AI Drafter 
TaxTMI 
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2016 (4) TMI 1451
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....ally important, is assuming there is no binding extradition treaty between India and Chile, whether a requisition by Chile invoking the principle of reciprocity and the general principles of international law for extraditing the Petitioner from India is maintainable. In our opinion, the general principles of international law do not debar the requisition. However, whether the Petitioner ought to be extradited or not is a decision that the concerned Magistrate, before whom the extradition proceedings are pending, will need to take on the evidence and material before him. 4. The case before us has a chequered history inasmuch as the Republic of Chile has sought the extradition of the Petitioner who is believed to be a French national. The Petitioner is accused of being a conspirator in the assassination of a Chilean Senator on 1st April, 1991. She was sought to be extradited from Germany but the proceedings terminated in her favour. She was then sought to be extradited from India but the Delhi High Court held that the extradition proceedings initiated against her were not in accordance with law. The present proceedings have arisen out of yet another requisition made by the Republi....
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....ed for the application of that Act, unless otherwise provided by an Order in Council, to extend to every British possession in the same manner as if the British possession were substituted for the United Kingdom or England. The operative part of Section 17 of the 1870 Act reads as follows: 17. Proceedings as to fugitive criminals in British Possessions.---This Act when applied by Order in Council, shall, unless it is otherwise provided by such order, extend to every British possession in the same manner as if throughout this Act the British possession were substituted for the United Kingdom or England, as the case may require. 10. Section 26 of the 1870 Act dealt with the interpretation of certain terms used therein and the term 'British possession' meant (inter alia) any colony within Her Majesty's dominions. The term 'governor' meant any person or persons administering the government of a British possession and included a governor of any part of India. 11. Clearly therefore, the 1870 Act applied to that part of India as was a colony within Her Majesty's dominion or was a possession in Her Majesty's dominions. The terms 'British posse....
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.... to each other under certain circumstances and conditions those persons who, being accused or convicted of any of the crimes or offences mentioned in Article II thereof committed in the territory of one Party are found within the territory of the other Party. Article II of the Treaty provided for the reciprocal extradition for, inter alia, the crime or offence of murder (including assassination, parricide, infanticide, poisoning) or attempt or conspiracy to murder. 14. Article VIII of the Treaty provided that the requisition for extradition shall be made through the diplomatic agents of the High Contracting Parties respectively and that the requisition must be accompanied by a warrant of arrest issued by the competent authority of the State requiring the extradition and also by necessary evidence which, according to the laws of the place where the accused is found, would justify his arrest if the crime had been committed there. 15. The Treaty having been signed, an Order in Council was made on 9th August, 1898 and this was published in the London Gazette on 12th August, 1898. Both the Order in Council and the London Gazette embodied the text of the Treaty between the United K....
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....been an offence committed within the local limits of his jurisdiction, directing him to inquire into the case. (2) The Magistrate so directed shall issue a summons or warrant for the arrest of the fugitive criminal according as the case appears to be one in which a summons or warrant would ordinarily issue. (3) When such criminal appears or is brought before the Magistrate, the Magistrate shall inquire into the case in the same manner and have the same jurisdiction and powers, as nearly as may be, as if the case were one triable by the Court of Session or High Court, and shall take such evidence as may be produced in support of the requisition and on behalf of the fugitive criminal, including any evidence to show that the crime of which such criminal is accused or alleged to have been convicted is an offence of a political character or is not an extradition crime. 21. On 7th March, 1904 an Order in Council was made declaring that Chapter II of the Indian Extradition Act, 1903 shall have effect in British India as if it were a part of the Extradition Act, 1870. Consequently, the provisions of Chapter II of the Indian Extradition Act, 1903 which dealt with the su....
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....pter III, to such foreign State or part thereof as may be specified in the notified order. The said Section also provides that where the notified order relates to a treaty State, it shall set out in full the extradition treaty with that State. Section 3 of the Act reads as follows: 3. Application of Act. (1) The Central Government may, by notified order, direct that the provisions of this Act, other than Chapter III, shall apply to such foreign State or part thereof as may be specified in the order. (2) The Central Government may, by the same notified order as is referred to in Sub-section (1) or any subsequent notified order, restrict such application to fugitive criminals found, or suspected to be, in such part of India as may be specified in the order. (3) Where the notified order relates to a treaty State: (a) it shall set out in full the extradition treaty with that State,- (b) it shall not remain in force for any period longer than that treaty; and (c) the Central Government may, by the same or any subsequent notified order, render the application of this Act subject to such modifications, exceptions, conditions a....
