Abu Salem will create a record for escaping the noose
Abu Salem, the handsome billionaire gangster, who has been convicted by the TADA court for the serial bomb blasts in 1993, will make Indian judicial history because he will escape the death sentence despite being convicted for the second time for a capital offence. The TADA court had sentenced him to life imprisonment in February 2015 for the murder of builder Pradeep Jain in 1995. This Dawood Ibrahim acolyte is implicated in over 50 cases of murder and extortion in India.
When a convict undergoing life imprisonment is convicted for an offence carrying the death sentence while he is in jail, the court normally sentences him to death. But what will obstruct the TADA court from awarding the death sentence to Abu Salem is former deputy prime minister L.K. Advani’s promise to Portugal while seeking his extradition in 2002 that the gangster would not get the death sentence or a sentence of more than 25 years in jail.
Advani himself has to face a criminal trial for demolition of the Babri Masjid and normally could not have assured Portugal what the Indian judiciary would do or not do because the judiciary is totally independent of the executive – at least theoretically. But Advani’s promise binds the judiciary as it comes within the gamut of the Indian Extradition Act, 1962. Portugal also does not have an extradition treaty with India but the extradition request was granted by the Portuguese Supreme Court.
Salem, who is worth billions of rupees, has already spent nearly a crore on lawyers’ fees and has approached the European Court of Human Rights seeking his return to Portugal. He alleged that his presence and trial in India is illegal because he is being tried for offences which carry the death penalty. This argument by his lawyers has been upheld by Portugal’s court of appeal and confirmed by Portugal’s Supreme Court.
International law is also called conflict of laws because an offence which carries the death penalty in India does not do so in Portugal. Hence, the requesting state which is India, is bound to honour the conditions imposed by the extraditing state which is Portugal. In this case, the Portuguese court had said in 2005 that Salem could not be given the death sentence which was abolished in Portugal.
Salem’s lawyers have moved the European Court of Human Rights to ensure he is repatriated to Portugal. Salem had fled to the USA but the CBI tipped off the FBI which tailed him making him flee to Portugal on tailor-made documents and a passport. And so we have a piquant situation where a billionaire gangster who was born at Azamgarh in Uttar Pradesh and was a conspirator in the serial bomb blasts of 1993, apart from planning the murder of many other Indian citizens, will escape the noose. Like his boss, Dawood Ibrahim, Salem will escape the noose.
These are the pitfalls of international law which the TADA court is bound to honour although the Indian judiciary is theoretically not shackled by the executive. International law signifies India is bound to honour its commitments to Portugal although there is no enforcing authority above both the countries except the International Court of Justice which deals with disputes between states.
On the other hand, sovereignty means India is answerable only to itself and to no other nation which is why we have emerged as a formidable nuclear power, ignoring global censure when we first tested our atomic bomb in 1975. The judiciary of one country deals with the judiciary of another country when extradition requests are made through the embassies of both the requesting state and the state which has been requested to extradite a fugitive. Salem has proved he is more than a match for our investigative agencies because his lawyers have stymied the death penalty for their client.
Politics also plays a vital role during extradition because if the crime committed on Indian soil is glossed over by the political party in power, the extradition requests are not pressed with urgency. This is what took place when the Hinduja brothers were charged with involvement in the Bofors scam when those in the Rajiv Gandhi government allegedly took bribes.
Justice R.S. Sodhi of the Delhi high court quashed the charges framed against Srichand and Gopichand Hinduja in 2005 in the absence of original documents which was not obtained by the CBI. The third brother, Prakash, ironically holds a Swiss passport where the Swedish gun manufacturer, A B Bofors, had its headquarters.
The Congress never showed any inclination to pursue the matter seriously against the Hinduja brothers who are the richest British citizens and own a sprawling six-storied Carlton House mansion in London. Money can hire the best legal brains to defeat justice in India because, well, sometimes, the rich are ensured speedier justice than the poor.
And so, it appears that Abu Salem will escape the death sentence but will spend the rest of his life in jail. Perhaps in Portugal which follows the civil law system unlike India and is not rigidly bound by the law of precedent as in India.
INTERNATIONAL law is also called conflict of laws because an offence which carries the death penalty in India does not do so in Portugal. Hence, the requesting state which is India, is bound to honour the conditions imposed by the extraditing state which is Portugal. In this case, the Portuguese court had said in 2005 that Salem could not be given the death sentence which was abolished in Portugal