The Supreme Court on Monday directed the release of 1993 Mumbai serial blasts convict Abu Salem after he serves 25 years in prison, in keeping with the terms of the extradition treaty between the Centre and the Portugal government.

Then deputy Prime Minister L.K. Advani had assured Portugal and the Supreme Court of that country that Salem would also not be handed the death penalty.

India must stick to the basis of the principle of “comity of courts” and “comity of nations”, the apex court said. It held that while Indian courts are not bound by extradition agreements, the executive has to abide by its assurances in such matters.

Salem, who was extradited to India on October 12, 2005, was sentenced to life imprisonment by a designated Tada court in 2017.

However, Salem had contended before the apex court that the Indian government wants to renege on its solemn assurance and may keep him in jail beyond 25 years. The Union government submitted before the top court that the question of restricting his sentence to 25 years would arise only when he completes the term.

Rejecting the Centre’s argument, a bench of Justice Sanjay Kishan Kaul and Justice M.M. Sundresh said “…On completion of the period of 25 years of sentence, in compliance of its commitment to the courts in Portugal, it is required that the government of India advise the President of India to exercise its powers under Article 72(1) of the Constitution to commute the remaining sentence, or that the government of India exercise powers under Sections 432 and 433 of the CrPC (power of government to commute sentences).

“We do believe that there is a necessity of making this time-bound so that it does not result in an unending exercise and, thus, the government of India must exercise the aforesaid powers or render advice on which the President of India is expected to act, within a month of the period of completion of sentence.”

The apex court noted that the courts of Portugal had earlier observed the principles of comity of courts by recognising that there is a separation of powers in India and, thus, the courts in India cannot give any assurance.

“The corresponding principle of comity of courts, thus, has to be observed such that the Government of India having given the solemn assurance, and having accepted the same before us, is bound to act in terms of the aforesaid. We are, thus, taking a call on this issue now and do not want to leave it to any uncertainty in future. This is of course subject to any aggravating aspect of the appellant.

“We conclude that the detention of the appellant commence from 12.10.2005 in the present case. On the appellant completing 25 years of sentence, the central government is bound to advise the President of India for exercise of his powers under Article 72 of the Constitution, and to release the appellant in terms of the national commitment as well as the principle based on comity of courts. In view thereof, the necessary papers be forwarded within a month of the period of completion of 25 years sentence of the appellant. In fact, the government can itself exercise this power in terms of Sections 432 and 433 of the Cr.P.C. and such an exercise should also take place within the same time period of one month,” Justice Sanjay Kishan Kaul, who authored the judgment, said.