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....as an extradition treaty entered into prior to 15th August, 1947. One of the countries so mentioned by Shri D.C. Sharma was Chile. 29. These details have been mentioned for the purposes of recording the submission of the learned Additional Solicitor General that the Extradition Treaty between India and Chile was in force not only before Independence but also thereafter and that is how the Prime Minister of India understood the position. 30. However, even though there might have been an extradition treaty in force between India and Chile, the fact of the matter is that post 5th January, 1963 the provisions of the Act would not be applicable to the Extradition Treaty without an appropriate notified order issued in accordance with Section 3(1) [read with Section 3(3)] of the Act. Apparently realizing this, the Government of India notified an Order dated 28th April, 2015 (gazetted on 29th April, 2015) Under Section 3(1) read with Section 3(3) of the Act making the Act applicable to the Republic of Chile. 31. The notified order contains three errors and it is reproduced below: G.S.R. 328(E) - Whereas the Extradition Treaty between the United Kingdom of Great Britain an....
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....rcise of powers conferred by Section 4(1) of the Indian Extradition Act, 1962. Section 4(1) has no relevance to the context. What is relevant is Section 3(1) of the Act. The third error is that there is no statute called the Indian Extradition Act, 1962. What has been enacted by Parliament is the Extradition Act, 1962. 33. The validity of the notified order dated 28th April, 2015 was challenged by the Petitioner by filing W.P. (Crl.) No. 1215 of 2015 in the Delhi High Court and a prayer was also made for quashing a requisition made by the Republic of Chile for the extradition of the Petitioner from India to Chile. 34. During the pendency of the writ petition, the Government of India having realized the errors committed in the notified order dated 28th April, 2015 issued a corrigendum on 11th August, 2015 (published in the Gazette of India) in which reference to GSR 56 dated 5th January, 1963 was deleted and Sub-section (1) of Section 4 of the Indian Extradition Act, 1962 was substituted to read Sub-section (1) of Section 3 of the Indian Extradition Act, 1962. No correction was made with regard to the so-called Indian Extradition Act, 1962. The casualness with which the corrig....
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....uant to the Red Notice issued by Interpol, the Petitioner was arrested in Germany but the concerned court in Germany held by an order dated 6th June, 2014 that the extradition of the Petitioner was illegal. We are not concerned with the proceedings in Germany and this is being mentioned only for completing the factual background. 39. Much later, on 17th February, 2015 the Petitioner was detained and arrested while crossing the Nepal border at the immigration point in Sunauli, Uttar Pradesh. She was produced before the concerned Magistrate in Maharaj Ganj in Uttar Pradesh and brought to Delhi on a transit remand. She was then produced before the Chief Metropolitan Magistrate, Patiala House Courts, New Delhi on 21st February, 2015 and remanded to judicial custody till 24th February, 2015. 40. Thereafter, on 24th February, 2015 the Petitioner was produced before the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi who ordered her provisional arrest Under Section 34-B of the Act. The Petitioner has been in judicial custody ever since that day. The Petitioner challenged her provisional arrest by filing W.P. (Crl.) No. 666 of 2015 in the Delhi High Court an....
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..... According to the Chilean criminal procedure system, a request for preventive detention - just like a request for extradition-is made and decided by a court, the Executive Power having no bearing whatsoever therein. The Executive is to act at subsequent stages, i.e. administrative and diplomatic stages of an active extradition proceeding. All in all, this request for preventive detention is aimed at extending the detention period of Ms. Verhoeven so that each and every judicial, administrative and diplomatic steps that need to be taken prior to the formal extradition request being filed are carried out in due time, and also at securing that the person sought is at the disposal of the competent authorities of the Republic of India at the time of formally filing the request for extradition. In the light of the absence of a treaty on extradition between both countries, the Chilean Government guarantees to the Government of the Republic of India that the State organs will ensure reciprocity in case a similar request is filed by the competent authorities of your country. The Chilean Embassy expresses the formal intention of the competent Chilean Authorities t....
