VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA & ORS.

A any country, much less the Extradition Treaty, nor did it concern itself with any issue other than the issue of the jurisdiction of the International Court of Justice to adjudicate the dispute between Pakistan and India in the context of the General Act of 1928. The contents of the counter- memorial did not validate the Report of the Expert Committee, as indeed it cou Id not. This is the error made by learned counsel for the petitioner B in appreciating the proceedings before the International Court of Justice.

103. Learned counsel for the petitioner also forgets that the Indian Independence (International Arrangements) Order, 194 7 had the effect of an agreement between the Dominion of India and the Dominion of Pakistan. These two Dominions did not agree to exclude any treaty, c convention or agreement from the purview of the Indian Independence (International Arrangements) Order, 194 7 as a result of the Partition Proceedings. Indeed, neither Dominion could wish away the existence of any pre-Independence treaty. On the contrary, the two Dominions specifically agreed that the "rights and obligations under all international agreements to which India is a party immediately before the appointed day will devolve both upon the Dominion oflndia and upon the Dominion of Pakistan." Therefore, it is not possible to read the exclusion or elimination of any treaty from the purview of the Indian Independence (International Arrangements) Order, 1947, much less through the Report of the Expert Committee. The Extradition Treaty with Chile was very much included in the arrangement between the Dominion of India and the Dominion of Pakistan with only the question of apportionment kept open, if necessary.

104. We also cannot overlook the submission of the learned Additional Solicitor General that the Report of the Expert Committee F was not the final word on the subject under discussion. The Report was considered by the Steering Committee whose views were then considered . by the Partition Councif. It is only thereafter that some finality was reached through an Order that had the effect of an agreement between the two Dominions. The list of 627 treaties prepared by the Expert Committee was not exhaustive nor was it intended to be exhaustive, nor were the views of the Expert Committee conclusive. They were subject to the decision- of the Partition Council and eventually the Governor- General (reforms). It is for this reason that the Indian Independence (International Arrangements) Order, 194 7 issued by the Governor-General (Reforms) did not specify any treaty or treaties but al I inclusively referred to the devolution of the rights and obligations under all international

p. 91

[MADAN B. LOKUR, J.]

agreements, without limitation. A I 05. Finally, as far as extradition treaties generally are concerned, the provisions of Section 2( d) of the Act have been made applicable to all such treaties entered into prior to Independence. Nothing could be clearer or more explicit on the subject. I 06. Assuming the report .of the Expert Committee limited the B agreement between the two Dominions only to 627 pre-Independence treaties, that could not wipe out the existence of other treaties entered into, prior to Independence, on behalf of India, including the Treaty mentioned in the Gazette oflndia of I2'h November, 1898. It is nobody's case that the Report of the Expert Committee resulted in the termination c or repudiation of pre-Independence treaties that were acknowledged to be binding on India. Such a contention completely overlooks the contents of the Indian Independence (International Arrangements) Order, 1947.

107. That the Extradition Treaty was in existence and it was not unilaterally terminated or repudiated is also clear from two major overt D acts: firstly, the statement of the Prime Minister in Parliament recognizing an Extradition Treaty with Chile and secondly, the statutory enactment, namely, the Extradition Act, 1962 which specifically gave recogniti'on through Section 2(d) thereof to all extradition treatres entered into prior to 15'h August, 1947. If there was any controversy whether the Government oflndia recognized itselfas bound by the Extradition Treaty, E then that was put to rest by the notified order of28'h April, 2015 under Section 3( I) of the Act (gazetted on 29'h April, 2015 with a corrigendum issued on I I •h August, 2015) whereby the Government of India made the Act applicable to the Republic of Chile. This left absolutely no manner of doubt that India was bound by the obligations under the Extradition F Treaty. These public and overt acts after Independence confirm and acknowledge, on behalfoflndia, the existence and binding nature of the Extradition Treaty between India and Chile. I08. That apart, this Court has taken the view in Rosilbte George v. U11ion ofIndia & Ors. 7 (relying upon Babu Ram Saksena v. State 8 ) G that our Independence and subsequent status as a sovereign republic did not put an end to the treaties entered into prior to I S1h August, J 94 7 by the British Government on behalf of India. This is what was said in

