Holding

There is a binding extradition treaty between India and Chile, the Extradition Act, 1962 (excluding Chapter III) applies to Chile, and the provisional arrest of the petitioner under Section 34‑B was lawful.

Summary

Marie‑Emmanuelle Verhoeven, a French national, was arrested in India on a provisional basis under Section 34‑B of the Extradition Act, 1962 following a request from the Chilean Embassy for her extradition in connection with the 1991 assassination of a Chilean senator. The petitioner challenged the legality of her arrest, the existence of a binding extradition treaty between India and Chile, and the applicability of the Act to Chile, arguing that such matters are political questions beyond judicial review. The Supreme Court examined the historical continuity of the 1897‑1898 treaty, the effect of the Indian Independence (International Arrangements) Order, 1947, and the notified order of 28 April 2015 (corrected on 11 August 2015) that made the Act applicable to Chile. It held that the treaty remains in force, the Act applies to Chile, and the provisional arrest was lawful, emphasizing that while the decision to apply the Act is political, the existence of a treaty is a factual question that can be determined by the Court. Consequently, the petition and the related appeal were dismissed, leaving the extradition proceedings to be decided by the magistrate on their merits.

Issues considered

The existence and binding nature of an extradition treaty between India and Chile dating from 1897‑1898.
Whether the Extradition Act, 1962 can be made applicable to a foreign State and whether that applicability is a political question beyond judicial review.
The legality of the provisional arrest of the petitioner under Section 34‑B of the Act in the absence of a formal extradition request.
The effect of the Indian Independence (International Arrangements) Order, 1947 and subsequent statutory provisions on pre‑Independence treaties.

Legislation cited

Extradition Act, 1870
Extradition Act, 1962s. 2(d), s. 2(e), s. 3(1), s. 3(3), s. 34-B
Indian Extradition Act, 1903
Indian Independence (International Arrangements) Order, 1947

Subjects

extraditiontreatypolitical questionjudicial reviewprovisional arrestreciprocityinternational lawArticle 32foreign state requestIndian Independence Order

Judgment

[2016] 3 S.C.R. 48

A VERHOEVEN, MARIE-EMMANUELLE
v.
UNION OF INDIA & ORS.
(Writ Petition (Criminal) No. 178of2015)
B APRIL 28, 2016
[MADAN B. LOKUR AND N.V. RAMANA, JJ.]
Extradition Act, I 962:
Applicability of the Act to a foreign State - Scope of judicial
c review - Held: Whether the Extradition Act is to be made applicable
to a foreign State or not is entirely a political decision to be taken
by the Government of India and there must be judicial abstinence
in this regard - There is no doubt that this is an area that cannot be
the subject matter of judicial review - Extradition Act, I 870.
D s.2(d) - Binding extradition beti1•een India and Chile - Extra-
dition Treaty entered into on 26'" January I 897 between United
Kingdom of Great Britain and Ireland with the Republic of Chile is
still in force and binding on India and Chile - The provisions of the
Act (other than Chapter JJI thereof) are applicable to the Republic
of Chile in respect of the offences specified in the Extradition Treaty.
E
s.2(e) - Request made by Embassy of a foreign State - Held: It
is as good as a request made by foreign State itself.
s.34-B -Applicability of- Petitioner, a french national accused
of conspiracy in the assassination of Chilean Senator - Requisition
F made by Embassy of Chile through the Note Verbale of 22'"1
September, 20I 5 for the arrest of the petitioner - That Note Verbale
was acted upon by the Government of India and an application
was moved before the Additional Chief Metropolitan Magistrate,
Patiala House Courts, New Delhi who granted the prayer for the
provisional arrest of the petitioner - Legality - Held: There was no
G illegality or irregularity in the procedure adopted for the provisional
arrest of the petitioner - On the basis of a request made by Chile as
contained in the Note Verba le of 22'"1 September, 20 I 5, the petitioner
could have been validly detained and placed under provisional arrest
u/s.34-B of the Act, on a reciprocal basis, Extradition Treaty or no
H
48
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 49

.Extradition Treaty beh1'een India and Chile - The fi1rther requirement A
(in terms of s.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.
Extradition law: 8
General principles of International lm1', do not bar requisition
invoking principle of reciprocity.
Historical background of Extradition law in India, discussed.
Red notice - Meaning of. discussed. c
Doctrines/Principles: Doctrine of reciprocity - For invoking
principle of reciprocity, there need not even be extradition treaty
between India and the foreign State.
Words and phrases: British possession. Governor - Meaning
in terms of Extradition Act, 1870. D
Dismissing the Writ petition and appeal, the Court
HELD: 1. There is more than sufficient material to conclude
that from 1897-1898 onwards, the Government of British India
and the Government of India considered itself bound by the
E
Extradition Treaty entered into with the Republic of Chile on
26'h January, 1897 and the Government of India has always been
ofthe view that the Extradition Treaty is in force in India. [Para
95] (84-E-F)
2.1. 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 F
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 tie facto
international arrest warrant. However, this is subject to the G
condition that a request for extradition, along with necessary
evidence, would be produced by the requesting State without
delay. But the absence of a Red Notice does not preclude the
Government of India from arresting a fugitive criminal and
producing him or her before a Magistrate in accordance with law.
H
50 SUPREME COURT REPORTS [2016] 3 S.C.R.

A .Thereafter, the provisions of Section 34-B of the Act can be
brought into play, provided there is an urgent request from a
foreign State for the provisional arrest of a fugitive criminal. This
is precisely what transpired in the present case when the Embassy
of Chile made an urgent request through the Note Verbale of 22" 0
September, 2015 for the arrest of the petitioner. That Note Verbale
B
was acted upon by the Government of India and an application
moved before the Additional Chief Metropolitan Magistrate,
Patiala House Courts, New Delhi who granted the prayer for the
provisional arrest of the petitioner. No illegality or irregularity
can be found in the procedure adopted for the provisional arrest
c of the petitioner. [Paras 121 and 122] [97-C-F]
Bhavesh .Jayanti Lakhani v. State of Maharashtra &
Ors. (2009) 9 SCC 551: 2009 (12) SCR 861 - relied
on.
2.2. Section 2(e) of the Act defines a foreign State to mean
D any State outside India and it includes every constituent part,
colony or dependency of such State. A request made by the
Embassy of a foreign State is as good as a request made by the
foreign State itself. If this is not accepted, it will lead to an absurd
situation where the Head of State or the Head of the Government
of a foreign State would be required to make a request for
E extradition. This is simply not an acceptable proposition.
Therefore, submission that the petitioner's arrest under Section
34-B of the Act could be made only on a request from a foreign
State (as mentioned in the Section) and not by a representative
of a foreign State or even the Embassy of a foreign State is
F rejected.[Para 123] [97-G-H; 98-A-B]

3. 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. It is
on the basis of reciprocity that the Republic of Chile first sought
G the extradition of the petitioner as mentioned in the Note Verbale
of 24'h February, 2015. The same principle of reciprocity was
resorted to by the Government of India when it sought the
extradition of Abu Salem from Portugal, although the request made
by the Government of India to Portugal sought his extradition
H also by relying on the International Convention for the
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 51
[MADAN B. LOKUR, J.]

Suppression of Terrorist Bombings. For invoking the principle A
of reciprocity, there need not even be an extradition treaty
between India and the foreign State as is apparent from a reading
of the decision of this Court in Abu Salem. 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
B
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.
On the basis of a request made by Chile as contained in the Note
Verbale of 22•rt September, 2015 the petitioner could have been c
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
D
her of having committed an extradition offence punishable both
in Chile as well as in India. [Paras 124, 127, 128, 129) [98-E; 99-
E-H; 100-A-C]
Rosiline George v. Union of India & Ors. (1994) 2 SCC
80: 1993 (3) Suppl. SCR 141; Abu Salem Abdul Qayoom E
Ansari v. State of Maharashtra (2011) 11 SCC 214:
2010 (13) SCR 8 - referred to ..
4. A notified order under section 3(1) has been issued in
respect of the Republic of Chile and the natural presumption is
that this official act has been done after due application of mind. F
In any event, whether the Extradition Act is to be made applicable
to a foreign State or not is entirely a political decision to be taken
by the Government of India and there must be judicial abstinence
in this regard. There is no doubt that this is an area that cannot
be the subject matter of judicial review. [Para 130) [100-D-E] G
5. The extradition proceedings pertaining to the petitioner
are pending before the Additional Chief Metropolitan Magistrate,
Patiala House Courts, New Delhi. The Magistrate should decide
on the extradition of the petitioner on the merits of the case and
the evidence before him. [Para 137) [ 102-D-E] H
52 SUPREME COURT REPORTS [2016] 3 S.C.R.

A Messrs. Yangtze (London) Ltd. v. Barias Brothers PLD
1961 SC 573; Babu Ram Saksena v. State 1950 SCR
573; Sayne v. Shipley 418 F.2d 679; Terlinden v. Ames
184 U.S. 270; Ivancevic v. Artukovic 211 F. 2d 565;
Jhirad v. Ferrandina 355 F. Supp. 1155; Baker v. Carr
369 U.S. 186; Tom C. Clark v. Alvina Allen 331 U.S.
B
503, 518 - referred to.
Halsbury~· Lmt'S of England Volume 18(2) 41h Edition -
referred to.

Case Law Reference
c
1993 (3) Suppl. SCR 141 referred to Para 108
1950 SCR 573 referred to Para 108
2010 (13) SCR 8 referred to Para 117
D 2009 (12) SCR 861 relied on Para 120
CIVIL ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 178
of2015.
[Under Article 32 ofThe Constitution oflndia]

E WITH
CRL. A. No. 417 of 2016.
C. A. Sundaram, Chander Uday Singh, Sr. Advs., Ms. Ramni Taneja,
Ms. Rohini Musa, Abhishek Gupta, Zafar lnayat, Anil Shrivastav, Rishi
Singh Gautam, Dhaval Mehrotra, Ms. Savita Singh, Advs. for the
F Petitioner.
P. S. Patwal ia, ASG, Ms. V. Mohana, Sr. Adv., Arij it Prasad, Dhruv
Sheoran, Archit Upadhayay, B. Krishna Prasad, B. V. Balaram Das,
Ms. Natasha Vinayak, Rajat Singh, Advs. for the Respondents.
The Judgment of the Court was delivered by
G
MADAN B. LOKUR, J. I. The writ petition is admitted and in
the connected matter, special leave is granted.
2. The principal question for consideration is whether there is a
binding extradition treaty in terms of Section 2(d) of the Extradition Act,
1962 between India and Chile. Our answer to this question is in the
H
VERHOEVEN, MAR!E-EMMANUELLE v. UNION OF INDIA 53
[MADAN B. LOKUR, J.]

