NEW DELHI: Jailed underworld don Abu Salem is having the last laugh as his extradition case has pitted India’s judiciary against its counterpart in Portugal. The CBI, which is handling his case in coordination with the Ministry of External Affairs in Portuguese courts from where he was extradited in 2005, fears that the issue could create an unprecedented diplomatic row as both countries have to follow their own courts’ decision.
While Portugal’s courts have cancelled Salem’s extradition on the ground that the Indian Government had violated extradition conditions, India’s Supreme Court (SC) had earlier given clean-chit on the same matter. The Indian Government is now left with the last chance to file an appeal in the highest court of Portugal, the Constitutional Court, to challenge cancellation of his extradition.
The difference of opinion between the judicial systems of the two countries is over interpretation of the key extradition clause—Rule of Speciality. Under this, a person extradited may only be prosecuted for the crimes for which he was extradited. This rule prevents a state from extraditing on a lesser offence and once extradition is accomplished, prosecuting on a distinct and more aggravated offence.
Accused in several dozen criminal cases, including the 1993 Mumbai serial blasts, along with his mentor global terrorist Dawood Ibrahim, once Salem was in India, the Maharashtra Police and Delhi Police, in consultation with the Union Government, slapped additional charges on him in some of their cases for which he was extradited. Salem objected to these additional charges, alleging violation of the Rule of Speciality laws. He filed petition in the SC and also simultaneously moved Lisbon High Court.
While India’s SC on September 10, 2010, ruled in the government’s favour that Rule of Speciality was not violated, the Lisbon High Court and then the Portuguese Supreme Court had ruled otherwise. Now the don only needs a legal victory in the country’s highest court of appeal, the Constitutional Court.
Salem’s case has got strengthened as Delhi Police in an extortion case against him had slapped MCOCA (Maharashtra Control of Organised Crime Act) in 2007 that had provisions for death penalty. This is seen as violation of Indian Government’s solemn assurance given to its Portuguese counterpart that if convicted he would not be sentenced to death.
India’s written assurance was the most important condition before Portugal which led the court to allow Salem to be sent to India. The assurance was taken as the European law prohibits extradition of any accused to such a country where capital punishment is in vogue. According to CBI sources, the MCOCA case has become the major stumbling block in convincing the Portuguese court.