1 <199-1) 2 sec so 8 1950 SCR 573 [5 Judges] H

92 SUPREME COURT REPORTS [2016J 3 S.C.R.

A paragraph 26 of the Report: "It is thus obvious that in Babu Ram Saksena case this Court approved the proposition of international law that a change in the form of Government of a contracting State does not put an end to its treaties. India, even under British rule, had retained its personality B as a State under international law. It was a member of the United Nations in its own right. Therefore, grant of independence in the year 1947 and thereafter the status of Sovereign Republic could not have put an end to the treaties entered into by the British Government prior to August 15, 194 7 on behalfoflndia."

c 109. Nothing can be a clearer exposition of the law, particularly with respect to extradition treaties. What is also of importance is how the Government of India viewed the factual position in relation to an extradition treaty. In the factual position before us, did the Government oflndia terminate the Treaty or did it recognize its obligations under the Extradition Treaty? In this context, reference must be made to Article D XVlll of the Extradition Treaty. This reads as follows:- "The present Treaty shall come into force ten days after its pub- lication in conformity with the forms prescribed by the laws of the High Contracting Pat1ies. It may be terminated by either of the High Contracting Parties by a notice not exceeding one year, and not less than six months. It shall be ratified, after receiving the approval of the Congress of the Republic of Chile, and the ratifications shall be exchanged at Santiago as soon as possible." There is nothing to indicate that the Government of India resorted to t!1is Article to terminate or repudiate the Extradition Treaty. On the contrary, as mentioned above, the Government of India overtly accepted and acknowledged the Treaty and even made the Extradition Act appli- cable to Chile.

110. Our attention was also drawn to Ha/sbury's Laws of En- G glamf wherein it is stated in paragraph 642 with regard to treaties en- tered into by the 'mother state' on behalf of its colonies as follows: "642. Te1Titorial application clauses. The position offonnercolonial territories with regard to treaties entered into by their mother state, ---- H 9 Volume 18(2) 4'" Edition

VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 93

[MADAN B. LOKUR, J.]

after their independence, is influenced by the existence in some such treaties of territorial or colonial application clauses. These in effect permit non-metropolitan territorial sub-divisions of states to contract in or contract out of treaties independently of the 111other country. Incidentally, therefore, when self-governing dominions of the Crown eventually achieved statehood the question whether they succeeded to United Kingdom treaties did not arise, since they were already patiies to them. Similarly, when other British overseas territories were granted independence, the prime question in relation to treaties was often not whether those territories succeeded to the treaties, but whether those treaties already applied to them in their new international capacities by some territorial c clause contained in them." A reference was made to India in a footnote to the aforesaid passage, to the effect that though she was not a self-governing State at the relevant time, she was an original member of the United Nations and a party to the Cha1ier of the United Nations in her own right. In this context, we D might also recall that as far as the Treaty is concerned, India had gazetted it in the Gazette oflndia of I 2'h November, 1898 when it reproduced the Order in Counci I, even though India was, at that time, not a self-governing State. A political question - alternative view E

111. It was submitted by the learned Additional Solicitor General, in the alternative, that the existence of a treaty is a political question and that this Court cannot go into the issue whether there is a subsisting and binding treaty of extradition between India and Chile. Effectively, the contention is that the word of the Government of India on the existence F ofa treaty should be accepted. It is difficult to fully accept the proposition in the broad manner in which it has been stated.

