[I must state at the outset that the my legal exposition in this post on my blog is ex parte, even without an access to the judgment delivered by the Danish High Court in Kim Davy’s Case. My views in this post must not be taken as a professional opinion. This author does not accept any responsibility for his views, nor does he subject himself to any obligation or liability’ for the views put forth. The post is an ordinary citizen’s efforts to stimulate people to reflect over certain matters of great public importance.My views are personal, are expressed in national interest pro bono publico. It matters not whether I am right or wrong in my comments. What matters is that my readers reflect over what had happened so that such things get never repeated ever.]
The profile of morbid facts
The infamous Purulia arms drop case is widely known for many ignoble reasons. From a flying Latvian aircraft arms were dropped in Purulia (West Bengal)l sometime in 1995. If you wish to know the story without delving deep into complicated facts, you can look up the Wikipedia on the internet. It is sufficient for my present purpose to tell you that the crew of the aircraft consisted of five Latvian nationals, and a mercenary Peter Bleach, a British national involved in arms deals. They were arrested by the Indian authorities, and the persons arrested were, as the Wikipedia says “sentenced to life imprisonment while alleged kingpin Niels Christian Nielsen (aka Kim Peter Davy), a Danish citizen and member of the Ananda Marg group, escaped.” The shocking denouement of this devastating episode has been thus stated there:
“Following the intervention of Russian authorities, the Latvian crew (who gained Russian citizenship while in Indian custody) were later pardoned and released in 2000. An appeal has been submitted by the pilots lawyer before the Calcutta High Court in March 2000 challenging the trial results and the judgement but it is still pending. Peter Bleach, too, was released on 4 February 2004, via a presidential pardon, allegedly due to persistent British pressure. In 2007 Kim Davy was traced by Denmark authorities, and it is possible he may be extradited to India for trial.”
Serpentine efforts were made to get Kim Davy extradited to India from Denmark. To cut the long story short, the Government of Denmark agreed to extradite Davy on certain agreed terms, but the extradition proceeding was challenged in the Danish courts. On June 30, 2011 the Eastern High Court in Copenhagen dismissed the Danish Government’s decision to extradite Davy on the grounds, as The Tribune of July 1, 2011 reports, ‘“of jail conditions and human rights issues” in India.’ The paper highlights Davy’s role in the aforementioned crime by reporting the following;
“Davy, the main accused in the dropping of a cache of arms in Purulia (West Bengal) from an AN-26 aircraft on December 17, 1995, has admitted to his role in the operation before the court and media several times. The consignment had hundreds of AK-47 rifles, pistols, anti-tank grenades, rocket launchers and over 25,000 rounds of ammunition.”
The CBI’s reactions have been succinctly set forth in the Tribune:
“We are yet to get a copy of the judgment, but as per initial reports, the extradition has been denied on grounds of jail conditions and human right issues, which is a subject outside purview of investigating agency,” said a CBI official, adding that once the judgment is received, CBI will request the Danish Ministry of Justice through the Ministry of External Affairs to appeal against the verdict in the Supreme Court of Denmark.”
It baffles us
An ordinary citizen has good reasons to get baffled by our Government’s easy indulgence to the gruesome culprits on the pressure and persuasion of powerful foreign powers for reasons apparently unwholesome. Such things take our mind to the days of the early ruthless British imperialism when Palmerston justified his intervention to protect the commercial interests of Don Pacifico by invoking the long dead and gone doctrine of the Roman Empire, already in the dustbin of history. This was the doctrine of civis Romanus sum (“I am a Roman citizen”), by which an ancient Roman could proclaim his rights throughout the empire to get his native State’s protection. But the habit of such unworthy indulgence is endemic when the political realm works only for the economic realm. This sinister trend has grown in the recent years of the economic globalisation out to promote neoliberal agenda. It has kept on coming into public domain in recent months how the high functionaries of the U.S. and the U.K. Governments plead to promote the corporate interests of their countries acting as the patrons, protectors, even promoters, of the corporate interests of their big clients.