affirmative. A
3. The subsidiary question, equally iviportant, is assuming there is
no binding extradition treaty between India and Chile, whether a
requisition by Chile invoking the principle ofreciprocity and the general
principles of international law for extraditing the petitioner from India is
maintainable. In our opinion, the general principles of international law B
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 c
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 1" 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 thatthe extradition proceedings initiated D
against her were not in accordance with law. The present proceedings
have arisen out of yet another requisiti~n made by the Republic of Chile
for her extradition to Chile to face trial in the assassination of the Chilean
Senator.
5. The extradition ofa fugitive criminal is a serious matter since it E
involves the liberty of a person and therefore learned counsel for the
petitioner placed a large amount of material before us, which he was
entitled to do since the matter involved the liberty of his client. The case
before us was, therefore, argued for several days and we were taken
through the history of extradition laws in India, the procedure in Chile F
and some general principles of international law were also placed before
us.
6. At one stage, it was submitted on behalf of the Government of
India that a French national could not challenge the existence of an
extradition treaty between India and Chile but in view of Article 21 of G
our Constitution which beriefits all persons in India, including non-citizens,
we did not accept this argument and proceeded to hear the case on the
entirety of the material before us. All that we need say in this context is
that Article 21 of the Constitution is entitled to the respect and expansive
interpretation that it deserves, and more. It is in view of this that we
have considered the 111atter before us. H
54 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 7. To answer the questions before us, it is necessary to go all the
way back to the Extradition Act, 1870 ('the 1870 Act') when India was
a colony and a 'possession' of the British Empire.
The Extradition Act, 1870
8. In terms of Section 2 of the 1870 Act, by an Order in Council,
B Her Majesty could direct the application of the 1870 Act in the case of a
foreign State with which an arrangement had been made with respect to
the surrender to such State ofany fugitive criminal. The Order in Council
was required to recite or embody the terms of arrangement; it was also
required to be laid before both Houses of Parliament within a specified
c period, and it was required to be published in the London Gazette.
Section 2 of the Extradition Act, 1870 reads as follows:
"2. Where arrangement for surrender of criminals made,
Order in Council to apply Act.--Where an arrangement has
been made with any foreign state with respect to the surrender to
D such state of any fugitive criminals, Her Majesty may, by Order
in Council, direct that this Act shall apply in the case of such
foreign state."
9. Section 17 of the 1870 Act provided for the application of that
Act, unless otherwise provided by an Order in Council, to extend to
E every British possession in the same manner as ifthe 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.-ThisAct when applied by Order in Council, shall,
F 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 1870Act dealt with the interpretation of certain
G 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 ofa British possession
and included a governor of any part of India.
11. Clearly therefore, the 1870 Act applied to that part of India as
H was a colony within Her Majesty's dominion or was a possession in Her
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 55
[MADAN B. LOKUR, J.]

Majesty's dominions. The terms 'British possession' and 'governor' as A
mentioned in Section 26 of the 1870 Act read as follows:-
26. Interpretation.-The term "British possession" means any
colony, plantation, island, territory, or settlement within Her
Majesty's dominions. and not within the United Kingdom, the
Channel ls lands, and Isle of Man; and all colonies, plantations, B
islands, territories, and settlements under one legislature, as
hereinafter defined, are deemed to be one British possession."
The term "governor" means any person or persons administering
the government of a British possession, and includes the governor
of any part of India." c
12. Section 18 of the 1870 Act provided for the saving of laws of
British possessions. In other words, the provisions of the Extradition
Act, 1870 could be applied by Her Majesty, by Order in Council, to any
law enacted before or after the 1870 Act by a British possession to any
foreign State, inter alia, by directing that such law shall have effect in D
such British possession, with or without modifications and alterations, as
if it were a part of the 1870 Act. Section 18 of the Extradition Act, 1870
reads as follows:-
"18. Saving of laws of British possessions.- If by any law
or ordinance made before or after the passing of this Act by the E
Legislature of any British possession, provision is made for carrying
into effect within such possession the surrender offugitive criminals
who are in or suspected of being in such British possession, Her
Majesty may, by the Order in Council applying this Act in the
case of any foreign state, or by any subsequent order, either
F
Suspend the operation within any such British possession of this
Act, or any part thereof, so far as it relates to such foreign state,
and so long as such law or ordinance continues in force there, and
no longer;
or direct that such law or ordinance, or any part thereof, shall
G
have effect in such British possession, with or without
modifications or alterations, as ifit were part of this Act."
The Extradition Treaty
13. On 261h January, 1897 the United Kingdom of Great Britain and
Ireland and the Republic of Chile entered into a Treaty for the Mutual H
56 SUPREME COURT REPORTS [2016] 3 S.C.R.

A Surrender of Fugitive Criminals (for short 'the Extradition Treaty' or
'the Treaty'). In terms of Article I of the Treaty, the High Contracting
Parties engaged to deliver up 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.
B
Article II of the Treaty provided forthe 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
c 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.
D 15. The Treaty having been signed, an Order in Counci 1was made
on 9 h August, 1898 and this was published in the London Gazette on I21h
1

August, 1898. Both the Order in Council and the London Gazette
embodied the text of the Treaty between the United Kingdom of Great
Britain and Ireland and the Republic of Chile.
E 16. The Extradition Treaty was subject to ratification and on 141h
April, 1898 Her Majesty and the President of the Republic of Chile
ratified the Treaty which was brought in force from and after 22"d August,
1898.
17. Soon thereafter, the Gazette of India of I21h November, 1898
F reproduced the Order in Council published in the London Gazette of 12'"
August, 1898 pertaining to the Extradition Treaty between the United·
Kingdom of Great Britain and Ireland and the Republic of Chile. The
Extradition Treaty with the Republic of Chile was, therefore, independently
applicable to India as well. Incidentally, none of the affidavits filed by
G the Union oflndia, either in the Delhi High Court or in this Court, refer
to or mention this gazette notification. The notification was handed over
to us in Court by the learned Additional Solicitor General during the
course of his submissions. This shows the seriousness with which the
Government of India conducted the litigation in the Delhi High Court
and initially in this Court and the level of its preparedness.
H
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 57
[MADAN B. LOKUR, J.]

The Indian Extradition Act, 1903 A
18. The Indian Extradition Act, 1903 (the 1903 Act) was brought
into force on I" June, 1904 in terms of Section 1(3) thereof. Section
2( c )_ of the 1903 Act provided that a 'Foreign State' meant a State to
which, for the time being, the Extradition Act, 1870 applied.
19. Section 3 of the 1903 Act provided for a requisition being made B
by the government of any Foreign State for the surrender of a fugitive
criminal of that State, who is in or who is suspected of being in the
Provinces of India (later comprising of Part A States and Part C States
of India). The surrender was subject to an enquiry in this regard by a
Magistrate havingjurisdiction to enquire into the crime as ifit had been c
anoffence committed within the local limits of his jurisdiction.
20. The relevant provisions of Section 3 of the Indian Extradition
Act, 1903 read as follows:-
"3(1) Where a requisition is made to the Central Government
by the Government of any Foreign State for the surrender of a D
fugitive criminal of that State, who is in or who is suspected of
being in the States, the Central Government may, if it thinks fit,
issue an order to any Magistrate who would have had jurisdiction
to inquire into the crime if it had been an offence committed
within the local limits ofhisjurisdiction; directing him to inquire E
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.
F
(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
G
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 71h March, 1904 an Order in Council was made declaring
H
58 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 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 JI of the Indian Extradition Act,
1903 which dealt with the surrender of a fugitive criminal in the case of
a Foreign State was made applicable to British India. This position
continued till Independence.
B
Indian Independence (International Arrangements) Order, 1947
22. Around the time of Independence, the Indian Independence
(International Arrangements) Order, 1947 (for short 'the Order') was
notified by the Secretariat of the Governor-General (Reforms) on 141h
c August, 1947 in exercise of powers conferred by Section 9 of the Indian
Independence Act, 194 7. The Order has the effect of an agreement
duly made between the Dominion oflndia and the Dominion of Pakistan
and came into effect from l S1h August, 194 7 . 1 The Order provides, inter
alia, that the rights and obligations under all international agreements to
which India is a party immediately before the appointed day will devolve
D upon both the Dominion oflndia and the Dominion of Pakistan and will,
if necessary, be apportioned between the two Dominions. The effect of
this is that the Extradition Treaty entered into by the United Kingdom of
Great Britain and Ireland and the Republic of Chile continued in force as
far as India is concerned.
E The Extradition Act, 1962
23. To avoid any misgivings and apprehensions about the status of
the extradition treaties entered into between British India and foreign
States (including Commonwealth countries) the Extradition Act, 1962
(for short 'the Act') was enacted by our Parliament. It was brought into
F force on S1h January, 1963.
24. Section 2(d) of the Act defines an extradition treaty as including
a treaty for the extradition of fugitive criminals made before 15'" August,
1947 which extends to and is binding on India. The definition is important
and is in the following terms:-
G
"2( d) "extradition treaty" means a treaty, agreement or
arrangement made by India with a foreign State relating to the
extradition of fugitive criminals, and includes any treaty, agreement

1 The agreement was reached on 6'" August. 1947 but the notification was issued on 14'"

H August. 1947.
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 59
[MADAN B. LOKUR, J.]

or arrangement relating to the extradition of fugitive criminals made A
before the 15 1h day of August, 1947, which extends to, and is
binding on, India."
25. Section 3 of the Act is also of some importance and it provides
for the issuance of a notified order by the Central Government applying
the provisions of the Act, other than Chapter III, to such foreign State or ·a
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. (I) The Central Government may, by c
notified order, direct that the provisions of this Act, other than
Chapter III, shal I 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 (I) or any subsequent notified order, D
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,-
E
(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 th is Act subject to such
modifications, exceptions, conditions and qualifications as may be F
deemed expedient for implementing the treaty with that State.
(4) Where there is no extradition treaty made by India with any
foreign State, the Central Government may, by notified order, treat
any Convention to which India and a Foreign State are parties, as
an extradition treaty made by India with that foreign State providing G
for extradition in respect of the offences specified in that
Convention."
26. Another important provision in the Act is Section 34-B relating
to a provisional arrest. This Section provides that on receipt of an urgent
request from a foreign State for the immediate arrest of a fugitive criminal H
60 SUPREME COURT REPORTS [2016] 3 S.C.R.

A the Central Government may request the jurisdictional Magistrate to
issue a provisional warrant forthe arrest of the fugitive criminal. Section
34-B of the Act reads as follows:-
"34-B. Provisional arrest. ( 1) On receipt of an urgent request
from a foreign State for the immediate arrest of a fugitive criminal,
B the Central Government may request the Magistrate having
competent jurisdiction to issue a provisional warrant forthe arrest
of such fugitive criminal.
(2) A fugitive criminal arrested under sub-section (I) shall be
discharged upon the expiration of sixty days from the date of his
c arrest if no request for his surrender or return is received within
the said period."
27. On or about l 61h March, 1956 (well before the Extradition Act,
1962) came into force, an unstarred question No. 439 was raised in
Parliament by Shrimati Ha Palchoudhury requiring the Prime Minister to
D state the countries with which India has an extradition treaty. In response
to the unstarred question, Prime Minister Shri Jawaharlal Nehru (who
was also the Minister for External Affairs) laid on the table of the House
a list of extradition treaties with foreign countries concluded by the British
Government on behalf of India before Independence and which were
still in force. One of the foreign countries with which an extradition
E treaty had been entered into on behalf of India and still in force was the
treaty with Chile executed on 261h January, 1897.
28. When the Extradition Bill was introduced in 1961 and considered
in Parliament, Shri D.C. Sharma (an Hon'ble Member of Parliament)
referred to Clause 2( d) of the Extradition Bill and stated on 71h August,
F 1962 that he had a list of countries with which India has an extradition
treaty entered into prior to 1S1h August, 194 7. One of the countries so
mentioned by Shri D.C. Shanna was Chile.
29. These details have been mentioned forthe purposes ofrecording
the submission of the learned Additional Solicitor General that the
G 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
H post S1h January, 1963 the provisions of the Act would not be applicable
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 61
[MADAN B. LOKUR, J.]

to the Extradition Treaty without an appropriate notified order issued in A
accordance with Section 3(1) [read with Section 3(3)] of the Act.
Apparently realizing this, the Government of India notified an Order
dated 28 1h April, 2015 (gazetted on 291h April, 2015) under Section 3( 1)
read with Section 3(3) of the Act making the Act applicable to the
Republic of Chile.
B
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 and Ireland, and the Republic of
Chile was concluded and signed at Santiago on the January 26, c
1897 and the Ratification exchanged at Santiago on the April 14,
1898, are considered to be in force between the Republic oflndia
and the Republic of Chile;
And whereas the Central Government in exercise of the powers
conferred by sub-Section (1) of Section 3 of the Extradition Act, D
1962 (34 of 1962) had directed by an order number G.S.R. 56
dated S1h January, 1963 that the provisions of the said Act, other
than Chapter III shall apply to the Republic of Chile;
Now, therefore, in exercise of the power conferred by sub-section
(3) of the Extradition Act, 1962 (34 of 1962), the Central E
Government hereby sets out the aforesaid Treaty as under:-
Her Majesty the Queen of the United Kingdom of Great Britain
and Ireland, and his Excellency the President of the Republic of
Chile, having determined, by common consent, to conclude a Treaty
for the extradition of criminals, have accordingly named as their
F
Plenipotentiaries:-
Her Majesty the Queen of the United Kingdom of Great Britain
and Ireland John G. Kennedy, Esq., Minister Resident of Great
Britain in Chile; and
His Excellency the President of the Republic of Chile, Senor Don G
Carlos Morla Vicuna, Minister of Foreign Affairs;
Who, after having exhibited to each other their respective full
powers, and found them in good and due form, have agreed upon
the following Articles:-
H
62 SUPREME COURT REPORTS [2016] 3 S.C.R.