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....ourt of the docket, it shall remand the same to the court attorney, who shall decide whether the extradition is lawfully proper in accordance with the treaties signed by the nation in which a convict has sought refuge or otherwise, in the absence of a treaty, with the international law principles. Section 638-Upon the Supreme Court's Prosecutor having issued its report, the Court shall afford priority to the case and render a founded decision on whether the extradition is lawful or not. Section 639 (687)-If lawful, the Supreme Court shall send to the Ministry of Foreign Affairs a copy of the decision referred to in the foregoing paragraph and ask that the relevant diplomatic steps be taken to obtain the offender's extradition. It shall also enclose a certified copy of the background information on the merits of which a warrant of arrest was issued against the offender or a final judgment has been rendered, if dealing with a convict. Upon completion of these formalities, the Supreme Court shall return the file to the originating court. 48. Following the aforesaid procedure, the Supreme Court of Justice of Chile rendered a decision on 9t....
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....rrazuriz, perpetrated in Santiago on April 1, 1991, as stated in Clause 1 of this decision. For fulfillment of this decision, be an official letter sent to the Minister of Foreign Affairs so that such diplomatic formalities as necessary be carried out. 52. Pursuant to the decision of the Supreme Court of Chile, another Note Verbale was given by the Embassy of Chile to the Ministry of External Affairs on 24th March, 2015. This Note Verbale acknowledged that the request for the extradition of the Petitioner was being made on the basis of international law principles from multilateral conventions and bilateral treaties on extradition, among which is included the extradition treaty between the Republic of Chile and the United Kingdom of Great Britain and Ireland signed at Santiago on 26th January, 1897 in force for both countries. On the basis of the provisions contained in the Treaty, the Note Verbale also drew attention to the resolution of the Supreme Court of Justice of Chile dated 9th March, 2015, and the arrest warrant issued against the Petitioner on 27th January, 2014 and her indictment on 29th January, 2014 as a principal offender in the terrorist attack carried ou....
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.... of Chile, are duly authenticated by the Ministry of Justice of Chile, the Ministry of Foreign Affairs of Chile and the Embassy of the Republic of India in Chile. The Government of Chile wishes to reiterate to the Government of the Republic of India its full willingness to provide the supplementary information that the competent Indian authorities may deem necessary for the successful development of this extradition case. The Embassy of the Republic of Chile avails itself of this opportunity to convey to the Ministry of External Affairs of the Republic of India the assurances of its highest consideration and esteem. 53. Based on the Note Verbale of 24th March, 2015 and the accompanying documents as well as the notified order dated 28th April, 2015 the Government of India passed an order on 18th May, 2015 noting that the offences alleged to have been committed by the Petitioner are stated to be extradition offences in terms of the Extradition Treaty between Chile and India. Accordingly, a request was made Under Section 5 of the Act to the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi to inquire whether a prima facie case for the extra....
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.... 72. In the present case, such extradition request Under Section 4 of the Act was made by the Republic of Chile through its Embassy on 24.03.2015. However, the fact remains that by that date the provisions of the Extradition Act were not made applicable to the Republic of Chile since the notification under Sub-section (1) read with Sub-section (3) of Section 3 came to be published only on 29.04.2015. We have already held that by virtue of the said notification dated 28.04.2015 published in the Gazette of India dated 29.04.2015, the provisions of the Act are made applicable to the Republic of Chile w.e.f. 29.04.2015 only. That being so, we are of the view that the extradition request dated 24.03.2015 cannot be treated as a requisition for surrender in terms of Section 4 of the Act. In other words, a request made on or after 29.04.2015 can only be acted upon for directing Magisterial Inquiry into the extraditability of the alleged offence committed by the Petitioner in Chile. Therefore, we are of the view that the first Respondent had erred in passing the order dated 18.05.2015 directing Magisterial Inquiry accepting the extradition request dated 24.03.2015 of the Republic of C....
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....st. 60. Apparently, in light of the above developments, NCB Santiago sent a request on 30th June, 2015 to Interpol for the issuance of a Red Notice. This was followed by NCB Santiago sending a diffusion request on 1st July, 2015 to secure the attendance of the Petitioner pending an analysis of its request for the issuance of a Red Notice by Interpol. What is more important is that on 8th July, 2015 the office of the Legal Affairs, Interpol General Secretariat gave intimation to the effect that the Red Notice against the Petitioner is being reviewed by Interpol and that the diffusion sent by NCB Santiago was not in conformity with the Interpol constitution and Rules and therefore the diffusion would be deleted from the Interpol database. A request was also made by Interpol to remove the information recorded against the Petitioner from the national database based on the diffusion. The intimation sent by the office of the Legal Affairs of Interpol General Secretariat reads as follows: "The General Secretariat hereby is referring to the diffusion circulated by NCB Santiago, Chili, on 1 de July de 2015 against VERHOEVEN f/n Marie Emmanuelle (DOB 8 October 1959). Ple....
