or prosecute a fugitive offender. India is a State party to many of these International Conventions.
2. The purpose of the Bill is to amend the Extradition Act, 1962, to suitably incorporate in it the above noted changes and to achieve, inter alia, the following objectives:
a. to enable India to conclude extradition treaties with foreign States including the Commonwealth countries without treating them structurally different;
b. to provide for extra-territorial jurisdiction over foreigners for crimes committed by them outside India;
c. to incorporate composite offences in the definition of extradition offence;
d. to exclude political offence as a defence in cases of offences of a serious nature;
e. to cover extradition requests on the basis of international Conventions within the scope of the Act;
f. to enable Central Government to make and receive requests for provisional arrest of fugitives in urgent cases pending the receipt of the formal extradition request;
g. to enable the Central Government to give assurance pursuant to a treaty obligation to the requested State for the non-execution of death penalty.
3. The Bill seeks to achieve these objects.”
27. The above stated objects behind the Amending Act are relevant in appreciating some of the problems in the instant case. As a result of the amendment, Section 21 has been completely recast and the doctrine of Specialty has been introduced.
28. A perusal of the said Amendment Act would make it clear that the amendment enables the requesting State to try the fugitive for a lesser offence without restoring him to the requested State. In fact the doctrine of specialty is in fact a corollary to the principle of double criminality, and is founded on policy and expediency and on the basic principle of reciprocity. It is thus a universally recognized principle of international law and partakes of doctrines of both double criminality and reciprocity.
29. Section 21 of the Act bears close a resemblance to Section 19 of the English Extradition Law. Both the provisions are successors to Section 19 of the United Kingdom Extradition Act, 1870. Section 19 of the English Extradition Law reads:
“Where in pursuance of any arrangement with a foreign State, any person accused or convicted of any crime which, if committed in England, would be one of the crimes described in the first schedule to this Act is surrendered by the foreign State, such person shall not, until he has been restored or had an opportunity of returning to such foreign State, be triable or tried for any offence committed prior to the surrender in any part of her Majesty’s dominions other than such of the said crimes as may be proved by the fact on which the surrender is grounded.”
30. This is in keeping with the rule of double criminality, which requires a mutually acceptable position between the requesting as well as the requested State on all the aspects of the criminal act committed by the person who is to be extradited. This understanding is not about an agreement as to the specifics, but rather a consensus ad idem in the contractual relationship between two sovereign States. Explaining the rule of double criminality, Shearer says, “…This rule requires that an act shall not be extraditable unless it constitutes a crime according to the laws of both the requesting and requested States… The validity of the double criminality rule has never seriously been contested, resting as it does, in part on the basic principle of reciprocity, which underlies the whole structure of extradition, and in part on the maxim nulla poena sine lege” (no penalty without prior legal authority) (See Extradition in International Law (1971) at page 137).
31. This position of extraditable offences, and the obligations of the requesting State can further be understood, if one bears in mind the fact that the doctrines of double criminality and specialty are both safeguards of the individual rights of the extraditee who should not be tried on unexpected counts, as well as the rights of the requested State to have its laws and processes given adequate deference by the requesting State. It is not only a means to protect the person from unexpected prosecution, but also a preventive guard against the abuse of the legal process of the requested State. While the first takes care of the individual’s right, the second takes care of the rights of a sovereign State.
32. Therefore it can be said that as long as the facts that have been submitted before the requested State prima facie show the guilt of the extraditee in a foreseeable and logically consistent way, the said person can be tried on all such counts that can be conclusively proved against him or her.
33. Therefore, I do not find any substance in the complaint of Abu Salem.
34. Thus I concur with Brother Sathasivam and reach the same conclusion as His Lordship does.
… J.
New Delhi (ASOK KUMAR GANGULY) September 10, 2010