A (The Articles of the extradition treaty are reproduced in the notified
order, but not reproduced here)
Now therefore, in the exercise of the power conferred by sub-
section ( 1) ofSection 4 of the Indian Extradition Act, 1962 (34 of
1962), the Central Government hereby direct that the provision of
B the said Act, other than Chapter Ill, shall apply to the Republic of
Chile with effect from the date of publication of this notification,
in respect of the offences specified in the above Treaty."
32. The first error in the notified order is the reference to GSR 56
dated 51h January, 1963 to the effect that the provisions of the Act other
c than Chapter Ill shall apply to the Republic of Chile. GSR 56 is totally
(and admittedly) irrelevant to the context and has absolutely no concern
with the Republic of Chile. The second error is that the notified order is
purported to have been issued in exercise 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
D 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 28 1" April, 2015 was
challenged by the petitioner by filing W.P. (Crl.) No. 1215of2015 in the
Delhi High Court and a prayer was also made for quashing a requisition
E 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
28 1hApril, 2015 issued a corrigendum on 11th August, 2015 (published in
F the Gazette of India) in which reference to GSR 56 dated 51" 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 1'nade with regard to
the so-called Indian Extradition Act, 1962. The casualness with which
G the corrigendum has been issued by the Government of India is quite
apparent.
The corrigendum dated l l 1h August, 2015 reads as fol lows:-
"GSR 628(E)- In the order of the Ministry of External Affairs,
dated the 281h April, 2015 published in the Gazette of India,
H Extraordinary, Part II, Section 3, Sub-Section (i) vide G.S.R.
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 63
[MADAN B. LOKUR, J.]

328(E), dated the 29 1hApril, 2015, - A
In the said order, -
(i) In the second paragraph, for "had directed by an Order num-
ber G.S.R. 56, dated January 5, 1963" read "directs";
(ii) In the last paragraph, for "sub-section (I) of section 4", read
B
"sub-section (I) of section 3".
35. ln view of the corrigendum dated J Jth August, 2015 it must be
held that the notified order dated 28th April, 2015 was partially defective
and therefore the application of the Extradition Act, 1962 to Chile would
be effective only from 11th August, 2015 when the corrections were c
carried out and not 281hApril, 2015. However, this makes no difference
to the ultimate result of this case.
The factual background
36. On I st April, 1991 (the first Red Notice issued by Interpol
erroneously shows the year as 1992) a terrorist attack was perpetrated D
leading to the assassination of Senator Jaime Guzman Errazuriz of Chile.
Initial investigations apparently did not point to the involvement of the
petitioner Marie Emmanuelle Verhoeven (believed to be a French
national). However, when further facts came to light in 20 I 0, it appeared
that the petitioner was a member of a subversive organization responsible E
for the assassination. Accordingly, a warrant for the arrest of the petitioner
was issued on 21st September, 2010 by the Court of Appeal of Santiago
in Chile. On the basis of this arrest warrant and a request made by
National Central Bureau (or NCB) at Santiago, Chile (and presumably
on the basis of other available information) a "Red Notice" was issued
by Interpol on 27th January, 2014 for the location and arrest of the F
petitioner for an incident that occurred on I st April, 1992 (actually 1991)
with a view to extradite her to Chile and also for her provisional arrest.
The Red Notice mentioned that NCB Santiago, Chile and the Interpol
General Secretariat be immediately informed on the fugitive being found.
37. A few days later on 29 1hJanuary, 2014 the petitioner was indicted G
for the offence above-mentioned.
38. lt appears that pursuant 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 H
64 SUPREME COURT REPORTS [2016] 3 S.C.R.

A Germany and this is being mentioned only for completing the factual
background.
39. Much later, on l 71h 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
B 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 21" February, 2015
and remanded to judicial custody till 24 1hFebruary, 2015
40. Thereafter, on 241h February, 2015 the petitioner was produced
c 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 20 I 5 in the Delhi High Court and also a subsequent order
continuing her judicial custody as a result of the Red Notice issued by
D Interpol. In the writ petition, the petitioner sought her immediate release
from Tihar Jail, Delhi.
41. In the meanwhile and apparently on information received
regarding the arrest of the petitioner, the Embassy of Chile gave a Note
Verbale on 24'h February, 2015 to the Ministry of External Affairs,
E Government of India. The Note Verbale is of some importance and it
reads as follows:- ·
"The Embassy of the Republic of Chile presents its compliments
to the Ministry of External Affairs of the Republic of India -
CPV (Consular Passport, Visa) Division - and has the honor to
F request the extension of the detention period of the French citizen
MARIE EMMANUELLE VERHOEVEN on the basis of the
request for preventive detention enclosed with this Note, issued
by the Supreme Court of Chile.
The request for preventive detention to secure the extradition to
G besought was issued in matter No. 3.118-2015 tried by the Supreme
Court of Justice, at the request of the Special Investigating Judge
of the Santiago Court of Appeals Hon. Mario Carroza Espinosa.
As regards Ms. Verhoeven, described in the documents enclosed,
a warrant of arrest was issued against her on January 27, 20 I 4.
H She was indicted on January 29, 2014 as perpetrator of a terrorist
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 65
[MADAN B. LOKUR, J.]

attack leading to the assassination of Senator Mr. Jaime Guzman A
Errazuriz on Apri I I, 1991.
The extension of Ms. Verhoeven 's detention period is grounded
on the need of taking into consideration Chilean internal procedures
to subsequently request the Government of the Republic of India
to extradite the accused. Indeed, the Chilean Supreme Comi of B
Justice, upon making a decision as regards the request for
extradition filed by the Court having charged Ms. Verhoeven with
such crime, shall cause that a case file is opened, which will include
the pieces of evidence supporting the request for extradition.
Said request shall be remitted to the Chilean Ministry of Foreign c
Affairs for translation into the English language before it is fonnally
submitted to the Indian Ministry of Foreign Affairs.
Additionally, to prevent the person whose extradition will be sought
from fleeing from justice, the Court of jurisdiction over the case
has asked the Supreme Court to issue a preventive detention D
warrant. 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. E

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 F
disposal of the competent authorities of the Republic oflndia 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 oflndia that the State organs will ensure reciprocity G
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 to timely request the extradition of
Ms. Marie Emmanuelle Verhoeven. H
66 SUPREME COURT REPORTS [2016] 3 S.C.R.

A The Embassy of the Republic of Chile avails itself of this opportunity
to renew to the Ministry of External Affairs of the Republic of
India- CPV (Consular Passport, Visa) Division - the assurances
of its highest and most distinguished consideration."
42. The Note Verbale mentions the date of offence as I" April,
B 1991 (which seems to be the correct date) while the Red Notice mentions
the date of incident as I ' 1 April, 1992. The discrepancy between the two
dates can become important (in a given case) since the question of the
liberty of an individual is involved. However, for the present purposes,
that is overlooked and ignored since it does not have any material impact
on the final decision in these cases.
c
43. The second important fact that is explicit from a reading of the
Note Verbale is that the Embassy of Chile acknowledged that there is
no extradition treaty between India and Chile and that the request for
extradition is made only by way of a reciprocal understanding in case a
similar request is made by the competent authorities ofindia.
D
44. The process of extradition of the petitioner from India to Chile
was also the subject matter of consideration in the Republic of Chile.
Section 637 of the Criminal Procedure Code in Chile provides for the
extradition of a fugitive criminal. In terms of this Section, upon receipt
by the Supreme Court of Chile of a request concerning the extradition,
E the same sh al I be remanded to the Court Attorney who wi 11 then report
whether the extradition is lawfully proper in accordance with the Treaty
signed by the nation in which the convict is found or otherwise in the
absence of a treaty, with the international law principles.
45. In terms of Section 638 of the Criminal Procedure Code in
F Chile, upon the report of the Supreme Court's Prosecutor, the Supreme
Court shall render a decision whether the extradition is lawful or not.
46. In terms of 639 of the Criminal Procedure Code in Chile, the
Supreme Court shall send to the Ministry ofForeign Affairs a copy of its
decision and ask that relevant diplomatic steps be taken (if necessary)
G to obtain the extradition of the offender.
47. Sections 637, 638 and 639 of the Criminal Procedure Code in
Chile read as follows:-
"Section 637 (685)- Upon receipt by the Supreme Court of the
docket, it shall remand the same to the court attorney, who shall
H
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 67
[MADAN B. LOKUR, J.] .

decide whether the extradition is lawfully proper in accordance A
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 B
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 C
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. o
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 9'h March, 2015 in respect of the
extradition of the petitioner in the matter of the assassination of Senator E
Jaime Guzman Errazuriz perpetrated on 1st April, 1991. It was held by
the Hon 'ble Judges of the Supreme Court that there is no extradition
treaty between Chile and India and therefore for making a request for
the extradition of the petitioner, the general international law principles
must be applied as prescribed in Section 637 of the Criminal Procedure F
Code. Thereafter, the general international law principles were broadly
mentioned by the Supreme Co mt as having been clearly enshrined in the
Havana Convention on 20'h February, 1928 and the Montevideo
Convention on Extradition ratified by Chile on 2"d July, 1935 as well as
bilateral treaties on the matter with several countries and opinions by
domestic and foreign doctrine. India is not a signatory to the Havana G
Convention or the Montevideo Convention.
49. The majority opinion written by four Hon'ble Judges of the
Supreme Court of Justice of Chile specifically held:
"Between Chile and India there is no treaty on extradition; therefore,
H
68 SUPREME COURT REPORTS [2016] 3 S.C.R.