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.... has the honour to request the Provisional Arrest for the purpose of Extradition of the French National Ms. Marie Emmanuelle VERHOEVEN, born on October 8, 1959, on the basis of the Principles of International Law derived from multilateral conventions and bilateral treaties on Extradition, among which is included the Extradition Treaty between the Republic of Chile and the Republic of India, in force between both countries, and complementarily on the basis of the provisions contained in the said Treaty. It is to be elevated to the highest attention of that Honourable Division the judgment passed Monday 21st September, 2015 by the Honourable High Court of Delhi which in its paragraph number 76, page 46, in the concerned matter of fugitive, stated that "the Respondents have not been precluded to initiate appropriate steps afresh for extradition of Petitioner (FC) by following due process of law." Therefore, since the liberty has already been allowed to Union of India for initiating afresh steps for extradition of Petitioner (FC), it is kindly and urgently requested to the Union of India to provisional arrest for the purpose of Extradition of the FC. The Emba....
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....noted that the provisions of the Extradition Act, 1962 had been made applicable to the Republic of Chile and therefore from the point of view of the Government of India also the Extradition Treaty was in force. 68. The Supreme Court noted that two of the Hon'ble Judges in the Supreme Court of Chile voted for rendering a judgment that supplements the earlier decision of the Supreme Court given on 9th March, 2015. This was because that decision had already established the appropriateness of the request for extradition of the Petitioner. 69. Consequently, the Supreme Court of Chile decreed that it was lawfully appropriate to request the Government of Chile to extradite the Petitioner for the offence alleged against her, namely a terrorist attack carried out on 1st April, 1991 that resulted in the assassination of Senator Jaime Guzman Errazuriz. On this basis, the Republic of Chile gave a Note Verbale on 16th November, 2015 with a formal request to the Government of India for extraditing the Petitioner. 70. The extradition request and the accompanying documents were examined by the Ministry of External Affairs and on 14th December, 2015 an order was issued Under Section 5 ....
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....basis of reciprocity. 74. The Supreme Court of Chile, in its decision rendered on 9th March, 2015 specifically concluded that there is no extradition treaty between Chile and India. Consequently, the Supreme Court of Chile held that a request for extraditing the Petitioner should be based on general international law principles such as those enshrined in the Havana Convention and the Montevideo Convention on Extradition as well as bilateral treaties between several countries and opinio juris. 75. The subsequent Note Verbale of 24th March, 2015 did not (and could not) depart from this decision of the Supreme Court of Chile rendered on 9th March, 2015 that there was no extradition treaty between Chile and India. The request for extradition of the Petitioner was, therefore, made on the basis of the principles of international law derived from multilateral conventions and bilateral treaties on extradition "among which is included is the Extradition Treaty between the Republic of Chile and the United Kingdom of Great Britain and Ireland signed at Santiago on 26th January, 1897, in force for both countries." In any event, Chile acknowledged the existence of the Extradition Treaty o....
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....rtition Proceedings (Vol. III). In the Preface to this volume by the Partition Secretariat of the Government of India on 5th December, 1947 it is stated that the volume has brought together the reports, papers and decisions on all matters connected with Expert Committees III to IX. 80. In paragraph 42 of the Report, a reference is made to Annexure V which contains a list of 627 treaties, conventions, agreements etc. entered into by the Government of India or by H.M.G. in which India or Pakistan or both are interested. Paragraph 43 of the Report refers to the legal position, which is that: "India minus Pakistan will remain the same international entity as she was before partition. She will continue, in respect of the rest of India, to be subject to the obligations and entitled to the benefits of all international engagements to which pre-partition India was a party either directly or through H.M.G., except those in respect of which she is rendered by partition incapable of exercising its rights and performing its obligations. This position will not be affected by any change in her constitutional set-up or by the acquisition by her of the status of a Dominion. The positio....
