2016 Supreme(SC) 329

SUPREME COURT OF INDIA
Madan B. Lokur, N.V. Ramana, JJ.
Verhoeven, Marie-Emmanuelle – Petitioner
Versus
Union of India & Ors. – Respondents
Writ Petition (Criminal) No. 178 of 2015 With Criminal Appeal No. 417 of 2016 (Arising out of S.L.P. (Crl.) No. 8931/2015)
Decided On : 28-04-2016

MAIN POINTS
There is a binding extradition treaty between India and Chile.
Even in absence of a binding extradition treaty, general principles of international law do not debar the requisition.
Even a French national living in India can challenge existence of extradition treaty between India and Chile.
Issues of termination of a treaty or performance of treaty obligations being political questions left open.
Arrest of a foreign national is not precluded by absence of Red Notice.
Request made by Embassy of a foreign State is as good as a request made by the foreign State itself for the purposes of section 340-B.
Existing of an extradition treaty is not necessary for invoking the principle of reciprocity.
Application of the Act to a foreign State is a political decision. Cannot be the subject matter of judicial review.
If a foreign State to which the Act is made applicable makes a request, Government of India has no choice. Court cannot comment on such decisions.
Casual and relaxed approach in drafting of notified order and uploading data on official website sending wrong message to the whole world, deprecated.

Headnote:(a) Extradition Act, 1962 – Section 2(d) – There is a binding extradition treaty between India and Chile in terms of Section 2(d). (Para 2)

       (b) International law – Even in absence of a binding extradition treaty, general principles of international law do not debar the requisition. (Para 3)

       (c) Constitution of India – Article 21 – Benefits all persons in India, including non-citizens – therefore even a French national living in India can challenge existence of extradition treaty between India and Chile. (Para 6)

       (d) Extradition Act, 1962 – Section 3(1) and 3(3) – Extradition treaty with Chile – Appropriate order notified on 28th April, 2015 making the Act applicable to the Republic of Chile – Reference to GSR 56, section 4(1) instead of section 3(1) and Indian Extradition Act, 1962 instead of Extradition Act, 1962 – Make the notification defective – Corrigendum dated 11th August, 2015 – Deleting GSR 56 and substituting section 4(1) by section 3(1) – However name of the Act not corrected from Indian Extradition Act, 1962 to Extradition Act, 1962 – Casualness in legislative matters deprecated – Application of the Act to Chile would be effective only from 11th August, 2015 and not 28th April, 2015. (Para 30, 32, 35)

       (e) Extradition Act, 1962 – Section 3 – Government of British India and the Government of India always considered itself bound by the Extradition Treaty entered into with the Republic of Chile on 26th January, 1897 – Government of India has always viewed the Extradition Treaty to be in force in India – Government of Chile had always felt bound by the treaty of 1897 so far Government of UK is concerned – However it was not sure about Government of India in view of section 3(1) – After notification of April 2015 Supreme Court of Chile also opining specifically that the treaty is in force in India – Both from the point of view of Chile and India, the Extradition Treaty is in existence and binding upon each State. (Para 78, 96)

       (f) Extradition Act, 1962 – Section 2(d), 3(1) and notified order of 28th April, 2015 – Conclusively establishing that India was bound by the extradition treaty with Chile. (Para 107)

       (1994) 2 SCC 80; 1950 SCR 573 – Relied upon

       (g) Extradition Act, 1862 – Section 2(d) and 3(1) – Article XVIII, Extradition Treaty, 1897 – Government of India not resorting to Article XVIII to terminate the treaty – Overtly accepting and acknowledging the treaty and making the Act applicable to Chile – Held, India bound by the treaty. (Para 109, 110)

       (h) Extradition Act, 1962 – Section 3 – Existence or otherwise of an extradition treaty – Contention that word of the Government of India on the existence of a treaty should be accepted – Cannot be accepted fully – Issues of termination of a treaty or performance of treaty obligations being political questions left open. (Para 111, 119)

       418 F.2d 679; 184 U.S. 270 (1902); 211 F.2d 565; 355 F. Supp. 1155 [S.D.N.Y. 1973]; 369 U.S. 186; 331 U.S. 503; (2011) 11 SCC 214 – Relied upon

       (i) Extradition Act, 1962 – Section 34-B – Red Notice – Arrest of person – Not precluded by absence of Red Notice. (Para 122)

       (2009) 9 SCC 551 – Relied upon

       (j) Extradition Act, 1962 – Section 34-B r/w section 2(e) – Arrest of a foreign national on request by foreign state – Request made by Embassy of a foreign State – As good as a request made by the foreign State itself – No infirmity in arrest of petitioner on request by Embassy of Chile. (Para 123)

       (k) International Law – Reciprocity – Note Verbale of 24th February, 2015 – Existing of an extradition treaty not necessary for invoking the principle of reciprocity – Note Verbale rightly acted upon. (Para 128, 129)

       (1994) 2 SCC 80; 184 U.S. 270 (1902); (2011) 11 SCC 214 – Relied upon

       (l) Extradition Act, 1962 – Section 3(1) – Applicability of the Act to foreign State – Only requirement is issuance of a notified order u/s 3(1) – Requirement satisfied – Application of the Act to a foreign State – A political decision – Cannot be the subject matter of judicial review. (Para 130)

       (m) Extradition Act, 1962 – Section 3(1) – High Court giving liberty to reinitiate process of extradition – Government of India has no say in the matter – If a foreign State to which the Act is made applicable makes a request, Government of India has no choice – Court cannot comment on such decisions. (Para 131)

       (n) Administrative law – Drafting of notified order and uploading data on official website – Casual and relaxed approach sending wrong message to the whole world – Deprecated. (Para 134, 135)

       Facts of the case:

       The Republic of Chile has sought the extradition of the petitioner who is believed to be a French national. The petitioner is accused of being a conspirator in the assassination of a Chilean Senator on 1st April, 1991. She was sought to be extradited from Germany but the proceedings terminated in her favour. She was then sought to be extradited from India but the Delhi High Court held that the extradition proceedings initiated against her were not in accordance with law. The present proceedings have arisen out of yet another requisition made by the Republic of Chile for her extradition to Chile to face trial in the assassination of the Chilean Senator.

       Finding of the Court:

       There is a binding extradition treaty between India and Chile and that the provisions of the Extradition Act, 1962 (other than Chapter III thereof) are applicable to the Republic of Chile.

       Result:

       Writ application and criminal appeal dismissed.