New Delhi: The Indian government is “required” to ensure that gangster Abu Salem’s life sentence is commuted to 25 years, the Supreme Court has held. This means that Salem, convicted for his role in the 1993 Mumbai blasts and a 1995 murder, will likely walk free by November 2030.
The basis for the SC’s judgment was a 2002 extradition agreement between India and Portugal, where Salem had been trying to hide out.
India had assured Portugal that if Salem were extradited, he would not be given the death penalty or imprisoned for more than 25 years.
However, in 2015, Salem, was sentenced to life imprisonment by a Mumbai court in connection with the 1995 murder case, and again in 2017 by a special court in the 1993 blasts case.
Salem petitioned the Supreme Court in 2015 and 2018, contending that the trial court order breached the “solemn sovereign assurance” given to Portugal on 17 December, 2002, by the then Deputy Prime Minister L.K. Advani. This matter was finally decided by the apex court Monday.
In view of the extradition agreement, the SC directed the central government to “advise the President of India” to exercise powers under Article 72(1) of the Constitution to commute Salem’s remaining sentence.
The court added that the government could also exercise its own powers under sections 432 or 433 of the Code of Criminal Procedure, which allow for the suspension and commutation of a sentence.
The court rejected the government’s argument that Salem’s release should be considered only once he completes 25 years in jail.
Speaking to ThePrint, Salem’s lawyer Rishi Malhotra said that the SC’s ruling gave a “positive direction” to the government to take steps for the convict’s release.
Malhotra added that this was the second time that Salem had approached the Supreme Court to push the Indian government to “honour its commitment” to Portugal. He won the first time too, in 2013, and nearly got Portugal to terminate the extradition.
Here is a look at the cases against Salem and how he successfully invoked the treaty with Portugal twice.
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Cases against Salem
The Supreme Court noted that Salem’s history is “not a palatable one at all”. He was part of Dawood Ibrahim’s crime syndicate and allegedly involved in numerous crimes.
Among these were the 12 March 1993 Mumbai blasts, in which more than 250 people were killed. In its FIR, the Central Bureau of Investigation alleged that Salem stored, transported, and distributed arms and explosives from Gujarat to Mumbai.
To evade arrest, Salem fled Mumbai and eventually made his way to Portugal using a fake Pakistani passport.
Meanwhile, another case against Salem was registered in India on 7 March 1995, in connection with the murder of Pradeep Jain, a Mumbai builder. In addition to murder and extortion, Salem was also accused under sections of the Arms Act and the erstwhile Terrorist and Disruptive Activities (Prevention) Act, better known as TADA.
Salem did not appear before court, so he was declared a proclaimed offender and later shown as an absconder.
A non-bailable warrant was issued against him, followed by an Interpol Red Corner notice, which alerts police worldwide to international fugitives, on 18 September, 2002.
On the same day, Salem was convicted and sentenced for travelling using a fake passport in Portugal. Separately, he was also detained there on the basis of the Red Corner notice.
India’s ‘sovereign assurance’
The Indian government submitted a request for Salem’s extradition from Portugal on 13 December, 2002.
Later that month, the Indian government gave a “solemn sovereign assurance” that Salem would not be given the death sentence or imprisonment beyond a term of 25 years.
On 28 March, 2003, Portugal’s Ministry of Justice allowed for Salem’s extradition under section 302 of the Indian Penal Code (murder), section 120-B IPC (criminal conspiracy) and section 3 (2) of TADA (terrorist activity). The order dropped the remaining sections of TADA and the Arms Act, which meant that he would not be prosecuted under those charges back in India.
Salem remained under judicial custody in Portugal until November 2005. He was finally handed over to the Indian authorities after his appeals against the extradition order were dismissed.
However, Portugal’s Supreme Court said that in case India breached its undertaking, Portugal could terminate the extradition. It further emphasised that under the “principle of speciality”, Salem should be tried only for the alleged offences mentioned in the extradition request.
Salem’s first ‘victory’
Within months of his transfer to India, Salem cried foul that India was violating the “principle of speciality” by prosecuting him under charges exceeding what had been decided in the agreement with Portugal.
He moved the apex court to quash these charges on the grounds that his extradition order barred his trial under the said sections. Salem made a similar plea before the Court of Appeal in Lisbon, claiming that the charges levelled violated the extradition order.
In September 2010, the SC ruled there had been no violation of the “principle of speciality”, but a year later, the Lisbon court gave a contrary finding and ordered the termination of the extradition agreement.
India appealed against this order but lost before the two higher judicial platforms — the Supreme Court of Portugal as well as the Constitutional Court.
Thereafter, the CBI rushed to the apex court and prayed that in the interest of comity of courts and to counter global terrorism, the agency should be allowed to withdraw the extra charges against Salem.
In August 2013, the Supreme Court allowed the CBI’s application to withdraw the additional charges. It was a victory for Salem, but the Mumbai trial court hearing the cases against him had other plans.
What Mumbai courts ruled
The prosecution accepted that the death sentence was out of the question for Abu Salem, but determined that he was still liable for life imprisonment.
The state held that the “solemn sovereign assurance” given by Advani could not serve as a guarantee that no court in India would award punishment under Indian law.
While awarding life sentences to Salem, the two trial courts maintained that to punish a convict fell within their jurisdiction. On the other hand, the execution of the punishment fell within the executive’s domain, leaving the government to decide on how it chose to abide by its assurance.
Up to Centre, not court to honour ‘assurance’
In response to Salem’s challenge in the SC, the Centre initially took a non-committal stand, but later filed an affidavit stating it would “honour” its assurance, but only once the period of 25 years expired.
Turning down this explanation, the Supreme Court said it was necessary to make it time bound so that it does not result in an “unending exercise”.
The SC noted that it was outside the powers of the court to commute Salem’s sentence, but it fell to the Government of India to “act in terms” of the assurance it had given Portugal.
Failure to do so, it noted, would give Portugal “the right to timely demand devolution of the person to be extradited through diplomatic or judicial channel”.
The SC, however, dismissed Salem’s contention that his period of sentence should be calculated from the day he was arrested in Portugal. His term of sentence would commence from November 2005, when he was officially handed over to the Indian authorities, the court said.
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