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.... effect of partition on foreign relation is attached. The Steering Committee are in substantial agreement with the views expressed therein and recommend that the conclusions reached by the Committee be approved. 2. The Expert Committee has been unable to reach an agreed decision on the juridical position regarding the international personalities of India and Pakistan (paragraphs 14 and 15) and its effect, if any, on Treaty Obligations (paragraphs 43 and 44) and membership of International Organisations (paragraph 47). The Steering Committee propose to put up separately a note on this subject for consideration by the Partition Council at a later date." 84. The Steering Committee was silent about paragraph 42 which referred to Annexure V containing the list of 627 treaties, conventions and agreements. Be that as it may, the recommendations of the Steering Committee were approved by the Partition Council, which also noted that the Steering Committee would put up a separate note for its consideration as mentioned. 85. The Steering Committee then put up a note on the juristic position regarding international personality and treaty obligations. This was with respect to who....
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....ional Arrangements) Order, 1947 on 14th August, 1947 which recorded an agreement between the Dominion of India and the Dominion of Pakistan. The Schedule to the Order is important and this reads as follows: "SCHEDULE Agreement as to the devolution of international rights and obligations upon the dominions of India and Pakistan 1. The international rights and obligations to which India is entitled and subject immediately before the 15th day of August, 1947, will devolve in accordance with the provisions of this agreement. 2. (1) Membership of all international organizations together with the rights and obligations attaching to such membership, will devolve solely upon the Dominion of India. For the purposes of this paragraph any rights or obligations arising under the Final Act of the United Nations Monetary and Financial Conference will be deemed to be rights or obligations attached to membership of the International Monetary Fund and to membership of the International Bank for Reconstruction and Development. (2) The Dominion of Pakistan will take such steps as may be necessary to apply for membership of such international organizatio....
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....th August, 1947. One of the extradition treaties mentioned by the Hon'ble Member was in existence an Extradition Treaty with Chile. 92. Reference may also be made to Document A/CN.4/229 titled "Succession of States in respect of bilateral treaties - study prepared by the Secretariat" of the International Law Commission on the topic of "Succession of States with respect to treaties". This document is extracted from the Yearbook of the International Law Commission 1970, Vol. II. http://www.un.org/law/ilc/index.htm The Document notes: "A considerable number of extradition treaties concluded in the nineteenth and twentieth centuries are applicable, either automatically or by subsequent extension, to dependent territories of the parties which later became independent States. In addition, States parties to extradition treaties have sometimes undergone changes in international status (constitution of unions or federations, secession, annexation, restoration of independence, etc.) which have affected their participation in these treaties." 93. With reference to India, the Document notes in paragraph 22 that most of the extradition treaties concluded by the United Kingdom....
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....Aerial Incident of 10th August, 1999 (Pakistan v. India) decided on 21st June, 2000 ICJ Reports 2000, page 12. 98. The view canvassed by the Government of India was that it had never regarded itself bound by the General Act for the Pacific Settlement of International Disputes signed at Geneva on 26th September, 1928. This was specifically stated by the Minister for External Affairs in a communication addressed to the Secretary General of the United Nations on 18th September, 1974. Alternatively, it was submitted that the General Act had been repudiated by the Government of India. 99. Accepting both the principal submission as well as the alternative submission, the International Court of Justice held in the majority opinion in paragraph 28 of the judgment as follows: "28. Thus India considered that it had never been party to the General Act of 1928 as an independent State; hence it could not have been expected formally to denounce the Act. Even if, arguendo, the General Act was binding on India, the communication of 18 September 1974 is to be considered in the circumstances of the present case as having served the same legal ends as the notification of denunciation p....
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....ghts and obligations of British India under all multilateral treaties binding upon her before her partition into the two successor States. The Prime Minister of Pakistan has further stated that accordingly, the Government of Pakistan did not need to take any steps to communicate its consent de novo to acceding to multilateral conventions by which British India had been bound. However, in order to dispel all doubts in this connection, the Government of Pakistan have stated that they continue to be bound by the accession of British India to the General Act of 1928. The communication further adds that 'the Government of Pakistan does not, however, affirm the reservations made by British India'. 3. In this connection, the Government of India has the following observations to make: (1) The General Act of 1928 for the Pacific Settlement of International Disputes was a political agreement and was an integral part of the League of Nations system. Its efficacy was impaired by the fact that the organs of the League of Nations to which it refers have now disappeared. It is for these reasons that the General Assembly of the United Nations on 28 April 1949 ado....