A to make a decision on the request, the general international law
principles must apply, as prescribed in section 637 of the Criminal
Procedure Code."
50. The dissenting Judge did not specifically disagree with this
conclusion of the majority that there is no extradition treaty between
B Chile and India. It must, therefore, be held that the unanimous conclusion
of the Supreme Court of Justice of Chile is that there is no extradition
treaty between the Republic of Chile and the Republic of India.
51. Be that as it may, on the basis on the above conclusions, it was
held that it was lawfully proper to request the Government of India to
c extradite the petitioner for her alleged liability as a principal offender in
the terrorist attack perpetrated in Santiago on I" Apri I, 1991. The
operative portion of the decision of the Supreme Court of Chile reads as
follows:-
" In view also of the provisions in Sections 635, 636, 637, 638 and
D 639 of the Criminal Procedure Code, it is hereby stated that it is
lawfully proper to request the Government of India to extradite
Marie Emmanuelle Verhoeven for her alleged liability as Principal
Offender in the terrorist attack against a political authority, leading
to the assassination of Senator Jaime Guzman Errazuriz,
perpetrated in Santiago on April I, 1991, as stated in clause I of
E 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
F
Note Verbale was given by the Embassy of Chile to the Ministry of
External Affairs on 24•h 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
G treaty between the Republic of Chile and the United Kingdom of Great
Britain and Ireland signed at Santiago on 26'h 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 9'h M~rch, 2015, and the arrest warrant
issued against the petitioner on 27'h January, 2014 and her ind ictmcnt on
H
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 69
[MADAN B. LOKUR, J.]

29'h January, 2014 as a principal offender in the terrorist attack carried A
out on l" April, 199 l that resulted in the assassination of Senator Jaime
Guzman Errazuriz. The Note Verbale dated 24'h March, 2015 reads as
follows:-
"The Embassy of the Republic of Chile presents its compliments
to the Honourable Ministry of External Affairs of the Republic of B
India, and has the honour to request, upon requisition of the
Honourable Supreme Court of Chile, the extradition of the French
national MARIE EMMANUELLE VERHOEVEN, Chilean
Identity Card for Aliens No.12.046.818-9, born on October 8, 1959,
on the basis of the principles of international law derived from the
multilateral conventions and bilateral treaties on extradition, among
c
which is included the Extradition Treaty between the Republic of
Chile and the United Kingdom of Great Britain and Ireland, signed
at Santiago on January 26, 1897, in force for both countries, and
complementarily on the basis of the provisions contained in the
said Treaty on such matters as applicable between Chile and India. D
This request is made pursuant to the resolution of the Honourable
Supreme Court of Justice of Chile, Case No.3118-2015, in its
decision of March 9 of the current year, by order of the Special
Investigating Judge of the Santiago Court of Appeals, Hon. Mario
Carroza Espinosa, in Case No.39.800-1991 of the former 6'1' E
Criminal Court of Santiago, due to infringement of Act No.18.314
on terrorist acts and assassination of Chilean Senator Jaime
Guzman Errazuriz.
This Note - accompanying the formal request for extradition - is
submitted in accordance with the applicable regulations contained F
in the Chilean laws. Pursuant thereto, the Ministry of Foreign
Affairs is primarily responsible for carrying out the diplomatic
formalities involved in an extradition request granted by Chilean
courts of justice, while the latter are the only organs responsible
for the judicial aspects of such requests.
G
Ms. Verhoeven is subject to an arrest warrant dated January 27,
2014 and a bill of indictment dated the 29'h day of the same month
and year, as principal offender in the terrorist attack carried out
on April 1, 1991 that resulted in the assassination of Senator Jaime
Guzman Errazuriz, and is based on the attached documents,
particularly on those mentioned in the annexed index. H
70 SUPREME COURT REPORTS [2016] 3 S.C.R.

A All of the documents included in the aforementioned index. certified
by the Judicial Authorities 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!ndia in Chile.
The Government of Chile wishes to reiterate to the Government
B 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 ofthe Republic of Chile avails itself of this opportunity
c 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 24'h March, 2015 and the
accompanying documents as well as the notified order dated 28'h April,
20 IS the Government oflndia passed an orderon l S'h May, 201 S noting
D 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 primafacie case for the
extradition of the petitioner is made out. Accordingly, the Additional Chief
E Metropolitan Magistrate, Patiala House Courts, New Delhi took ·up the
case for consideration and this led the petitioner to challenge the notified
order of28 1hApril, 2015 and the order of 18'11 May, 2015 by filing W.P.
(Cr!.) No. 1215 of2015 in the Delhi High Court.
54. For the purposes of completing the record, it may be stated that
F a formal request for the extradition of the petitioner was placed before
the Additional Chief Metropolitan Magistrate, Patiala House Courts, New
Delhi by the Special Public Prosecutor on behalf of the Government of
India on 27'h May, 2015.
Proceedings in the High Court
G
55. The Delhi High Court took up both the writ petitions for
consideration. In its judgment and order dated 21" September, 2015
(impugned before us to a limited extent by the petitioner) the High Court
was primafacie satisfied that the Extradition Treaty was applicable to
British India. However, "since the issue involves complicated questions
H of political importance, it appears to us that the same cannot be decided
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 71
[MADAN B. LOKUR, J.]

conclusively on the basis of the limited material available before us." It A
was further held that "the Extradition Treaty executed on behalf oflndia
prior to 15 .08.194 7 cannot be held to have automatically ceased to exist
after India achieved sovereignty." The High Court concluded that the
interception of the petitioner on the basis of the Red Notice issued by
Interpol was not illegal but the provisional arrest of the petitioner under
B
Section 34-B of the Act could not be ordered in the absence of a notified
order under Section 3( I) of the Act. Consequently, the provisional arrest
of the petitioneron 24'h February, 2015 was held to be without jurisdiction.
56. As regards, the validity of the order dated I 8'h May, 2015
requesting for an inquiry whether the petitioner ought to be extradited or
not, the High Court held as follows:
c
"71. On a combined reading of Sections 1 and~ of the Act, it is
clear that the order of the Central Government for Magisterial
Inquiry into the extraditability of the offence committed by the
fugitive criminal would follow upon a request for extradition re-
ceived from the foreign State concerned. Thus, the proceedings D
for extradition would be set in motion with a request made by the
foreign State concerned under Section 1 of the Act.
72. In the present case, such extradition request under Section 1
of the Act was made by the Republic of Chile through its Em-
bassy on 24.03.2015. However, the fact remains that by that date E
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) ofScction J 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 F
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 can-
not be treated as a requisition for surrender in terms of Section 1
of the Act. In other words, a request made on or after 29.04.2015
can only be acted upon for directing Magisterial lnqui1y into the G
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 Magis-
terial Inquiry accepting the extradition request dated 24.03.2015
of the Republic of Chile. The fact that the provisions of the Act H
72 SUPREME COURT REPORTS [2016) 3 S.C.R.

A are made applicable subsequently to the Republic of Chile by no-
tification dated 28.04.2015 published in terms of Section KU of
the Act, in our considered opinion, is of no consequence. The
extradition request dated 24.03.2015 cannot be held to have been
validated by virtue of the subsequent notification dated 28.04.2015.
B 73. For the aforesaid reasons, we are of the view that the order
of the respondent No. I dated 18.05.2015 under Section~ of the
Act was passed without there being any val id request for
extradition from the Republic of Chile. Therefore, on that ground
itself the order dated 18.05.2015 is liable to be declared as illegal."
c 57. In view of its findings, the High Court declared the provisional
arrest of the petitioner as without jurisdiction and illegal and it was
accordingly set aside; the order for an inquiry under Section 5 of the Act
was also declared illegal and that too was set aside. However, the High
Court made it clear that its decision did not preclude the Government of
India from initiating appropriate steps afresh for the extradition of the
D petitioner following the due process of law. It is under these circumstances
that the issues are now before us.
Further developments
58. During the pendency of the writ petitions before the High Court,
E certain significant developments occurred that were apparently not
brought to the notice of the High Court. Some further developments
after the decision of the High Court have also been placed before us.
59. For reasons that are not clear, NCB Santiago conveyed a
diffusion request on 29'" May, 2015.: This was immediately followed by
F a communication from Interpol on 301h May, 2015 cancelling the Red
Notice as well as the diffusion request. The apparent reason for the
cancellauon \\u~ :!.::'.the Red Notice was being replaced by another
request.
60. Apparently, in light of the above developments, NCB Santiago
sent a request on 301" June, 2015 to Interpol for the issuance of a Red
G
2A'diffusion' is a '·request for rnuperation or alert mechanism." "This is less formal
than a notice but is also used to request the arrest or location of an individual or
additional information in relation to a police investigation. A diffusion is circulated
directly by an NCB to the member countries of their choice. or to the entire INTERPOL
membership and is simultaneously recorded in INTERPOL's Information System."
H [Information obtained from http://www.interpol.int/INTERPOL-expertise/Notices]
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 73
[MADAN B. LOKUR, J.]

Notice. This was followed by NCB Santiago sending a diffusion request A
on I" 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 S•h 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
B
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:- c
"The General Secretariat hereby is referring to the diffusion
circulated by NCB Santiago, Chili, on I de July de 2015 against
VERHOEVEN f/n Marie Emmanuelle (DOB 8 October 1959).
Please be advised that a red notice against the same individual for
the same facts and charges it is being reviewed by INTERPOL's D
Commission for Control Files (CCF). The CCF concluded in its
latest session to block the information as a precautionary measure
pending its final conclusion on whether the red notice is compliant
with INTERPOL's Constitution and rules. Therefore, the diffusion
will be deleted from INTERPOL databases. E
You are kindly requested to note that international police
cooperation through INTERPOL's channels in these cases would
not be in conformity with its Constitution and Rules.
Finally, you are requested to remove from your national databases
the information recorded against the aim individual based on the F
aforementioned diffusion.
The Office of Legal Affairs remains at your disposal for any
further information."
61. In an affidavit filed in the High Court on or about 28'h July, 2015
G
by the Central Bureau of Investigation (NCB - India Interpol, New
Delhi) in W.P. (Crl.) No.1215 of2015 it was categorically stated that:
"The result of this communication is that at present Red Corner
Notice issued by INTERPOL HQ and the Diffusion issued by
NCB-Chile are not in existence."
H
74 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 62. Be that as it may, it appears that pursuant to the analysis carried
out by Interpol on the request of Chile, a fresh Red Notice was issued
for the arrest and extradition of the petitioner by Interpol on 301h October,
2015.
63. Also, as a result of the liberty granted by the High Court, the
8 issue of the petitioner's extradition was again taken up by the Republic
of Chile. On 21" September, 2015 the Embassy of Chile gave a fresh
Note Verbale requesting for the provisional arrest of the petitioner for
the purpose of her extradition "on the basis of the Principles of
International Law derived from the multilateral conventions and bilateral
treaties on Extradition, among which is included the Extradition Treaty
c between the Republic of Chile and the Republic oflndia in force between
both countries, and complementarity on the basis of the provisions
contained in the said Treaty."
The Note Verba le of 21" September, 2015 reads as follows:
D "The Embassy of the Republic of Chile in India presents its
compliments to the Honourable Ministry of External Affairs of
the Republic oflndia, CPV Division, and 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 oflnternational Law derived
E 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 complementarity on the basis of the provisions
contained in the said Treaty.
F It is to be elevated to the highest attention of that Honourable
Division the Judgment passed Monday 21" 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
G 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 oflndia to provisional
arrest for the purpose of Extradition of the FC ..
H
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 75
[MADAN B. LOKUR, J.]