We all know how public international law softened the arrogant doctrine of imperious intervention. I refer to the well-known principles of Nationality. But the Russian pressure to pardon and release the Latvian crew could not have been justified even on that count. How could acceptance of the Russian citizenship, while in the Indian prisons undergoing a sentence, justify the Russian intervention even on the principles of the law of Nationality which is now a species of the international public law? In the Nottebohm’ Case the International Court of Justice determined the principles governing “nationality” in these words:
“… a legal bond having as its basis a social fact of attachment, a genuine connection of existence and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute a juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as a result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State”
The International Court of Justice “found that there was no bond of attachment between Nottebohm and Liechtenstein, and that there was a long- standing and close connection between him and Guatemala, a link which his naturalization in Liechtenstein in no way weakened; that naturalization had been ‘ granted without regard to the concept of nationality adopted in international law’. Accordingly the Court held that Guatemala was under no obligation to recognize Nottebohm’s Liechtenstein nationality, and that Liechtenstein could not institute proceedings against Guatemala in respect of damage suffered by him”[ Oppenheim,s Internationa Law 9th ed Vol. 1 PEACE p. 854]. Oppenheim refers to the Federal German Constitutional Court’s decision in German Nationality (Annexation of Czechoslovakia Case ILR, 19 (1952), No. 56 in which the Court ‘accepted that while as a rule every state was entitled to provide in its own discretion how its nationality was acquired and lost, that discretion was subscribed by the general rules of international law according to which a state may confer its nationality only upon persons who have some close factual connection with it’[Oppenheim p. 856 fn. 20].
The morbid story of the Kim Davy Case: a monument of our incompetence in handling such affairs
I have mentioned above that the extradition of Kim Davy to India, which considers him the prime accused, was disapproved by the Danish High Court. I understand that the Government of India was no party to the court litigation in Denmark The order under challenge was of the Danish government. I further get from the reports in the public domain that there does not exist an extradition treaty between India and Denmark. But it baffles an ordinary person to understand why our Government did not try to enter into an extradition treaty with retro-operative effect. Our Government, history shows, seldom acts with vigilance. It believes to allow things to drift to fritter and fade, or to be just forgotten because of public amnesia.
As I have touched this point, I would reflect on the wrong done to our nation from two observation-posts: (i) if an extradition treaty between the governments existed; and (ii) if no such treaty exists between the two governments. I adopt a broad perspective.. I would first touch point (ii), then I would touch point (i).
When our Government found that Davy had escaped to Denmark, and chose to move the court against his extradition to India, it was the duty of our Government to become an intervener before the Denmark courts. The theatre of crime had been in India: hence it could have a legitimate locus standi before the Denmark court. It could have invoked the fundamental principles of judicial administration shared by all civilized jurisdictions. Whenever one finds that one’s interests are jeopardized by anyone’s litigious actions anywhere in the world, nothing prevents that person from moving the court to hear him before deciding a matter. It is beyond us to understand why the Government of India did not do so. It is all the more shocking that it did not do that despite the pleading by Kim Davy which had put our prison system on trial before a foreign forum. The Government of India’s actions are shocking. When I was arguing Azadi Bachao Andolan Case before the Supreme Court, before which the Government of India was an Appellant, a Mauritian company appeared for the first time praying to be admitted as a co-Appellant in the matter. Our Supreme Court allowed the prayer. In Crown Forest Industries v. Canada (1995) 2 S.C.R. 802, the Canadian Supreme Court was considering the Canadian-US Tax treaty as Canada-United States Tax Convention Act, 1984. The U.S Government felt that the decision of the Candian Supreme Court would adversely affect its interest. So the Government of United States became an intervener in the matter before the Court, and took serious efforts to protect and promote its interests. It engaged an eminent counsel, Brian A. Crane, Q.C., to act for the U.S. In the judgment the Canadian Supreme Court observed:
“The Minister appeals to this Court and is supported by the intervener, the Government of the United States of America, neither of which wishes Norsk to be considered a “resident” under the Convention.”