112. In Sayne v. Slzipleyi 0 in a discussion pe1iaining to the 1903 treaty between the United States and the Republic of Panama, it was held, referring to Terlimle11 v. A111es 11 and Iva11cevic v. Artukovic 1 ~ G that the conduct of foreign affairs is a political function but the advice that a treaty is stil I in effect is not conclusive though it is entitled to great weight and importance. It was said as follows: '" 418 F.2d 679 [United States Court of Appeals. Filth Circuit] II 184 U.S. 270 (1902) 12 211 F.2d 565 [United States Court of Appeals. Ninth Circuil] H

pp. 92–93 — page break not located

p. 94

A "The Assistant Legal Advisor for Treaty Affairs of the State Department has advised the District Court that Article XVI of the 1903 Treaty is still in effect. Because we recognize that the conduct of foreign affairs is a political, not a judicial function, such advice, while not conclusive on this Court, is entitled to great weight and importance. It is the general rule that the courts will B accord great, but not binding, weight to a determination by the Executive Department that a treaty is terminated, at least when private rights are involved."

113. In Terlinden it was held that:" ... on the question whether this treaty [the treaty between the United States ofAmerica and the Kingdom c of Prussia concluded on l 61h June, 1852 and ratified on 30•h May, 1853] has ever been terminated, governmental action in respect to it must be regarded as of controlling importance."

114. In Jliirad v. Ferrandina 13 the Government of India sought the extradition of an Indian citizen from the United States, relying on the D 1931 extradition treaty between the two countries. It was held as follows: "Whether an extradition treaty exists is an issue with major foreign policy implications and one which does not easily fall within the sphere of the Judicial Branch of Government. Thus, it is that courts have given great weight to the position taken by the Executive E Branch concerning the validity of extradition treaties. In Sayne v. Shipley, the Fifth Circuit said: "Because we recognize that the conduct of foreign affairs is a political, not a judicial function, such advice from the Executive Branch], while not conclusive on this Court, is entitled to great F weight and importance." In the case at bar, the United States, through the Acting Secretary of State, certified on August 14, 1972, that "the treaty of extradition between the United States and India is therefore considered a good subsisting and binding convention between the United States G and India." Further, the Executive Branch strongly indicated its continuing affirmation of the Treaty when (in July of 1967), in conjunction with a prior extradition between the United States and India, notes were exchanged between the two Governments.

H "355 F. Supp. 1155 [S.D.N.Y. 1973]

p. 95

[MADAN B. LOKUR, J.]

The position of the Executive Branch, though persuasive, is not conclusive. The Court must evaluate the facts concerning the Treaty on its own."

115. There are a few other decisions on the subject, but there is none that crystallizes the extent to which the judiciary can go in the matter of determining whether a treaty is subsisting or not. The matter is certainly not free from doubt, but it does appear that there cannot be complete judicial abstinence in the matter as mentioned in Sayne. l I 6. In Baker v. Carr'• the United States Supreme Court (though not dealing with extradition) observed that it would be erroneous to say that every case relating to foreign relations lies beyond judicial cognizance. c Reference was made to Terlinden and 'governmental action' on the subject. This is what the Court had to say about judicial review and foreign relations: "Foreign relations: there are sweeping statements to the effect that all questions touching foreign relations are political questions. D Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature, but many such questions uniquely demand single-voiced statement of the Government's views. Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light ofits nature and posture in the specific case, and of the possible consequences ofjudicial action. For example, though a court will not ordinarily inquire whether a treaty has been terminated, since on that question, "governmental action ... must be regarded as of controlling importance," if there has been no conclusive "governmental action," then a court can construe a treaty, and may find it provides the answer. Compare Terlinden v. Ames, 184 U.S. 270, 285, G with Society for the Propagation of the Gospel in Foreign Parts v. New Haven, 8 Wheat. 464, 492-495."

117. As far as we are concerned, in Rosiline George this Court

"369 U.S. 186 H

p. 96

A made a reference to a decision of the Supreme Court of the United States in Tom C. Clark v. Alvi11aAlle11 15 wherein it was held thahvhether a State is in a position to perform its treaty obligations is essentially a political question. This view has been accepted by Justice Sathasivam in

Abu Salem Abdul Qayoom Ansari v. State of Maftarasfttra. 16

B 118. It was also observed in Rosilitte George that whether a treaty has been terminated by a State is essentially a political question. It was observed: "Whether a treaty has been terminated by the State is essentially a political question. The governmental action in respect to it must c be regarded as of controlling importance. So far as India and the United States of America are concerned, it is amply evidenced by their actions that the two States fully recognise their obligations under the 193 I treaty."