The Embassy of the Republic of Chile in India avails itselfofthis A
opportunity to renew to the Honourable Ministry of External
Affairs, CPV Division, the assurances of its highest esteem and
consideration."
64. A reading of the Note Verbale makes it quite clear that the
request for the provisional arrest of the petitioner was now made on the B
basis of the Extradition Treaty between Chile and India, with India having
made the Extradition Act, 1962 applicable to Chile. This is a significant
and material depa11ure from the earlier Notes Verba/es which indicated
an uncertainty of the existence and binding nature of the Extradition
Treaty.
c
65. Thereafter, acting on the Note Verbale an application was moved
by the Government of India for the provisional arrest of the petitioner
under Section 34-B of the Act and the prayer made was granted by the
Additional Chief Metropolitan Magistrate, Patiala House Courts, New
Delhi on 22nd September, 2015.
D
66. As far as the Republic of Chile is concerned, on l 9 1h October,
2015 its Deputy Special Investigating Judge in the Court of Appeals in
and for Santiago addressed a request to the Supreme Court of Chile "to
please cause that such steps as necessary are taken to initiate an
extradition proceeding" against the petitioner. Acting on the request, the
office of the Prosecutor in the Supreme Court submitted a report of61h E
November, 2015. In the report, an examination of all the relevant material
was carried out by the Prosecutor's office and it was concluded that it
was lawfully proper to request, through diplomatic channels and in
accordance with the extradition treaty between Chile and India, for the
extradition of the petitioner from India. F
67. In accordance with the laws in Chile, the matter was then
considered by the Supreme Court of Justice of Chile. In its decision
rendered on 11 'h November, 2015 the Supreme Court gave a finding that
the Extradition Treaty of 26•h January, 1897 between the Republic of
Chile and the United Kingdom of Great Britain and Ireland is an existing
G
Extradition Treaty between Chile and India. This Treaty was ratified by
the parties and enacted in Chile on I 41hApril, 1898. It was also published
in the Official Gazette in Chile on 22nd April, 1898. As such, it was held
that the Treaty is in full force and effect between the Republic of Chile
and the Republic of India. The Supreme Court also noted that the
provisions of the Extradition Act, 1962 had been made applicable to the H
76 SUPREME COURT REPORTS (2016] 3 S.C.R.

A 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 91h March,
B 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
c carried out on I" April, 1991 that resulted in the assassination of Senator
Jaime Guzman Erraw.riz. On this basis, the Republic of Chile gave a
Note Verbale on I 6'h November, 2015 with a formal request to the
Government of India for extraditing the petitioner.
70. The extradition request and the accompanying documents were
D examined by the Ministry of External Affairs and on 14'h December,
2015 an order was issued under Section 5 of the Act requesting the
Additional Chief Metropolitan Magistrate, Patiala House Courts, New
Delhi to enquire into the extradition request made by the Government of
Chile in respect of the petitioner.
E 71. On the substantive facts mentioned above, the petitioner filed a
writ petition in this Court under Article 32 of the Constitution being W.P.
(Crl.) No.178 of2015 on or about 29'h September, 2015. The prayers
made in the writ petition are for a writ of habeas corpus and a direction
forthe petitioner's release from Tihar Jail, New Delhi; a writ of certiorari
quashing the orders passed by the Additional Chief Metropolitan
F Magistrate, Patiala House Courts, New Delhi directing the provisional
arrest of the petitioner under Section 34-B of the Act and for quashing
the extradition proceedings .and for other consequential reliefs. The
petitioner also preferred Special Leave Petition (Crl.) No. 8931 of2015
on or about J3•h October, 2015 challenging the correctness of the
G judgment and order passed by the Delhi High Court to the extent that it
holds that the decision rendered by the High Court does not preclude the
Government ofindia from initiating appropriate steps for the extradition
of the petitioner after following the due process oflaw. The petitioner is
also aggrieved that the High Court did not strike down the notified order
of 28'h April, 2015 or conclude that there was no extradition treaty
H between Chile and India.
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 77
[MADAN B. LOKUR, J.]

Discussion on the existence of the Extradition Treaty A
72. The primary issue to be decided is whether there exists an
extradition treaty between India and Chile. In other words, the question
is whether the Extradition Treaty entered into on 26'h January, 1897
between the United Kingdom of Great Britain and Ireland with the.
Republic of Chile is still in force and binding on India and Chile. B
73. This question may first be looked at from the point of view of
the Republic of Chile. It appears, with great respect, that initially there
was some uncertainty in Chile about the existence of the Treaty. This
inference may be drawn from the Note Verbale of24'h February, 2015.
In that Note Verbal it was specifically acknowledged that there is no C
treaty on extradition between Chile and India. Therefore, the basis on
which a request for extradition of the petitioner was made by the
Government of Chile to the Government of India was on the basis of
reciprocity.
74. The Supre1ne Court of Chile, in its decision rendered on 91h D
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. E

75. The subsequent Note Verba le of24'h March, 2015 did not (and ·
could not) depart from this decision of the Supreme Court of Chile
rendered on 9 1h 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 F
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 26•h.January, 1897, in force for both countries." In any event, Chile
acknowledged the existence of the Extradition Treaty of 26 1h January, G
I 897 but it was not clear as far as the Government of Chile is concerned
whether that treaty was binding and in force in India and whether in the
context of bilateral treaties, the reference to 'both countries' was to
Chile and the United Kingdom of Great Britain and Ireland.
76. Subsequently however, there was clarity on the issue of the
H
78 SUPREME COURT REPORTS [2016] 3 S.C.R.

A existence of an Extradition Treaty between Chile and India when the
Supreme Court of Chile rendered its decision on 11th November, 2015.
The decision made it clear that there was in fact an Extradition Treaty
between Chile and India executed on 26th January, 1897 and that it was
in force and binding on India. In coming to this conclusion, the Supreme
Court of Chile relied on the notified order issued by the Government of
B
India on 28th April, 2015 (gazetted on 29th April, 2015) under Section
3( 1) [read with Section 3(3)] of the Act thereby making the Extradition
Treaty of 26th January, 1897 applicable to the Republic of Chile. The
Supreme Court of Chile found this to be conclusive (and, with great
respect, quite rightly) that the intention of the Government oflndia was
c to enforce the Extradition Treaty and make the Act applicable to the
Republic of Chile.
77. In addition to this, and perhaps to confirm whether the Republic
of Chile was bound by the Extradition Treaty, the Supreme Court of
Chile noted that it was ratified by the Government of Chile on J4rl' April,
D 1898. Thereafter, it was published in the Official Gazette on 22"d April,
1898. Therefore, if there was any doubt at all, it was made clear that
even the Government of Chile was bound by the provisions of the
Extradition Treaty.
78. The Supreme Court of Chile found, both from the point of view
E of the Government of Chile and the Government oflndia that there is in
existence and in force a binding Extradition Treaty between the two
countries.
79. Now, the issue may be looked at from the point of view of the
Government oflndia. Learned counsel relied on the Report of the Expert
F Committee No. IX on Foreign Relations particularly paragraphs 42 to 45
thereof which relate to existing treaties and engagements between India
and other countries and tribes. He strongly relied upon its contents to
submit that the Extradition Treaty was no longer in existence. The Report
of the Expert Committee No. IX on Foreign Relations is a part of the
Partition Proceedings (Vol. Ill). In the Preface to this volume by the
G Partition Secretariat of the Government oflndia on 5th December, 194 7
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.
H
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 79
[MADAN B. LOKUR, J.]

entered into by the Government oflndia or by H.M.G. in which India or A
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 oflndia, to be subject to the obligations and entitled to B
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
c
of a Dominion. The position which Pakistan will occupy in this
respect is, however, not altogether clear. If she is regarded as
a new State, one view is that she will not be bound by any
treaty to which the pre-partition India was a party nor will she
be entitled to any benefits thereunder. This conclusion is also D
supported by the opinion of international jurists, and according
to Sir Thomas Ho Iland -
"In the case ofloss of part of territory, the old State continuing
to exist, if the lost part, however separated, becomes an
independent State, it starts free ofall general obligations; nor, E
on the other hand, can it claim any of the general advantages
which it enjoyed when part of the State from which it has
been separated."
81. Thereafter, in paragiaph 45 of the Report, the Committee
expressed its inability to pronounce an authoritative opinion on the legal F
aspects of the matter in view of the short time available. The Committee
recommended that both Governments (India and Pakistan) should take
steps to obtain expert legal opinion on all aspects of the matter.
82. It was pointed out by learned counsel for the petitioner that
Annexure V to the Report does not mention the Extradition Treaty G
between India and Chile although three other extradition treaties are
mentioned. It was submitted, in view of this, that the Expert Committee
on Foreign Relations did not recognize the existence of the Extradition
Treaty between United Kingdom of Great Britain and Ireland and Chile
or indeed between India and C~ile.
H
80 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 83. Learned Additional Solicitor General submitted in response that
the list was not exhaustive and the report of the Expert Committee was
subsequently considered by the Steering Committee which gave a note
that it was in substantial agreement with the views expressed by the
Expert Committee and that the conclusions reached by that Committee
should be approved. However, the Steering Committee noted that the
8
Expert Committee had not been able to reach an agreed decision on the
juridical position on the international personalities oflndiaand Pakistan
and its effect on treaty obligations and membership of International
Organizations. Accordingly, the Steering Committee proposed to put up
a separate note for consideration by the Partition Council. The view of
c the Steering Committee reads as follows:-
"The report of Expert Committee No. IX appointed to examine
the effect of partition on foreign relation is attached. The Steering
Committe~ are in substantial agreement with the views expressed·
therein and recommend that the conclusions reached by the
D Committee be approved.
2. The Expett 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
E membership oflnternational Organisations (paragraph 4 7). 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
F 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
G
regarding international personality and treaty obligations. :fhis was with
respect to who inherits the international obligations and corresponding
privileges contracted by the Government of India. The Steering
Committee examined the matter threadbare and gave its conclusions as
follows:-
"To sum up, the position in international sphere consequent upon
H
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 81
[MADAN B. LOKUR, J.]

the setting up of the two new Dominions will be as follows:- A
(I )All international obligations assumed by pre-existing India will
devolve on the Dominion oflndiaand that Dominion will be entitled
to the rights associated with such obligations. (In this category
will fall India's membership of the United Nations.)
(2)All international obligations assumed by the pre-existing India B
which have exclusive territorial application to any area comprised
in Pakistan will devolve on the Dominion of Pakistan with all the
rights associated with such obligations.
(3)All international obligations assumed not by the international
entity known as India as such but by His Majesty's Government c
in the United Kingdom acting on behalf of the British overseas
possessions and which have territorial application to India as a
whole will devolve on both the Dominions with all the rights
associated with such obligations."
86. It is significant that in the body of the note, the Steering Committee D
observed that "there may be treaties to which the whole British Empire
is a party and which may have territorial application to India as a whole.
The rights and obligatiOns under such treaties will likewise be inherited
by both the Dominions."
87. The note given by the Steering Committee was submitted for E
consideration of the Partition Council. It was recorded that Mr. Mohd.
Ali did not subscribe to the view set out in the note and that he considered
that the Government of India would disappear altogether as an entity
and would be succeeded by two independent Dominions of equal
international status. The Partition Council then considered the entire issue
F
and in its decision it was held as follows:-
"The Council agreed that the Constitutional Adviser [Mr. Cooke]
should be requested to evolve, if possible, a formula which would
meet the case of both sides. Such a formula, if evolved, would be
placed before the Pakistan and India Cabinets for their approval."
G
88. Following upon the decision of the Partition Council, the
Governor-General issued the Indian Independence (International
Arrangements) Order, 1947 on 141h August, 1947 which recorded an
agreement between the Dominion oflndia and theDominion of Pakistan.
The Schedule to the Order is important and this reads as follows:-
H
82 SUPREME COURT REPORTS [2016] 3 S.C.R.