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....r O'Connell states as follows: 'Clearly not all these treaties are transmissible; no State has yet acknowledged its succession to the General Act for the Pacific Settlement of International Disputes' (1928). (State Succession in Municipal Law and International Law, vol. II, 1967, page 213.) See also Sir Humphrey Waldock's Second Report (Article 3) and Third Report (articles 6 and 7) on State Succession submitted to the International Law Commission in 1969 and 1970, respectively; Succession of States and Governments, Doc. A/CN.4/149-Add.1 and A/CN.4/150 - Memorandums prepared by UN Secretariat on 3 December 1962 and 10 December 1962, respectively; and Oscar Schachter, 'The Development of International Law through Legal Opinions of the United Nations Secretariat', British Yearbook of International Law (1948) pages 91, 106-107. (e) The Government of Pakistan had attempted to establish the jurisdiction of the International Court of Justice in the Trial of Prisoners of War case in May 1973 and in that connection, as an alternative pleading, for the first time cited the provisions of the General Act of 1928 in support of the Court's jurisdiction to deal with t....
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.... India was explicit that it was not a party and was never bound by the General Act of 1928. That should have been the end of the matter. However and additionally, the Government of India brought out that the Supreme Court of Pakistan, in Messrs. Yangtze (London) Ltd. v. Barlas Brothers PLD 1961 SC 573 had taken the view that "The Indian Independence (International Arrangements) Order, 1947 did not and, indeed, could not provide for the devolution of treaty rights and obligations which were not capable of being succeeded to by a part of a country, which is severed from the parent State and established as an independent sovereign Power, according to the practice of States." Verbatim record of the public sitting held on 4th April, 2000 in the International Court of Justice In other words, even the Supreme Court of Pakistan held the view that the Indian Independence (International Arrangements) Order, 1947 did not provide for the devolution of treaty rights and obligations to the Government of Pakistan. She could not, therefore, rely on the General Act of 1928. It was only this view that was put forward by the Government of India. The counter-memorial did not contradict or ab....
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....t exhaustive nor was it intended to be exhaustive, nor were the views of the Expert Committee conclusive. They were subject to the decision of the Partition Council and eventually the Governor-General (reforms). It is for this reason that the Indian Independence (International Arrangements) Order, 1947 issued by the Governor-General (Reforms) did not specify any treaty or treaties but all inclusively referred to the devolution of the rights and obligations under all international agreements, without limitation. 105. Finally, as far as extradition treaties generally are concerned, the provisions of Section 2(d) of the Act have been made applicable to all such treaties entered into prior to Independence. Nothing could be clearer or more explicit on the subject. 106. Assuming the report of the Expert Committee limited the agreement between the two Dominions only to 627 pre-Independence treaties, that could not wipe out the existence of other treaties entered into, prior to Independence, on behalf of India, including the Treaty mentioned in the Gazette of India of 12th November, 1898. It is nobody's case that the Report of the Expert Committee resulted in the termination or r....
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....arly with respect to extradition treaties. What is also of importance is how the Government of India viewed the factual position in relation to an extradition treaty. In the factual position before us, did the Government of India terminate the Treaty or did it recognize its obligations under the Extradition Treaty? In this context, reference must be made to Article XVIII of the Extradition Treaty. This reads as follows: The present Treaty shall come into force ten days after its publication in conformity with the forms prescribed by the laws of the High Contracting Parties. It may be terminated by either of the High Contracting Parties by a notice not exceeding one year, and not less than six months. It shall be ratified, after receiving the approval of the Congress of the Republic of Chile, and the ratifications shall be exchanged at Santiago as soon as possible. There is nothing to indicate that the Government of India resorted to this Article to terminate or repudiate the Extradition Treaty. On the contrary, as mentioned above, the Government of India overtly accepted and acknowledged the Treaty and even made the Extradition Act applicable to Chile. 110. ....
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....03 treaty between the United States and the Republic of Panama, it was held, referring to Terlinden v. Ames 184 U.S. 270 (1902) and Ivancevic v. Artukovic 211 F.2d 565 [United States Court of Appeals, Ninth Circuit] that the conduct of foreign affairs is a political function but the advice that a treaty is still in effect is not conclusive though it is entitled to great weight and importance. It was said as follows: The Assistant Legal Advisor for Treaty Affairs of the State Department has advised the District Court that Article XVI of the 1903 Treaty is still in effect. Because we recognize that the conduct of foreign affairs is a political, not a judicial function, such advice, while not conclusive on this Court, is entitled to great weight and importance. It is the general Rule that the courts will accord great, but not binding, weight to a determination by the Executive Department that a treaty is terminated, at least when private rights are involved. 113. In Terlinden it was held that: "... on the question whether this treaty [the treaty between the United States of America and the Kingdom of Prussia concluded on 16th June, 1852 and ratified on 30th May, 1853] has ....