119. Although this may not necessarily be a fully accurate statement of the law, we leave it at that since the issue does not arise in these cases. In any event, we leave these issues of termination of a treaty or performance of treaty obligations being political questions to be decided in an appropriate case. However, we can say that it does appear though, that the reason for terminating an extradition treaty would be a political question, so also whether India should enter into an extradition treaty with a foreign State and whether India should issue a notified order under Section 3(1) of the Act making the Act applicable to a foreign State would also be a political decision. But whether a treaty exists between India and a foreign State may not necessarily be a political question or a political decision-a lot depends on 'governmental action' F which would certainly be of 'controlling importance' though not conclusive. Nevertheless, we are clear that if the Executive were to inform the Court that there exists a treaty between India and a foreign State, the Court would defer to the decision of the Executive and would not ordinarily question the information.

G Applicability of Section 34-B of the Act

120. It was submitted by learned counsel for the petitioner that the detention and provisional arrest of his client on 22"d September, 2015 under Section 34-B ofthc Act soon after the judgment of the High Court "331U.S.503. 518 H "(2011) II SCC214

p. 97

[MADAN. B. LOKUR, J.]

was illegal. It was submitted that there was no request from Interpol to A detain and arrest the petitioner and therefore there was no occasion for her arrest particularly since the proceedings against her had been quashed by the High Court the previous day in its judgment dated 21" September,

2015. We are not inclined to accept this submission.

121. It is not at all necessary that the arrest of a foreign national for B a crime committed outside India can only be on the basis of a Red Notice. It is true that in Blwveslt Jaya11ti Laklta11i v. State of Malwraslitra & Ors. 17 it was explained that a Red Notice is issued to seek the provisional arrest of a wanted person. It is not a warrant of arrest. It is a request made by the NCB to Interpol Headquarters for the provisional arrest of a person wanted for extradition and against whom a national or c international court has issued a warrant of arrest. It is another matter that a Red Notice issued by Interpol acts as a de facto international arrest warrant. However, this is subject to the condition that a request for extradition, along with necessary evidence, would be produced by the requesting State without delay. D

122. But the absence of a Red Notice does not preclude the Government of India from arresting a fugitive criminal and producing him or her before a Magistrate in accordance with law. Thereafter, the provisions of Section 34-8 of the Act can be brought into play, provided there is an urgent request from a foreign State for the provisional arrest of a fugitive criminal. This is precisely what transpired in the present case when the Embassy of Chile made an urgent request through the Note Verbale of 22nd September, 2015 for the arrest of the petitioner. That Note Verbale was acted upon by the Government of India and an application moved before the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi who granted the prayer for the provisional arrest of the petitioner. No illegality or irregularity can be found in the procedure adopted for the provisional arrest of the petitioner.

123. Learned counsel for the petitioner submitted that the petitioner's arrest under Section 34-8 of the Act could be made only on a request from a foreign State (as mentioned in the Section) and not by a G representative of a foreign State or even the Embassy of a foreign State. This argument is stated to be rejected. Section 2( e) of the Act defines a foreign State to mean any State outside India and it includes every constituent part, colony or dependency of such State. A request made 11 (2009) 9 sec ss 1 H

p. 98

A by the Embassy of a foreign State is as good as a request made by the foreign State itself. If this is not accepted, it will lead to an absurd situation where the Head of State or the Head of the Government of a foreign State would be required to make a request for extradition. This is simply not an acceptable proposition. B Extradition and reciprocity