A "SCHEDULE
Agreement as to the devolution of international rights and
obligations upon the dominions oflndia and Pakistan
1. The international rights and obligations to which India is entitled
and subject immediately before the 1S'h day of August, 194 7, will
B devolve in accordance with the provisions of this agreement.
2. (I) Membership of all international organizations together with
the rights and obligations attachingto such membership, will devolve
solely upon the Dominion oflndia.

c 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.
D
(2) The Dominion of Pakistan will take such steps as may be
necessary to apply for membership of such international
organizations as it chooses to join.
3. ( 1) Rights and obligations under i1iternational agreements having
an exclusive territorial application to an area comprised in the
E
Dominion oflndia will devolve upon that Dominion.
(2) Rights and obligations under international agreements having
an exclusive territorial application to an area comprised in the
Dominion of Pakistan will devolve upon that Dominion.
F 4. Subject to Articles 2 and 3 of this agreement, rights and
obligations under all international agreements to which India is a
party immediately before the appointed day will devolve both upon
the Dominion of India and upon the Dominion of Pakistan, and
will, if necessary, be apportioned between the two Dominions."
G 89. It is quite clear from the above, that all international agreements
to which India (or British India) was a party would devolve upon the
Dominion oflndia and the Dominion of Pakistan and if necessary the
obligations and privileges should be apportioned between them. There is
no limitation in the above Order that it is only with regard to the 627
treaties mentioned by the Expert Committee No. IX on Foreign Relations
H
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 83
[MADAN B. LOKUR, J.]

- the reference is to "all international agreements". Quite clearly, the A
extradition treaty between the United Kingdom of Great Britain and
Ireland and Chile was a part of all the treaties entered into (by India or
British India) and in terms of the above Order the rights and obligations
in that treaty devolved upon the Dominion oflndia and the Dominion of
Pakistan.
B
90. That apart and additionally, as already mentioned above, when
an issue was raised in Parliament on I 61h March, 1956 by Smt. Ila
Palchoudhury, Prime Minister Shri Jawaharlal Nehru (who was also the
Minister of External Affairs) laid on the table of the House a list of
treaties concluded before Independence on behalf of India and which
were still in force. The Extradition Treaty of 261h January, 1897 was
c
included in that list and therefore as far back as in 1956 (much before
the present controversy arose) the Government oflndia was of the view
that there was an extradition Treaty with Chile.
91. It will also be useful to recall the debate in Parliament on 71h
August, 1962 on the Extradition Bill when Shri D.C. Shanna, an Hon'ble D
Member of Parliament, referred to the existence of a large number of
extradition treaties entered into before l 5'h 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 E
"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. 11.3 The Document notes: F
"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
G
changes in international status (constitution ofunions 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
3
http://www.un.org/law/ilc/index.htm H
84 SUPREME COURT REPORTS [2016] 3 S.C.R.

A that most of the extradition treaties concluded by the United Kingdom
also applied to India. It is noted that in 1956 the Prime Minister oflndia
tabled a list of treaties with 45 countries. It is further noted that a similar
issue was also raised during the passage of the Extradition Bill and the
Minister of Law took the same position, namely, that extradition treaties
concluded by the United Kingdom remain in effect, despite some
B
argument to the contrary.
94. Our attention has also been drawn to the Consular Manual
(Revised Edition 1983) issued by the Ministry of External Affairs. This
appears to be an internal document for the benefit of officers of the
Ministry of External Affairs. This makes a reference in Chapter 8 to
c Annexure Ill on extradition treaties with foreign countries executed by
the Government of the United Kingdom on behalfoflndia prior to January
1938 and still in force. In that list is mentioned the Extradition Treaty
with Chile executed on 261h January, 1897. It may be recalled that the
Gazette oflndia of 12•h November, 1898 reproduced the Order in Council
D published in the London Gazette of J2•h August, 1898 pertaining to the
Extradition Treaty between the United Kingdom of Great Britain and
Ireland and the Republic of Chile. Therefore, not only was the Extradition
Treaty recognized as binding on the Government of the United Kingdom
of Great Britain and Ireland but also that it was in force in India.

E 95. In our opinion, there is more than sufficient material to conclude
that from 1897-1898 onwards, the Government of British India and the
Government of India considered itself bound by the Extradition Treaty
entered into with the Republic of Chile on 26'11 January, 1897 and the
Government of India has always been of the view that the Extradition
Treaty is in force in India.
F
96. Therefore, both from the point of view of Chile and India, the
Extradition Treaty is in existence and binding upon each State.
Proceedings in the International Court of Justice
97. However, learned counsel for the petitioner contended,
G notwithstanding this, that the Extradition Treaty was not binding on India,
although the existence of the Treaty might not have been denied. In this
context he relied on the contention advanced on behalf of the Government
oflndia in the preliminary objection to the assumption ofjurisdiction by
the International Court of Justice on Pakistan's application in the case
concerning the Aerial Incident ofHf" August, 1999 (Pakistan v. India)
H
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDI~ 85
(MADAN B. LOKUR, J.]

decided on 2 I" June, 2000." A
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 oflnternational Disputes signed at Geneva on 26'h September,
1928. This was specifically stated by the Minister for External Affairs in
a communication addressed to the Secretary General of the United B
Nations on l 8'h 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:- c
"28. Thus India considered that it had never been party to the
General Act of 1928 as an independent State; hence it cou Id 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 D
circumstances of the present case as having served the same
legal ends as the notification of denunciation provided for in Article
45 of the Act. On 18 October 1974 the Legal Counsel of the
United Nations, acting on instructions from the Secretary-General,
informed the member States of the United Nations, together with
Liechtenstein, San Marino and Switzerland, of India's E
"notification". It follows from the foregoing that India, in any event,
would have ceased to be bound by the General Act of J 928 at the
latest on 16 August 1979, the date on which a denunciation of the
General Act under Article 45 thereof would have taken effect.
India cannot be regarded as party to the said Act at the date F
when the Application in the present case was filed by Pakistan.
It follows that the Court has no jurisdiCtion to entertain the
Application on the basis of the provisions of Article 17 of the
General Act of 1928 and of Article 37 of the Statute."
On this basis, it was held that the International Court of Justice had
G
no jurisdiction to entertain the application of Pakistan. The decision of
the International Court of Justice has really no relevance to the facts of
the case before us.
I 00. Be that as it may, a completely misconceived reliance was
' !CJ Reports 2000, page I 2
H
86 SUPREME COURT REPORTS [2016] 3 S.C.R.

A placed by learned counsel for the petitioner on the counter-memorial
filed by the Government of India to the memorial filed by Pakistan in the
above proceedings. In the counter-memorial, a reference was made to
a notification of succession to the General Act of 1928 received by the
Secretary-General from the Government of Pakistan on 301h May, 1974.
In response to that notification, the Minister of External Affairs sent a
B
notification to the Secretary-General on I 81h September 1974. Learned
counsel for the petitioner relied upon certain passages from the
notification.The relevant portions of the notification relied on by learned
counsel are underlined by us. The notification says, inter alia the
following:
c " ... 2. In the aforementioned communication, the Prime Minister
of Pakistan has stated, inter alia, that as a result of the constitutional
arrangements made at the time when India and Pakistan became
independent, Pakistan has been a separate party to the General
Act of 1928 for the Pacific Settlement of International Disputes
D from the date of her independence, i.e. 14th August 194 7, since in
accordance with Section 4 of the Indian Independence
(International Arrangements) Order 194 7, Pakistan succeeded to
the rights and obligations of British India under all multilateral
treaties binding upon her before her partition into the two successor
States.
E
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
F 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 oflndia has the following
G observations to make:
(I) The General Act of 1928 for the Pacific Settlement of
International Disputes was a political agreement and was an integral
pa11 of the League of Nations system. Its efficacy was impaired
by the fact that the organs of the League of Nations to which it
H refers have now disappeared. It is for these reasons that the
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 87
[MADAN B. LOKUR, J.]

General Assembly of the United Nations on 28 April 1949 adopted A
the Revised General Act for the Pacific Settlement oflnternational
Disputes. (2) Whereas British India did accede to the General
Act of 1928, by a communication of21 May 1931, revised on 15
February 1939, neither India nor Pakistan, into which British lndia
was divided in 1947, succeeded to the General Act of 1928, either
B
under general international law or in accordance with the provisions
of the Indian Independence (International Arrangements) Order,
194 7. (3) India and Pakistan have not yet acceded to the Revised
General Act of 1949. (4) Neither India nor Pakistan have regarded
themselves as being party to or bound by the provisions of the
General Act of 1928. This is clear from the following: (a) In J 94 7, c
a list of treaties to which the Indian Independence (International
Arrangements) Order, 194 7 was to apply was prepared by' Expe1t
Committee No. 9 on Foreign Relations'. Their report is contained
in Partition Proceedings, Volume lll, pages 2 J 7-276. The list
comprises 627 treaties in force in l 94 7. The J 928 General Act is
D
not included in that list. The report was signed by the
representatives of India and Pakistan. India should not therefore
have been listed in any record as a party to the General Act of
1928 since 15 August 1947. (b) In several differences or disputes
since 1947, such as those relating to the uses of river waters or
the settlement of the boundary in the Rann of Kutch area, the E
1928 General Act was 11ot relied upon or cited either by India or
by Pakistan. (c) In a case decided in l 961, the Supreme Court of
Pakistan while referring to the Indian Independence (International
Arrangements) Order, 1947 held that this Order 'did not and,
indeed, could not provide for the devolution of treaty rights and
F
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'. Such treaties would include treaties ofalliance,
arbitration or commerce. The Court held that 'an examination of
the provision of the said Order of 1947 also reveals no intention to G
depart from this principle'. (d) Statements on the existing
international law of succession clearly establish that political treaties
like the J 928 General Act are not transmissible by succession or
by devolution agreements. Professor O'Connell states as follows:
'Clearly not all these treaties are transmissible; no State has yet
1-1
88 SUPREME COURT REPORTS · [2016) 3 S.C.R.

A 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;
B
Succession of States and Governments, Doc. A/CN .4/149-Add. l
and A/CN.41150 - Memorandums prepared by UN Secretariat
on 3 December 1962 and I 0 December 1962, respectively; and
Oscar Schachter, 'The Development of International Law through
Legal Opinions of the United Nations Secretariat', British Yearbook
c of International Law (1948) pages 91, I 06-1 07. ( 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 the matter.
.o Although the Government of India did not appear in these
proceedings on the ground that their consent, required under the
relevant treaty, had not been obtained before instituting these
proceedings, their views regarding the nonapplication of the General
Act of 1928 to India-Pakistan were made clear to the Court by a
E communication dated 4 June 1973 from the Indian Ambassador
at The Hague.
4. To sum up the 1928 General Act, being an integral part of the
League of Nations system, ceased to be a treaty in force upon
the disappearance of the organs of the League ofNations. Being
F a political agreement it could not be transmissible under the law
of succession. Neither India nor Pakistan have regarded
themselves as bound by the General Act of 1928 since 194 7. The
General Act of 1928 was not listed in the list of627 agreements to
which the Indian Independence (International Arrangements)
Order, 194 7 related and India and Pakistan could therefore not
G have been listed in any record as parties to the 1928 General Act.
Nor have Pakistan or India yet acceded to the Revised General
Act of 1949.
5. The Government of Pakistan, by their communication dated 30
May 1974, have now expressed their intention to be bound by the
H General Act of 1928, without the reservations made by British
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 89
[MADAN 8. LOKUR, J.]

