Two incidents – demise of my friend Banbit Roy in New Delhi recently, the Supreme Court of India asking the Home Secretary to file an affidavit about the death penalty issue in Abu Salem case pushed me to write this.
Banbit Roy, a Foreign Service officer was the joint secretary in Ministry of External Affairs (MEA), and I was in CBI. We had netted Abu Salem in Lisbon, Portugal.
Banbit and my relations had commenced on a blow-hot, blow-cold manner as we had not able to make any headway for two days in treaty negotiations with Ukraine, whose President was scheduled to visit India shortly and the treaties on Extradition and Mutual Legal Assistance were slated to be signed.
Then, learning about my MEA stint, Banbit relented and asked me to lead the negotiations and within the next two days we smoothly finalized the two texts which are testimony to the strong India-Ukraine relations. Our relations warmed up too.
Portuguese Constitution prohibited extradition if the offences could be visited by death penalty and the punishment imposed had to be less than 25 years. Our investigation, intelligence agencies and prosecutors were held captive by the strong urge to inflict death penalty as per law and the fact that life imprisonment can be ‘for the rest of the life’.
The then solicitor general and advocate general also stuck to the position – the chances of Abu Salem’s return looked dim. The investigating agencies would not relent. Then one morning Banbit called me up again “What do we do with Abu Salem? How do we go about the death penalty?” he asked. “Sir, it is simple. Where there is a will there is a way” I said, and he asked me to see him. I insisted that he ‘tell’ the then Director CBI PC Sharma to allow me to help MEA.
Banbit called up PC Sharma and within minutes I was on my way to Patiala House. We quickly came to Abu Salem, and I said “Sir, the question is whether we want him back? If yes, then we have to be ready for compromises. Secondly, how can a country violate its own Constitutional provisions?” He agreed and said, “How do we go about it?” and I explained my view to him while he showed me the opinions of the legal luminaries. I suggested that we put those aside while I drafted a fresh one based on the extant Indian laws. In the next one hour, we had a document ready – it was christened as “Sovereign Assurance” later – that the accused, post-trial would not be visited by death penalty or a punishment of more than 25 years. The assurance was rooted in the provisions of the CrPC and the Indian Constitution which empower the Government and the President of India to grant pardons, reprieves, amnesty, remissions, and commutation etc of sentences.
Banbit and I quickly finalized it. The powers of the President are almost absolute, however, we carefully drafted the assurance – the death penalty would either not be imposed or if imposed, would not be carried out. Ditto for the 25 years clause too.
Later, the then Deputy Prime Minister Mr LK Advani finally signed the ‘sovereign assurance”. Now, under the current issue being agitated by the CBI for ‘death penalty’ being imposed and Abu Salem opposing it as a contravention of the ‘sovereign assurance’ and international commitment has to be seen from a slightly different perspective too – whether the CBI can seek the death penalty or not? Whether a punishment of more than 25 years can be imposed or not?
The Supreme Court has rightly asked the Government of India on whether it intends standing by its international commitments. Any default on the promises made could lead to other countries refusing to extradite Indian fugitives where ‘conditional return’ is made.
However, there is also a window for the investigation agencies to push their case – they can seek death penalty and even punishments exceeding 25 years. The only bar and promise being that the ‘excessive punishments’ shall not be carried out. Therefore, despite imposition of sentences, the executive would have to wield the magic wand and ‘wave off’ those parts of the sentences which are in excess of sovereign commitments. The executive is empowered to do so. Getting a death penalty awarded would only satisfy the egos and mindsets of the law enforcers and the victims, their families and survivors that they were able to get the maximum punishment awarded – execution would remain a far cry. A word of caution, though, is necessary – once sentences are imposed, protracted legal battles would continue. In this case where the upper limit on the quantum of punishment is already known, the battles are avoidable. Ambiguity will help other similarly placed fugitives to delay their extradition. Criminals like Salem are involved in numerous cases. He was extradited in only nine cases, and he can thus only be prosecuted or punished in these cases. However, that does not mean that he cannot be prosecuted in other crimes. For that to be done, either we ought to seek permission from Portugal for other cases or he would have to be afforded an opportunity to return before launching proceedings for other crimes. These aspects need to be looked into. The sooner the better. Getting a fugitive criminal back to face the legal process is of prime importance and we need to be prepared to make pragmatic and permissible concessions to ensure that the primacy of the legal process is maintained. If we dither in making concessions, the fugitives may continue to dig holes in law and order and diplomacy both. Rest In Peace Banbit Sir!
Rupin Sharma is 1992-batch IPS officer of Nagaland cadre. At present he is serving as the Director-General of Prisons, Home Guards & Civil Defence.