“Abu Salem can Face Death Penalty”. Really?

While reading through the newspapers a few days back, I chanced upon several reports (linked below) on how the Indian Supreme Court has allowed Abu Salem to be tried for offences which may be punishable with the death penalty, inspite of a sovereign assurance provided to Portugal by the Indian Government. According to this sovereign assurance, which formed the basis of the extradition, India would not impose the death penalty on Abu Salem. However, these reports suggested that the Court had given the green signal to the Government to renege on this assurance. According to the Times of India,

In a significant ruling, the Supreme Court on Friday said underworld don Abu Salem can be tried for offences inviting death penalty even though the Portugal government had laid a pre-condition that he will not be extradited if he was to be awarded capital punishment.inflatable water slides for sale

Both from the political and legal vantage points, this would be a most remarkable decision. However, given the prevailing judicial attitudes in the United States regarding its war on terrorism, it would not be too surprising a result. Several recent decisions of Courts in the United States have reaffirmed the non-binding nature of international law in domestic legal spheres (and invited some stern criticism), particularly in relation to the war on terror. Thus, it was only natural, that on reading the headlines about this apparently remarkable decision, I eagerly looked forward to examining this radicalism relating to terror from a comparative perspective.

However, on taking a look at the opinion of the Court itself, I was more than a bit disappointed: because fortunately (in law) or unfortunately (for those academically inclined) the Supreme Court in Abu Salem Abdul Qayoom Ansari v. State of Maharashtra, has said nothing of the sort. The assurance provided to Portugal was that Abu Salem would not be sentenced to death or life imprisonment (though he may be tried for offences usually punishable with those sentences). The Court was neither called on to, nor did it cast any doubts on the binding nature of this assurance. What was the real issue then, before the Court? It was rather simple really- can Abu Salem be tried for offences which are not explicitly mentioned in the application for extradition, if they are lesser offences than the ones which have been mentioned? For instance, if a person is extradited for the offence of murder, can he be tried for culpable homicide on a finding that the facts don’t make out an offence of murder? The Court, after a detailed survey of international law and the Indian statutory framework, came to the singularly unremarkable conclusion that the person can be tried for lesser offences.

Thus, the Court held that nothing prohibits Abu Salem’s trial for offences lesser than the ones for which he has been extradited, so long as he is not awarded the death penalty or life imprisonment. In the words of Justice Ganguly, who delivered a concurring opinion, “In the instant case the extradition has been allowed by the requested State on the specific undertaking of the Government of India that the extradited criminal will not be subjected to death penalty or imprisonment beyond 25 years. Therefore, the basic human rights considerations have been taken into account and the guidelines in Soering (supra) have been adhered to. Thus, primacy has been accorded to human right norms in the extradition process”. Thus, far from allowing the Indian Government to renege on its sovereign assurance, the Court allows the trial for lesser offences on the basis of that very assurance.

Now, I understand that the media cannot be expected to understand legal nuances- and minor misunderstandings of what the Court actually said may be pardoned, particularly when they refer to some complex legal issue, or issues of statutory interpretation. What I cannot understand however, is cases of such blatant misreporting- when the judges state in no uncertain terms what their conclusion is. It is even more disappointing that, of the leading newspapers in the country,* all but one (the Hindu) have completely missed the point the Supreme Court was making (the Hindustan Times, it must be admitted, did not impute the radical conclusion to the Supreme Court- but that is only because that report hardly says anything). Only the Hindu report actually seems to have been based on what the judges actually said.

It is interesting that just a couple of days back, Eesvan has also posted on the tendency of the Indian media to ‘tart up’ legal developments. I couldn’t agree with him more. I cannot speak with any authority on the quality of legal news reporting outside India, but here atleast, there is a crying need for newspapers to get their facts (and atleast the basics of the law) right before printing sweeping statements about current legal developments. A layman reading the morning newspaper cannot possibly be expected to refer to the actual decision of the Court every time s/he reads about some ruling of public interest, just to check whether the newspaper got it right. Given the times we live in, (with special emphasis on the much-awaited decision of the Supreme Court on the Ayodhya issue), such instances of misreporting are very likely to cause much more damage than a couple of blog posts flailing the media.

* By that, I mean the online versions of Times of India, DNA, Indian Express, Hindustan Times, and the Hindu. I also checked CNN-IBN.