‘Can’t lecture judiciary’: SC raps Centre over Salem stand
NEW DELHI: It is not for the Union home secretary to lecture the judiciary on what it should do and should not do, the Supreme Court said on Thursday, as it took strong exceptions to a few points made by home secretary Ajay Kumar Bhalla in an affidavit that was filed by him over limiting gangster Abu Salem’s jail term to 25 years, as per the diplomatic assurance given by India to Portugal in 2002.
A bench, headed by justice Sanjay Kishan Kaul, said it does not reflect well on the central government when the officers at the highest level are not able to take a stand and make superfluous statements instead, trying to tell the judges how they should decide cases.
“He (Bhalla) should not be reminding us what we should do. We will do what we have to do. He himself took two opportunities to file an affidavit. We don’t take too kindly to this... There are many sentences in this affidavit we don’t appreciate. There are superfluous submissions and look like an attempt to lecture the judiciary on what it should do,” remarked an anguished bench, which also included justice MM Sundresh.
The bench was referring to parts of Bhalla’s affidavit filed on Monday in response to a court query whether the 1993 serial blast convict Salem will be released after serving 25 years in prison, as promised in 2002 by then deputy prime minister and home minister LK Advani to the courts in Portugal. Salem was extradited to India in November 2005. He is currently serving life terms in two separate cases relating to the 1993 blasts and the murder of Mumbai businessman Pradeep Jain in 1995.
Submitting a five-page personal affidavit, Bhalla responded by saying that Salem is entitled to being released in November 2030 after serving 25 years in prison, and that the Indian government is bound by its executive assurance that he would neither be sent to the gallows nor imprisoned beyond 25 years after his extradition to India.
However, in certain parts of his reply, Bhalla termed Salem’s plea “pre-mature” and “based on hypothetical surmises” that can never be raised in his appeal against conviction and life term in the Mumbai serial blast case, adding the top court should rather decide Salem’s appeal merit. He also included a caveat that the period of 25 years will be abided by the government “at an appropriate time subject to remedies which may be available”.
Irked by the top officer’s contentions, the bench on Thursday commenced the hearing by questioning additional solicitor general (ASG) KM Nataraj how Bhalla can ask the court to ignore everything else and decide the case on merit.
“We are sorry! The home secretary is nobody to tell us what we should decide first and how we should decide...What’s this? Who is he to tell us what we should do? If he wants to invite our comments, we will say it in our order. Is this how the senior most official in the home ministry should file an affidavit?” the bench asked Nataraj, who was appearing for the Centre and the Central Bureau of Investigation in the matter.
The court added that the home secretary was asked to take a categorical stand since a reluctance in honouring a diplomatic assurance may hamper extradition of other fugitives being pursued by the government from other countries. “After taking a stand, it is not for him to tell us what we should do. It is then for us to proceed with the matter as the law permits,” it said.
The ASG argued that relationcase ships between countries change and therefore, a convict should not be allowed to pursue his case on the basis of diplomatic assurances between countries. He also tried to justify the rider that the period of 25 years is subject to remedies available under the law.
The bench retorted: “Are you saying you don’t want to stand by your international assurances or that your assurances can change from time to time depending on the situation? It is unfortunate that the government cannot take a stand before the court... We are sorry that they aren’t capable of taking a stand before the court which they are duty bound to take. It doesn’t reflect well at all.”
The court also rejected Bhalla’s submission that Salem should not be allowed to raise the plea regarding the diplomatic assurance at this stage since he was yet to serve 25 years behind bars. “This is completely wrong. Whatever he (Salem) has to say, this is the stage. If he accepts his punishment, how can the home secretary tell us that we must still decide this appeal? What you are effectively telling us is we should postpone the hearing until he completes 25 years. We cannot accept that,” it said.
“You say that the commitment would be abided with at an appropriate time. We asked you, you had to answer. There was no requirement for your home secretary to lecture us… How can he say that there is no question of the convict arguing based upon the assurance given?”it asked the ASG.
In its order, the court said: “The affidavit (by Bhalla) states that it is legally untenable to club the assurance with the merits of the case and he should argue the appeal on merits. Thereafter, it is said that the court may decide the appeal on merits. As to what this court has to do or not to do, it is for the court to take a call on. We do not appreciate the tenor of the affidavit.”
The order added that if a convict accepts his guilt, it cannot be said that the court must hear the appeal on merits. “We have to take a call on the effect of assurance and we cannot postpone the hearing on that basis nor is it permissible for the government to say that it is not open for him to raise this issue. As an appellant, he is entitled to raise this issue,” it said.
Advocates Rishi Malhotra and S Hari Haran, appearing for Salem, submitted that their client’s sentence should be guided by the solemn assurance given by the Indian government to Portugal.
The case was adjourned to May 5. CBI, the prosecuting agency, has argued that Salem is not entitled for a set off from the date of the order of his extradition in 2003 but that his custody should be counted from the date he was handed over to the Indian authorities in 2005.