CHENNAI: The TADA court in Mumbai handed out sentences to five people convicted in the Mumbai 1993 blasts case on Thursday. Two of the guilty got death and two others were handed life in prison. Tahir Merchant, who made the travel arrangements for a co-accused, was one of those who got the death penalty. In contrast, Abu Salem, who transported the explosives from Bharuch to Mumbai, got a life term.
Of the two, Abu Salem's role in the blasts was more crucial, but yet he got away a life sentence. That's because when he was deported to India from Portugal in 2005, the Central Bureau of Investigation agreed to Lisbon's condition that he not be handed the capital punishment or be imprisoned for more than 25 years.
Was justice served? Was it necessary to agree to leniency for a man who conspired in a terror attack that killed 257 people and injured or maimed 717 others? But often that's the way the extradition process works.
In the Abu Salem case, India's treaty with Portugal effectively tied the hands of the TADA court in Mumbai. Before being extradited to India, Salem and his girlfriend Monica Bedi had been imprisoned in Portugal for using forged documents to enter that country. In 2005, after much lobbying by India, the Portuguese government deported Salem to New Delhi on the condition that he would face the same punitive outcome as would be handed out were he to be tried in Portugal.
Getting Abu Salem extradited was no easy job. Initially, the Portuguese authorities turned down India’s request for deportation of the Salem-Bedi duo. Instead, New Delhi was asked to file an extradition request. Extradition is a much longer process than deportation and involves much more legal process. The ensuing three-year-long legal battle in the Portuguese courts saw New Delhi’s request for extradition turned down repeatedly as the Portuguese courts expressed concerns that Abu Salem and Monica Bedi may be subjected to harassment if sent to India.
Extradition is a complex process. It brings into play a whole lot of legal frameworks --, especially if the two or more countries involved in the process have not signed an extradition agreement. In 2005, as India had not yet signed a formal extradition treaty with Portugal, it had to agree to treat Abu Salem in accordance with Portuguese domestic laws.
Being a member of the European Union, Portugal is a signatory to the EU Charter of Fundamental Rights, which affirms that a person’s right to life is a fundamental right, and therefore, makes the death penalty unavailable to the courts. In addition, the Portuguese Penal Code bans imprisonment of any criminal for more than 25 years. Thus, before handing over Abu Salem to India, the Portuguese government ensured that the punishment meted out to him by New Delhi would not violate the prevailing laws in Portugal. In effect, no death or jail term of more than 25 years for Abu Salem.
How is it fair?
Extradition is one of the most contentious issues in international relations. Put simply, it has the power to make or break bilateral relationships. Remember the NSA whistleblower Edward Snowden? Moscow’s refusal to extradite him has been one of the sore points in US-Russia relations. A key issue in extradition is the question of sovereignty. Every individual within the territorial boundaries of a particular country at a given time is subject to that country’s laws. In other words, Portuguese law takes authority over all those who are within Portugal's borders. This includes tourists and illegal immigrants. Unless consented by Lisbon, New Delhi had no means to secure Abu Salem’s custody. Any use of coercion or blackmailing to secure his release would have been tantamount to a violation of Portugal’s sovereignty, and by extension, a violation of international law.
How extradition works
Extradition is a long drawn and complicated process. Consider Vijay Mallya’s case. Mallya is wanted in India for defaulting on loans amounting Rs 9000 crore borrowed from Indian banks. Efforts are on to secure his extradition from the UK. Here’s how the extradition process works. India's Ministry of External Affairs (MEA) placed a request with the UK government for Mallya's extradition. As a next step, MEA is required to furnish details of the crimes committed by Mallya in India and the evidence it has against him (evidence should be acceptable to the host country). On the basis of these, and other provisions in the India-UK Extradition Treaty, the UK courts will decide whether or not to extradite Mallya.
In June, a UK court refused to consider India's request for Mallya's extradition for want of evidence.
Extradition: No easy deal
To begin with, a host country is not obliged to consider every extradition request it receives. Further, extradition of a fugitive depends on the specifics of the extradition agreements the host country may have with other countries. Although individual countries may enter into separate extradition treaties, the United Nations Model Law on Extradition lays out the broad framework. According to it, a request for extradition may be granted only if the offence for which a person’s extradition is sought is punishable under the domestic laws of the country to which the request is made.
However, in some cases, countries have agreed on exceptions to certain kind of offences. These are usually specified in the extradition agreements that countries sign with each. Political offences are generally exempted from the purview of most extradition agreements. According to legal experts, political offences are those that jeopardise the security of a state. A person who leads a rebellion to overthrow a government is, in effect, committing a political crime. In India, this may invite sedition charges. However, most countries would refuse to extradite a person accused of conspiring to topple a government. Revealing state secrets is another political crime which is exempted from most extradition treaties and arrangements.
Charles L. Cantrell, a former professor of law at Oklahoma City University offers a good explanation of the motives of a political offender and why an exemption is justified. He wrote in his comparative study of the extradition laws prevailing in the US and the UK that “the political offender is committed to the principle of political change through his act, and does not consider his actions blameworthy. He attacks the status quo through his act and denies the legitimacy of the particular laws, claiming instead an allegiance to a superior legitimating principle. For him, this ‘higher principle’ or political cause justifies the violation of penal law.”
Doesn’t this remind us of Julian Assange and Edward Snowden who are currently fighting the US efforts to extradite them? Assange has been holed up in Ecuador’s embassy in London to avoid being sent to Sweden (where he is wanted in connection with alleged sexual assault) and from there, onward to the US (where he would be tried for leaking state secrets). Although the US and Ecuador have an extradition treaty, since the crime committed by Assange is political in nature, it is subject to exception.
Another example is Fethullah Gulen's case. An Islamic preacher, Gullen is accused of fomenting the July 2016 coup in Turkey. Gullen is currently living in the United States. Washington has repeatedly turned down Ankara’s request for his extradition on the ground that he could face political persecution if sent to Turkey.
Cantrell noted that “The traditional justification for exemption has been the presumption that the delivery of political enemies to a requesting state would result in their trial being influenced by political considerations.”
However, not every political crime is eligible for exemption. Genocide or war crimes, although political in character, are not exempt. Further, extradition treaties, which India has signed with many countries, does not grant an exemption to politically motivated murders.
The double jeopardy aspect of extradition
India’s efforts to secure the extradition of David Coleman Headley offers an interesting case study. Headley is a US citizen and has been found guilty of aiding the Lashkar-e-Taiba in orchestrating the 2008 Mumbai attacks. For years, India fought unsuccessfully to secure his extradition from the United States, despite both countries having an extradition treaty.
Headley was tried and found guilty by a US court for aiding the murder of six US citizens during the 2008 attacks. He was sentenced to 35 years in prison. In this case, the US officials made it clear that Headley is currently serving a sentence in the United States for his role in the Mumbai attacks. As such, he cannot be sent to India nor could he be tried again for the same offense.