Abu Salem gets a released statement from SC on the 1993 Mumbai Blasts. Abu Salem in his plea informed that his sentence could not be more than 25 years according to a courtly assurance given by India to Portugal for his handover in 2002.
The Supreme Court of India gave a final call on July 11 that the Centre was “certain to” the President of India to suspend the life sentence of gangster Abu Salem who was actively involved in the 1993 Mumbai blasts. On completion of 25 years of imprisonment, his jail term was part of the national commitment made to Portugal during his banishment.
The 25-year period was calculated from his imprisonment on October 12, 2005. According to Article 72 of the constitution, the central government is bound to advise the current President about the release after completing 25 years of imprisonment.
According to the law, all the official papers should be forwarded to the President on a time gap of one month from Salem’s completion of 25 years behind the bar.
The Centre could itself consider the suspension on the completion of 25 years sentence according to Sections 432 and 433 of the Code of Criminal Procedure.
The court, however, reduced the 25-year timeline from September 18, 2002, when Salem was in Portugal for a different offense.
Partition of powers
Indian law refused to give the life sentence given to Salem, as the domestic courts of India were not bound by the treaties between the governments of Portugal and India. The Indian law follows the principle of partition of powers.
Salem had declared that he should not have been punished with a life sentence taking into consideration that the head of India had given the assurance to Portugal during his extradition.
“Punishment cannot be unequal, high or low. It should not be cruel but should fulfill the purpose of obviating crime in society by serving justice to the victims as well as their families. Looking at the seriousness of the offense, there is no question of this court exercising any special power to commute Salem’s life sentence,” the court highlighted.
No extraterritorial application is there according to the criminal law. Court also mentioned the fact that Salem had a Red Corner Notice furnished against him.
The case had set off concerns within the Supreme Court about the “international effect” India may face if seen to countermand “solemn” promises made to foreign powers and their courts while securing extradition.
Advani gives assurance not a guarantee
Salem’s case was built around his argument that his time was illegal because the then Deputy Prime Minister and residential Minister L.K. Advani had given an “earnest sovereign assurance” to a Portugal court that he would neither be sentenced to death nor serve over 25 years in prison.
However, the Central Bureau of Investigation, during a recent affidavit, had maintained that Mr. Advani’s assurance was no guarantee.
In fact, an affidavit filed by Union cabinet minister Ajay Kumar Bhalla had urged the court to concentrate on deciding Salem’s appeal against his conviction and sentence in the Mumbai blasts case on its merits instead of taking into consideration any “assurance” given by India to Portugal.
The court, while reserving its judgment within the case in April, had expressed its displeasure at the govt for “hemming and hawing” over its solemn assurance to Portugal.
The bench said that arguments made by advocate Rishi Malhotra who was fighting for Salem were that the court should take and give a solemn assurance and decrease the punishment from a life sentence to 25 years of imprisonment, or else the government should take a direct call on the assurance given during his extradition.
