Lifer to Salem raises legal debate

Gangster Abu Salem Abdul Qayoom Ansari, the only case of successful extradition by India of an accused from a European country, was given a sentence of life imprisonment. He was sentenced on Thursday after being convicted by a specially designated TADA court in the 1993 Mumbai blasts case in which 12 bombs exploded at several locations across Mumbai, killing 257 people and injuring 713, besides destroying property worth Rs 27 crore. His case appears to be raising an issue since he may not actually be provisioned to spend more than 25 years behind the bars because of a sovereign undertaking by India to Portugal while extraditing him in 2005.

Though many legal experts have the opinion that since the fugitive was handed over to India only on certain terms and conditions, defying them might lead to an international humiliation. The answer in this connection has already been provided by the Supreme Court in 2012 while hearing Salem's petition that he could not be tried for the offences which involved death penalty as agreed by the Indian government at the time of his extradition. The Apex Court, in its verdict, categorically said that Portugal had no right to impose any pre-condition on Indian courts. Incidentally, in 2005, a Portuguese court agreed to the extradition of Abu Salem to India to stand trial for his role in the 1993 blasts case, after arbitrations in accordance with a UN convention for mutual cooperation in terror investigations between countries. And, since India and Portugal had no formal extradition treaty, it was deemed to be treated as an extradition treaty as per the Indian Extradition Act 1962. It clearly states under its Clause 34C mentioned in Chapter V of this Act: "Notwithstanding anything contained in any other law for the time being in force, where a fugitive criminal, who has committed an extradition offence punishable with death in India, is surrendered or returned by a foreign State on the request of the Central Government and the laws of that foreign State do not provide for a death penalty for such an offence, such a fugitive criminal shall be liable for punishment of imprisonment for life only for that offence." Since the Indian government has not been found to be deliberately tampering facts and cases known to them before and has also found new evidence against the Mumbai blasts accused after his extradition, the accused would be tried for fresh material under the Indian law and procedure of the Indian judiciary. Further, this will not be a violation under any circumstance. Moreover, it is not the first time that Salem had been awarded life imprisonment. Earlier in 2015, another special TADA court had sentenced the Azamgarh gangster to life imprisonment and slapped a fine of Rs 8 lakh, in the case of the murder of builder Pradeep Jain in 1995. It may be noted here that Portugal, from where Abu Salem was extradited, has abolished death penalty in 1867. The clause in the Extradition Act, therefore, meant that Salem could not be sentenced to death as per law. Senior CBI counsel Deepak Salvi had also said that while Abu Salem's acts were no less than those of other convicts and he deserved a death penalty, he could not ask for a death sentence for him. The CBI prosecution counsel might have wanted to ask for a death sentence for Salem, such a sentence would have created a massive diplomatic incident and Portugal could also have had the grounds to approach the International Court of Justice for the breach of a treaty. Imprisonment for life does not appear to be a violation as such, because according to the treaty, Salem was not given capital punishment as Portugal had abolished the death penalty in their country. Under the criminal procedure code of India, though the imprisonment for life is for the entire life of the convict, the jail manual provides for various categories under imprisonment for life. The categories start from imprisonment for 14 years and go on above, but not till death. Further, this life sentence could be seen as slightly controversial since the extradition agreement in 2005 reportedly also specified that the maximum term of imprisonment for Salem would be 25 years; then how about 24 years and 364 days?