India. This new act of Pakistan may or may not amount to A
accession to the General Act of 1928 depending upon their wishes
as a sovereign State and the position in international law of the
treaty in question. In view of what has been stated above, the
Government of India consider that Pakistan cannot, however,
become a party to the General Act of 1928 by way of succession
8
under the Indian Independence (International Arrangements)
Order, 194 7, as stated by Pakistan.
101. The notification of 30'h May, 1974 of the Government of
Pakistan was only with reference to succession by Pakistan to the rights
and obligations of British India to all treaties binding upon her before
partition including, of course, the General Act of 1928. That is all. The c
.response notification of l 8'h September, 1974 given by the Minister of
External Affairs to the Secretary-General of the United Nations therefore
confined itself to the General Act of 1928 and the effect of the Indian
Independence (International Arrangements) Order, 1947 and must be
appreciated in that context. The Government oflndia was explicit that it D
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 thatthe Supreme Court of Pakistan, in
Messrs. Yangtze (Lo11do11) Ltd. v. Barias Brothers 5 had taken the
view that 'The Indian Independence (International Arrangements) Order,
1947 did not and, indeed, could not provide for the devolution of treaty E
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 ofStates." 6
In other words, even the Supreme Court of Pakistan held the view that
the Indian Independence (International Arrangements) Order, 1947 did F
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 oflndia. The counter-memorial did not contradict or abrogate
the Indian Independence (International Arrangements) Order, 1947 as
suggested by learned counsel for the petitioner. G

102. The count..:r-111..:morial had nothing to do with any treaty with

'PLO 1961SC573
"Verbatim record of the J'llblic sitting held on 4'" April. 2,000 in the International Court
of Justice H
90 SUPREME COURT REPORTS [2016] 3 S.C.R.

A any country, much less the Extradition Treaty, nor did it concern itself
with any issue other than the issue of the jurisdiction of the International
Court of Justice to adjudicate the dispute between Pakistan and India in
the context of the General Act of 1928. The contents of the counter-
memorial did not validate the Report of the Expert Committee, as indeed
it cou Id not. This is the error made by learned counsel for the petitioner
B
in appreciating the proceedings before the International Court of Justice.
103. Learned counsel for the petitioner also forgets that the Indian
Independence (International Arrangements) Order, 194 7 had the effect
of an agreement between the Dominion of India and the Dominion of
Pakistan. These two Dominions did not agree to exclude any treaty,
c convention or agreement from the purview of the Indian Independence
(International Arrangements) Order, 194 7 as a result of the Partition
Proceedings. Indeed, neither Dominion could wish away the existence
of any pre-Independence treaty. On the contrary, the two Dominions
specifically agreed that the "rights and obligations under all international
D agreements to which India is a party immediately before the appointed
day will devolve both upon the Dominion oflndia and upon the Dominion
of Pakistan." Therefore, it is not possible to read the exclusion or
elimination of any treaty from the purview of the Indian Independence
(International Arrangements) Order, 1947, much less through the Report
of the Expert Committee. The Extradition Treaty with Chile was very
E much included in the arrangement between the Dominion of India and
the Dominion of Pakistan with only the question of apportionment kept
open, if necessary.
104. We also cannot overlook the submission of the learned
Additional Solicitor General that the Report of the Expert Committee
F was not the final word on the subject under discussion. The Report was
considered by the Steering Committee whose views were then considered .
by the Partition Councif. It is only thereafter that some finality was
reached through an Order that had the effect of an agreement between
the two Dominions. The list of 627 treaties prepared by the Expert
Committee was not exhaustive nor was it intended to be exhaustive, nor
G
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, 194 7 issued by the Governor-General
(Reforms) did not specify any treaty or treaties but al I inclusively referred
H to the devolution of the rights and obligations under all international
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 91
[MADAN B. LOKUR, J.]

agreements, without limitation. A
I 05. 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.
I 06. Assuming the report .of the Expert Committee limited the B
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 oflndia of I2'h November, 1898. It is nobody's
case that the Report of the Expert Committee resulted in the termination c
or repudiation of pre-Independence treaties that were acknowledged to
be binding on India. Such a contention completely overlooks the contents
of the Indian Independence (International Arrangements) Order, 1947.
107. That the Extradition Treaty was in existence and it was not
unilaterally terminated or repudiated is also clear from two major overt D
acts: firstly, the statement of the Prime Minister in Parliament recognizing
an Extradition Treaty with Chile and secondly, the statutory enactment,
namely, the Extradition Act, 1962 which specifically gave recogniti'on
through Section 2(d) thereof to all extradition treatres entered into prior
to 15'h August, 1947. If there was any controversy whether the
Government oflndia recognized itselfas bound by the Extradition Treaty, E
then that was put to rest by the notified order of28'h April, 2015 under
Section 3( I) of the Act (gazetted on 29'h April, 2015 with a corrigendum
issued on I I •h August, 2015) whereby the Government of India made
the Act applicable to the Republic of Chile. This left absolutely no manner
of doubt that India was bound by the obligations under the Extradition F
Treaty. These public and overt acts after Independence confirm and
acknowledge, on behalfoflndia, the existence and binding nature of the
Extradition Treaty between India and Chile.
I08. That apart, this Court has taken the view in Rosilbte George
v. U11ion ofIndia & Ors. 7 (relying upon Babu Ram Saksena v. State 8 )
G
that our Independence and subsequent status as a sovereign republic did
not put an end to the treaties entered into prior to I S1h August, J 94 7 by
the British Government on behalf of India. This is what was said in

1
<199-1) 2 sec so
8
1950 SCR 573 [5 Judges] H
92 SUPREME COURT REPORTS [2016J 3 S.C.R.

A paragraph 26 of the Report:
"It is thus obvious that in Babu Ram Saksena case this Court
approved the proposition of international law that a change in the
form of Government of a contracting State does not put an end to
its treaties. India, even under British rule, had retained its personality
B as a State under international law. It was a member of the United
Nations in its own right. Therefore, grant of independence in the
year 1947 and thereafter the status of Sovereign Republic could
not have put an end to the treaties entered into by the British
Government prior to August 15, 194 7 on behalfoflndia."

c 109. Nothing can be a clearer exposition of the law, particularly
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
oflndia terminate the Treaty or did it recognize its obligations under the
Extradition Treaty? In this context, reference must be made to Article
D XVlll of the Extradition Treaty. This reads as follows:-
"The present Treaty shall come into force ten days after its pub-
lication in conformity with the forms prescribed by the laws of the
High Contracting Pat1ies. It may be terminated by either of the
High Contracting Parties by a notice not exceeding one year, and
E 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
F
to t!1is 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 appli-
cable to Chile.
110. Our attention was also drawn to Ha/sbury's Laws of En-
G
glamf wherein it is stated in paragraph 642 with regard to treaties en-
tered into by the 'mother state' on behalf of its colonies as follows:
"642. Te1Titorial application clauses. The position offonnercolonial
territories with regard to treaties entered into by their mother state,
----
H 9
Volume 18(2) 4'" Edition
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 93
[MADAN B. LOKUR, J.]

after their independence, is influenced by the existence in some A
such treaties of territorial or colonial application clauses. These
in effect permit non-metropolitan territorial sub-divisions of states
to contract in or contract out of treaties independently of the 111other
country. Incidentally, therefore, when self-governing dominions
of the Crown eventually achieved statehood the question whether
B
they succeeded to United Kingdom treaties did not arise, since
they were already patiies to them. Similarly, when other British
overseas territories were granted independence, the prime question
in relation to treaties was often not whether those territories
succeeded to the treaties, but whether those treaties already applied
to them in their new international capacities by some territorial c
clause contained in them."
A reference was made to India in a footnote to the aforesaid passage,
to the effect that though she was not a self-governing State at the relevant
time, she was an original member of the United Nations and a party to
the Cha1ier of the United Nations in her own right. In this context, we D
might also recall that as far as the Treaty is concerned, India had gazetted
it in the Gazette oflndia of I 2'h November, 1898 when it reproduced the
Order in Counci I, even though India was, at that time, not a self-governing
State.
A political question - alternative view E
111. It was submitted by the learned Additional Solicitor General, in
the alternative, that the existence of a treaty is a political question and
that this Court cannot go into the issue whether there is a subsisting and
binding treaty of extradition between India and Chile. Effectively, the
contention is that the word of the Government of India on the existence F
ofa treaty should be accepted. It is difficult to fully accept the proposition
in the broad manner in which it has been stated.
112. In Sayne v. Slzipleyi 0 in a discussion pe1iaining to the 1903
treaty between the United States and the Republic of Panama, it was
held, referring to Terlimle11 v. A111es 11 and Iva11cevic v. Artukovic 1 ~
G
that the conduct of foreign affairs is a political function but the advice
that a treaty is stil I in effect is not conclusive though it is entitled to great
weight and importance. It was said as follows:
'" 418 F.2d 679 [United States Court of Appeals. Filth Circuit]
II 184 U.S. 270 (1902)
12 211 F.2d 565 [United States Court of Appeals. Ninth Circuil]
H
94 SUPREME COURT REPORTS [2016] 3 S.C.R.

A "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
B
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 ofAmerica and the Kingdom
c of Prussia concluded on l 61h June, 1852 and ratified on 30•h May, 1853]
has ever been terminated, governmental action in respect to it must be
regarded as of controlling importance."
114. In Jliirad v. Ferrandina 13 the Government of India sought
the extradition of an Indian citizen from the United States, relying on the
D 1931 extradition treaty between the two countries. It was held as follows:
"Whether an extradition treaty exists is an issue with major foreign
policy implications and one which does not easily fall within the
sphere of the Judicial Branch of Government. Thus, it is that courts
have given great weight to the position taken by the Executive
E Branch concerning the validity of extradition treaties. In Sayne v.
Shipley, the Fifth Circuit said:
"Because we recognize that the conduct of foreign affairs is a
political, not a judicial function, such advice from the Executive
Branch], while not conclusive on this Court, is entitled to great
F weight and importance."
In the case at bar, the United States, through the Acting Secretary
of State, certified on August 14, 1972, that "the treaty of extradition
between the United States and India is therefore considered a
good subsisting and binding convention between the United States
G and India." Further, the Executive Branch strongly indicated its
continuing affirmation of the Treaty when (in July of 1967), in
conjunction with a prior extradition between the United States
and India, notes were exchanged between the two Governments.

H "355 F. Supp. 1155 [S.D.N.Y. 1973]
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 95
[MADAN B. LOKUR, J.]

The position of the Executive Branch, though persuasive, is not A
conclusive. The Court must evaluate the facts concerning the
Treaty on its own."
115. There are a few other decisions on the subject, but there is
none that crystallizes the extent to which the judiciary can go in the
matter of determining whether a treaty is subsisting or not. The matter is B
certainly not free from doubt, but it does appear that there cannot be
complete judicial abstinence in the matter as mentioned in Sayne.
l I 6. In Baker v. Carr'• the United States Supreme Court (though
not dealing with extradition) observed that it would be erroneous to say
that every case relating to foreign relations lies beyond judicial cognizance. c
Reference was made to Terlinden and 'governmental action' on the
subject. This is what the Court had to say about judicial review and
foreign relations:
"Foreign relations: there are sweeping statements to the effect
that all questions touching foreign relations are political questions. D
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 E
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 ofits nature and posture
in the specific case, and of the possible consequences ofjudicial F
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 Terlinden v. Ames, 184 U.S. 270, 285, G
with Society for the Propagation of the Gospel in Foreign
Parts v. New Haven, 8 Wheat. 464, 492-495."
117. As far as we are concerned, in Rosiline George this Court

"369 U.S. 186 H
96 SUPREME COURT REPORTS [2016] 3 S.C.R.