124. The principle of reciprocity has quite an 'ancient' history. As noted in the Final Report of the International Law Commission (2014) on "The obligation to extradite or prosecute" (aut dedere autjudicare): "The role the obligation to extradite or prosecute plays in supporting c international cooperation to fight impunity has been recognized at least since the time of Hugo Grotius, who postulated the principle of aut dedere aut punire (either extradite or punish): "When appealed to, a State should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal." The modern terminology replaces "punishment" with "prosecution" [aut dedere aut judicare] as the alternative to extradition in order to reflect better the possibility that an alleged offender may be found not guilty." 18 In other words, ifa State is unwilling to extradite a fugitive criminal, it should undertake the responsibility of prosecuting him or her, the theory being that a criminal should not go unpunished. The prosecute-or-extradite regime received the imprimatur of the International Court of Justice in the case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) 19 in the context of the Convention against Torture, but "the Court's ruling may also help to elucidate the meaning of the prosecute-or-extradite regime under .... other conventions" which have followed the same formula as the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft.= 0

125. In Rosiline George there is a discussion on extradition. It is mentioned in the paragraph 16 of the Report that extradition denotes the process whereby under a concluded treaty, one State surrenders to any other State at its request, a person accused or convicted of a criminal offence committed in contravention of the laws of the requesting State, 18Hugo Grotius lived from 1583 to 1645 19Judgment of 20'h July, 2012: I.CJ. Reports 2012. p. 422 H '°Paragraph 65(15) of the above Report of the International Law Commission

p. 99

[MADAN B. LOKUR, J.]

such requesting State being competent to try the alleged offender. A "Extradition is founded on the broad principle that it is in the interest of civilized communities that criminals should not go unpunished and on that account it is recognized as a part of the comity of nations that one State should ordinarily afford to another State assistance towards bringing offenders to justice." B In Terlinden, it was said: "Extradition may be sufficiently defined to be 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 punish c him, demands the surrender." I 26. The discussion on extradition by Justice Ganguly in Abu Salem is not only very erudite but also very instructive. The learned Judge noted that doctrinally speaking extradition has five substantive ingredients: reciprocity; double criminality; extraditable offence; speciality and non- D inquiry. For the present purposes, it is not necessary to deal with each ingredient.

127. Suffice it to say that it is on the basis of reciprocity that the Republic of Chile first sought the extradition of the petitioner as mentioned in the Note Verbale of 24'h February, 2015. The same principle of reciprocity was resorted to by the Government oflndia when it sought the extradition of Abu Salem from Portugal, although the request made by the Government of India to Portugal sought his extradition also by relying on the International Convention forthe Suppression of Terrorist Bombings. Justice Ganguly, however, points out in paragraph 63 of the Report that "The primary consideration for the request of extradition was the assurance of reciprocity."

128. For invoking the principle of reciprocity, there need not even be an extradition treaty between India and the foreign State as is apparent from a reading of the decision of this Court in Abu Salem. In fact, India did not have any extradition treaty with Portugal and yet it made a request for the extradition of Abu Salem on the basis of reciprocity. It is only around the time that the re4uest was made that the Government oflndia issued a notified order under Section 3( I) of the Act directing that the provisions of the Extradition Act, 1962 other than Chapter III shall apply to the Republic of Portugal. H

p. 100

A 129. We are, therefore, in agreement with the submission of the learned Additional Solicitor General that on the basis of a request made by Chile as contained in the Note Verbale of 22"ct September, 2015 the petitioner could have been validly detained and placed under provisional arrest under Section 34-B of the Act, on a reciprocal basis, Extradition Treaty or no Extradition Treaty between India and Chile. The further B requirement (in terms ofSection 34-B of the Act) would however be for Chile to make a formal request for extraditing the petitioner from India on the basis of credible evidence against her of having committed an extradition offence punishable both in Chile as well as in India. Subsidiary issues c

130. It was also submitted by learned counsel that the Government oflndia had not applied its mind at all when the Act was made applicable to the Republic of Chile. This argument is also without any basis and learned counsel has not pointed out or suggested any general or specific procedure that the Government of India should follow for making the D Act applicable to a foreign State, except the issuance of a notified order under Section 3(1) of the Act. Admittedly, such a notified order has been issued in respect of the Republic of Chile and the natural presumption is that this official act has been done after due application of mind. In any event, whether the Extradition Act is to be made applicable to a E foreign State or not is entirely a political decision to be taken by the Government oflndia and there must be judicial abstinence in this regard. We have no doubt that this is an area that cannot be the subject matter ofjudicial review.