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....relations: there are sweeping statements to the effect that all questions touching foreign relations are political questions. Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature, but many such questions uniquely demand single-voiced statement of the Government's views. Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action. For example, though a court will not ordinarily inquire whether a treaty has been terminated, since on that question, "governmental action... must be regarded as of controlling importance," if there has been no conclusive "governmental action," then a court can construe a treaty, and may find it provides the answer. Compare....
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....er that the detention and provisional arrest of his client on 22nd September, 2015 Under Section 34-B of the Act soon after the judgment of the High Court was illegal. It was submitted that there was no request from Interpol to detain and arrest the Petitioner and therefore there was no occasion for her arrest particularly since the proceedings against her had been quashed by the High Court the previous day in its judgment dated 21st September, 2015. We are not inclined to accept this submission. 121. It is not at all necessary that the arrest of a foreign national for a crime committed outside India can only be on the basis of a Red Notice. It is true that in Bhavesh Jayanti Lakhani v. State of Maharashtra and Ors. (2009) 9 SCC 551 it was explained that a Red Notice is issued to seek the provisional arrest of a wanted person. It is not a warrant of arrest. It is a request made by the NCB to Interpol Headquarters for the provisional arrest of a person wanted for extradition and against whom a national or international court has issued a warrant of arrest. It is another matter that a Red Notice issued by Interpol acts as a de facto international arrest warrant. However, this is s....
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...."When appealed to, a State should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal." The modern terminology replaces "punishment" with "prosecution" [aut dedere aut judicare] as the alternative to extradition in order to reflect better the possibility that an alleged offender may be found not guilty. Hugo Grotius lived from 1583 to 1645 In other words, if a State is unwilling to extradite a fugitive criminal, it should undertake the responsibility of prosecuting him or her, the theory being that a criminal should not go unpunished. The prosecute-or-extradite regime received the imprimatur of the International Court of Justice in the case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) Judgment of 20th July, 2012; I.C.J. Reports 2012, p. 422 in the context of the Convention against Torture, but "the Court's ruling may also help to elucidate the meaning of the prosecute-or-extradite regime under .... other conventions" which have followed the same formula as the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft Paragraph....
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..... In fact, India did not have any extradition treaty with Portugal and yet it made a request for the extradition of Abu Salem on the basis of reciprocity. It is only around the time that the request was made that the Government of India issued a notified order Under Section 3(1) of the Act directing that the provisions of the Extradition Act, 1962 other than Chapter III shall apply to the Republic of Portugal. 129. We are, therefore, in agreement with the submission of the learned Additional Solicitor General that on the basis of a request made by Chile as contained in the Note Verbale of 22nd September, 2015 the Petitioner could have been validly detained and placed under provisional arrest Under Section 34-B of the Act, on a reciprocal basis, Extradition Treaty or no Extradition Treaty between India and Chile. The further requirement (in terms of Section 34-B of the Act) would however be for Chile to make a formal request for extraditing the Petitioner from India on the basis of credible evidence against her of having committed an extradition offence punishable both in Chile as well as in India. Subsidiary issues 130. It was also submitted by learned Counsel that the Gov....
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....rld at large. The learned Additional Solicitor General was quite upset at the misleading information given on the official website and informed us that he had given a piece of his mind to the concerned officials in the Ministry. Whether amends have been made by the Ministry of External Affairs and whether the advice given by the learned Additional Solicitor General has been taken by the Ministry of External Affairs in the right spirit or not does not concern us. All that we need say is that in this day and age when communication and communication technology are so important, the Ministry of External Affairs has to be far more careful in the information that it disseminates to the world at large. 134. We may also note the relaxed attitude of the Ministry of External Affairs as evidenced by the manner in which the notified order dated 28th April, 2015 was drafted by it. The text of the notified order leaves much to be desired. We have already pointed out three errors in the notified order, none of which should have occurred at all. The errors only show the laid-back manner in which the Ministry of External Affairs conducts its internal affairs. To make matters worse, the corrigend....