A made a reference to a decision of the Supreme Court of the United
States in Tom C. Clark v. Alvi11aAlle11 15 wherein it was held thahvhether
a State is in a position to perform its treaty obligations is essentially a
political question. This view has been accepted by Justice Sathasivam in
Abu Salem Abdul Qayoom Ansari v. State of Maftarasfttra. 16
B 118. It was also observed in Rosilitte George that whether a treaty
has been terminated by a State is essentially a political question. It was
observed:
"Whether a treaty has been terminated by the State is essentially
a political question. The governmental action in respect to it must
c be regarded as of controlling importance. So far as India and the
United States of America are concerned, it is amply evidenced by
their actions that the two States fully recognise their obligations
under the 193 I treaty."
119. Although this may not necessarily be a fully accurate statement
D of the law, we leave it at that since the issue does not arise in these
cases. In any event, we leave these issues of termination of a treaty or
performance of treaty obligations being political questions to be decided
in an appropriate case. However, we can say that it does appear though,
that the reason for terminating an extradition treaty would be a political
question, so also whether India should enter into an extradition treaty
E with a foreign State and whether India should issue a notified order
under Section 3(1) of the Act making the Act applicable to a foreign
State would also be a political decision. But whether a treaty exists
between India and a foreign State may not necessarily be a political
question or a political decision-a lot depends on 'governmental action'
F which would certainly be of 'controlling importance' though not
conclusive. Nevertheless, we are clear that if the Executive were to
inform the Court that there exists a treaty between India and a foreign
State, the Court would defer to the decision of the Executive and would
not ordinarily question the information.

G Applicability of Section 34-B of the Act
120. It was submitted by learned counsel for the petitioner that the
detention and provisional arrest of his client on 22"d September, 2015
under Section 34-B ofthc Act soon after the judgment of the High Court
"331U.S.503. 518
H "(2011) II SCC214
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 97
[MADAN. B. LOKUR, J.]

was illegal. It was submitted that there was no request from Interpol to A
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 21" 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 B
a crime committed outside India can only be on the basis of a Red Notice.
It is true that in Blwveslt Jaya11ti Laklta11i v. State of Malwraslitra &
Ors. 17 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
c
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 subject to the condition that a request
for extradition, along with necessary evidence, would be produced by
the requesting State without delay. D
122. But the absence of a Red Notice does not preclude the
Government of India from arresting a fugitive criminal and producing
him or her before a Magistrate in accordance with law. Thereafter, the
provisions of Section 34-8 of the Act can be brought into play, provided
there is an urgent request from a foreign State for the provisional arrest E
of a fugitive criminal. This is precisely what transpired in the present
case when the Embassy of Chile made an urgent request through the
Note Verbale of 22nd September, 2015 for the arrest of the petitioner.
That Note Verbale was acted upon by the Government of India and an
application moved before the Additional Chief Metropolitan Magistrate,
Patiala House Courts, New Delhi who granted the prayer for the F
provisional arrest of the petitioner. No illegality or irregularity can be
found in the procedure adopted for the provisional arrest of the petitioner.
123. Learned counsel for the petitioner submitted that the petitioner's
arrest under Section 34-8 of the Act could be made only on a request
from a foreign State (as mentioned in the Section) and not by a G
representative of a foreign State or even the Embassy of a foreign State.
This argument is stated to be rejected. Section 2( e) of the Act defines a
foreign State to mean any State outside India and it includes every
constituent part, colony or dependency of such State. A request made
11 (2009) 9 sec ss 1 H
98 SUPREME COURT REPORTS [2016] 3 S.C.R.

A by the Embassy of a foreign State is as good as a request made by the
foreign State itself. If this is not accepted, it will lead to an absurd situation
where the Head of State or the Head of the Government of a foreign
State would be required to make a request for extradition. This is simply
not an acceptable proposition.
B Extradition and reciprocity
124. The principle of reciprocity has quite an 'ancient' history. As
noted in the Final Report of the International Law Commission (2014)
on "The obligation to extradite or prosecute" (aut dedere autjudicare):
"The role the obligation to extradite or prosecute plays in supporting
c international cooperation to fight impunity has been recognized at
least since the time of Hugo Grotius, who postulated the principle
of aut dedere aut punire (either extradite or punish): "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
D 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." 18
In other words, ifa State is unwilling to extradite a fugitive criminal,
E 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) 19 in the context of the Convention
against Torture, but "the Court's ruling may also help to elucidate the
F 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.= 0
125. In Rosiline George there is a discussion on extradition. It is
mentioned in the paragraph 16 of the Report that extradition denotes the
G process whereby under a concluded treaty, one State surrenders to any
other State at its request, a person accused or convicted of a criminal
offence committed in contravention of the laws of the requesting State,
18Hugo Grotius lived from 1583 to 1645
19Judgment of 20'h July, 2012: I.CJ. Reports 2012. p. 422
H '°Paragraph 65(15) of the above Report of the International Law Commission
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 99
[MADAN B. LOKUR, J.]

such requesting State being competent to try the alleged offender. A
"Extradition is founded on the broad principle that it is in the interest of
civilized communities that criminals should not go unpunished and on
that account it is recognized as a part of the comity of nations that one
State should ordinarily afford to another State assistance towards bringing
offenders to justice."
B
In Terlinden, it was said:
"Extradition may be sufficiently defined to be the surrender by
one nation to another of an individual accused or convicted of an
offence outside of its own territory, and within the territorial
jurisdiction of the other, which, being competent to try and punish c
him, demands the surrender."
I 26. The discussion on extradition by Justice Ganguly in Abu Salem
is not only very erudite but also very instructive. The learned Judge
noted that doctrinally speaking extradition has five substantive ingredients:
reciprocity; double criminality; extraditable offence; speciality and non- D
inquiry. For the present purposes, it is not necessary to deal with each
ingredient.
127. Suffice it to say that it is on the basis of reciprocity that the
Republic of Chile first sought the extradition of the petitioner as mentioned
in the Note Verbale of 24'h February, 2015. The same principle of E
reciprocity was resorted to by the Government oflndia when it sought
the extradition of Abu Salem from Portugal, although the request made
by the Government of India to Portugal sought his extradition also by
relying on the International Convention forthe Suppression of Terrorist
Bombings. Justice Ganguly, however, points out in paragraph 63 of the
Report that "The primary consideration for the request of extradition F
was the assurance of reciprocity."
128. For invoking the principle of reciprocity, there need not even
be an extradition treaty between India and the foreign State as is apparent
from a reading of the decision of this Court in Abu Salem. In fact, India
did not have any extradition treaty with Portugal and yet it made a request G
for the extradition of Abu Salem on the basis of reciprocity. It is only
around the time that the re4uest was made that the Government oflndia
issued a notified order under Section 3( I) of the Act directing that the
provisions of the Extradition Act, 1962 other than Chapter III shall apply
to the Republic of Portugal.
H
100 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 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 22"ct 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
B
requirement (in terms ofSection 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
c
130. It was also submitted by learned counsel that the Government
oflndia had not applied its mind at all when the Act was made applicable
to the Republic of Chile. This argument is also without any basis and
learned counsel has not pointed out or suggested any general or specific
procedure that the Government of India should follow for making the
D Act applicable to a foreign State, except the issuance of a notified order
under Section 3(1) of the Act. Admittedly, such a notified order has
been issued in respect of the Republic of Chile and the natural presumption
is that this official act has been done after due application of mind. In
any event, whether the Extradition Act is to be made applicable to a
E foreign State or not is entirely a political decision to be taken by the
Government oflndia and there must be judicial abstinence in this regard.
We have no doubt that this is an area that cannot be the subject matter
ofjudicial review.
131. It was also submitted that the High Court ought not to have
F given liberty to the Government oflndia to once again initiate the process
of extradition. The submission is misplaced. It is really for the Republic
of Chile to decide whether it would like to have the petitioner extradited
or not. The Government oflndia has no say in the matter. The Republic
of Chile decided to renew its request for the extradition of the petitioner
in November, 2015. The Government oflndia chose not to ignore that
G request but to act upon it. That is a political or diplomatic decision that
the Government of India took. The petitioner has no say in the matter
and judicial abstinence on such an issue prevents us from commenting
on the decision.
Dissemination of information
H 132. Finally, learned counsel for the petitioner commented on the
VERHOEVEN, MARIE-EMMANUELLE v. UNION OF INDIA 101
[MADAN B. LOKUR, J.]

dissemination of information by the Ministry of External Affairs through A
its official website. It was pointed out that the official website informs
everybody that India had entered an extradition treaty with Chile in 2015.
Learned counsel relied on this information to contend that the Government
oflndia does not recognize the Extradition Treaty of 1897 and there is
no extradition treaty entered into with Chi le in 2015. Consequently, the
B
entire proceedings against the petitioner are vitiated.
133. It is extremely unfortunate that the official website of the
Ministry of External Affairs gives misleading information not only to
Indians but also to the world 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 c
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 wht:n communication and D
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 E
dated 28 1h 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 al I. The errors
only show the laid-back manner in which the Ministry of External Affairs
conducts its internal affairs. To make matters worse, the corrigendum
gazetted on l J 1h August, 2015 fails to correct the error in the earlier F
notified order where the Extradition Act, 1962 is referred to as the Indian
Extradition Act, 1962. It is time that the Ministry of External Affairs gets
over the colonial hangover. Though the error is minor and not substantive,
it should not have been there at all. We need say nothing more on this
subject except to be optimistic and hope that the Ministry of External G
Affairs of the Government oflndia takes matters oflaw far more seriously
than is evident from the material on record before us.
135. It is time to realize that India is now a significant and important
player in the world stage. Very little attention appears to have been paid
to affairs of international law as is evident from the manner in which the H
102 SUPREME COURT REPORTS (2016) 3 S.C.R.

A affidavits have been drafted and filed by the Government of India not
only in the Delhi High Court but also in this Court. Most of the relevant
material handed over to us in Court by the learned Additional Solicitor
General did not form a part of any affidavit filed by the Government of
India. True, there is no dispute about the authenticity of the material
handed over to us in Court but that is not the issue. What is in issue is the
B
nonchalant response of the Government oflndia on a matter concerning
the liberty of an individual, even if that individual happens to be a foreign
national who is in India.
Conclusion

c 136. On the basis of the material before us, we hold that there is a
binding extradition treaty between India and Chile and that the provisions
of the Extradition Act, 1962 (other than Chapter Ill thereof) are applicable
to the Republic of Chile in respect of the offences specified in the
Extradition Treaty.

D 137. The extradition proceedings pertaining to the petitioner are
pending before the Additional Chief Metropolitan Magistrate, Patiala
House Courts, New Delhi. We make it clear that we have not pronounced
on the merits of the controversy pending before him and have confined
our consideration only to the existence or otherwise of the Extradition
Treaty between India and Chile. The learned Magistrate should decide
E on the extradition of the petitioner on the merits of the case and the
evidence before him. Any observations incidentally made by us on the
merits of the extradition requisition will not bind the learned Magistrate
for the purposes of the final outcome of the proceedings.
138. The writ petition and the criminal appeal are dismissed. No
F costs.
Devika Gujral Writ petition and appeal dismissed.