131. It was also submitted that the High Court ought not to have given liberty to the Government oflndia to once again initiate the process of extradition. The submission is misplaced. It is really for the Republic of Chile to decide whether it would like to have the petitioner extradited or not. The Government oflndia has no say in the matter. The Republic of Chile decided to renew its request for the extradition of the petitioner in November, 2015. The Government oflndia chose not to ignore that request but to act upon it. That is a political or diplomatic decision that the Government of India took. The petitioner has no say in the matter and judicial abstinence on such an issue prevents us from commenting on the decision. Dissemination of information

H 132. Finally, learned counsel for the petitioner commented on the

p. 101

[MADAN B. LOKUR, J.]

dissemination of information by the Ministry of External Affairs through its official website. It was pointed out that the official website informs everybody that India had entered an extradition treaty with Chile in 2015. Learned counsel relied on this information to contend that the Government oflndia does not recognize the Extradition Treaty of 1897 and there is no extradition treaty entered into with Chi le in 2015. Consequently, the entire proceedings against the petitioner are vitiated.

133. It is extremely unfortunate that the official website of the Ministry of External Affairs gives misleading information not only to Indians but also to the world at large. The learned Additional Solicitor General was quite upset at the misleading information given on the official website and informed us that he had given a piece of his mind to the c concerned officials in the Ministry. Whether amends have been made by the Ministry of External Affairs and whether the.advice given by the learned Additional Solicitor General has been taken by the Ministry of External Affairs in the right spirit or not does not concern us. All that we need say is that in this day and age wht:n communication and communication technology are so important, the Ministry of External Affairs has to be far more careful in the information that it disseminates to the world at large.

134. We may also note the relaxed attitude of the Ministry of External Affairs as evidenced by the manner in which the notified order dated 28 1h April, 2015 was drafted by it. The text of the notified order leaves much to be desired. We have already pointed out three errors in the notified order, none of which should have occurred at al I. The errors only show the laid-back manner in which the Ministry of External Affairs conducts its internal affairs. To make matters worse, the corrigendum gazetted on l J 1h August, 2015 fails to correct the error in the earlier notified order where the Extradition Act, 1962 is referred to as the Indian Extradition Act, 1962. It is time that the Ministry of External Affairs gets over the colonial hangover. Though the error is minor and not substantive, it should not have been there at all. We need say nothing more on this subject except to be optimistic and hope that the Ministry of External G Affairs of the Government oflndia takes matters oflaw far more seriously than is evident from the material on record before us.

135. It is time to realize that India is now a significant and important player in the world stage. Very little attention appears to have been paid to affairs of international law as is evident from the manner in which the H

p. 102

A affidavits have been drafted and filed by the Government of India not only in the Delhi High Court but also in this Court. Most of the relevant material handed over to us in Court by the learned Additional Solicitor General did not form a part of any affidavit filed by the Government of India. True, there is no dispute about the authenticity of the material handed over to us in Court but that is not the issue. What is in issue is the B nonchalant response of the Government oflndia on a matter concerning the liberty of an individual, even if that individual happens to be a foreign national who is in India. Conclusion

c 136. On the basis of the material before us, we hold that there is a binding extradition treaty between India and Chile and that the provisions of the Extradition Act, 1962 (other than Chapter Ill thereof) are applicable to the Republic of Chile in respect of the offences specified in the Extradition Treaty.

D 137. The extradition proceedings pertaining to the petitioner are pending before the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi. We make it clear that we have not pronounced on the merits of the controversy pending before him and have confined our consideration only to the existence or otherwise of the Extradition Treaty between India and Chile. The learned Magistrate should decide E on the extradition of the petitioner on the merits of the case and the evidence before him. Any observations incidentally made by us on the merits of the extradition requisition will not bind the learned Magistrate for the purposes of the final outcome of the proceedings.

138. The writ petition and the criminal appeal are dismissed. No F costs. Devika Gujral Writ petition and appeal dismissed.