What has shocked me is the morbid equanimity and indifference with which our Government watched the discomfiture of our national honour. The Danish High Court has decided, as I get from the press, against Kim Davy’s extradition not on usual legal grounds, but on the ‘grounds “of jail conditions and human rights issues” in India’. If this stricture on our criminal administration system is allowed to stand, we would face serious embarrassment at most fora. If the indictment turns out, as made, to be on good grounds, why can’t someone move some High Court praying for a declaration that our criminal laws are in breach of Article 14 of the Constitution of India as they violate human rights: hence ipso jure are unreasonable. “ It was for the first time in E. P. Ayyappa v. State of Tamil Nadu, (1974) 2 SCR 348: (AIR 1974 SC 555), that this Court( the Supreme Court) laid bare a new dimension of Article 14 and pointed out that that Article has highly activist magnitude and it embodies a guarantee against arbitrariness… From a positivistic point of view equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment”. ” Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.” I wish a situation so morbid does not emerge. Let us see with what measure of prudence our Government responds to the challenge now posed. . I wish none becomes so depraved as to quote Shakespeare’s scoundrel Iago: “Reputation is an idle and most false imposition; oft got without merit, and lost without deserving”.
Taking account of the facts that the Government of India was no party to the litigation before the Denmark courts, our Government must consider the feasibility of taking the following actions to salvage our reputation, and to get Kim Davy back to India to face a trial:
(i) Our Government should persuade the Government of Denmark to prefer an appeal before the Danish Supreme Court. If that happens, our Government can engage its counsel to seek leave of the Court to become impleaded as a co-Appellant If the Court shows reluctance in granting this leave, prayer can be made to be admitted as an Intervener. As this humble self has studied both the common law jurisprudence and the civil law systems, I am sure that there is a good case for receiving judicial indulgence. Where justice demands a fair course, no technicality is allowed to stand on the way to justice.
(i) If our Government fails to persuade the Danish Government to prefer an appeal against the said decision of the High Court, our Government can itself try to seek the leave of the Danish Supreme Court to prefer an appeal against the High Court’s judgment. Our Government can point out before the Court that it has good reasons to be aggrieved by the decision of the Danish High Court. Arguments should also be based on the principles well recognized in the civilized jurisprudence, both common law and civil law.
Vigilance is most wanted whether there is an extradition treaty or it is not
The points I touch under the aforementioned heading might not be much relevant in the context of the said Kim Davy Case, yet the context has called up certain ideas which I set forth with utmost brevity for persons abler than me to reflect.
On several occasions I was amazed to see in our country an abysmal ‘knowledge deficit’ in the field of the law of treaties. I had opportunities to handle some such cases, and had the advantage of hearing even the Principal Law Officers of our Government before the Delhi High Court and the Supreme Court. Treaties have come to play great importance in this world of economic globalization. New realities demand a new comprehension of the subject. I have good reasons to believe there is a serious international effort to put neoliberal economic gloss even on our Constitution through treaty terms.
Those who want to study the law of treaties must first make a broad functional classification of treaties in 4 groups. I had placed before the Supreme Court this classification though the Court had no occasion to consider my classification. But I think it may help you comprehend the treaty related problems if you keep in view the broad divisions: hence I quote from my SLP. Treaties can be broadly classified into 4 groups:
(1) Where priority to a Treaty is specifically granted by a Statute: as in Section 2(1) of the European Communities Act, 1972 providing ‘ that such provisions of the Community law as in accordance with the Community treaties are to have direct effect shall be given such effect in the U.K; and s. 2(4) provides that any past or future statute shall be construed and have effect subject to the provisions of s. 2 (including, therefore, those providing for the direct effect of the Community law.’[Oppenheim p. 72].
(2) Where the Orders in Council under the Extradition Act 1870 [now replaced by the Extradition Act 1989 allowing for equivalent Orders in Council under sections . 3 and 4] provide that the Acts shall apply ‘under and in accordance with ‘ the relevant Extradition Treaty, the terms of which are directly before the courts’ [Oppenheim p. 59 ]. But Oppenheim comments: “But even in such circumstances a court may still ignore the treaty: R.. v. Davidson (1976) 64 Cr. App R. 209.”[ Oppenheim p. 59 fn. 25].
(3) Where the provisions of a Treaty are set out in a Schedule to an Act (e.g.. The Diplomatic Privilege Act 1964). But Oppenheim comments: at p. 59 fn. 25:
“since it is not wholly clear in that case whether the court would be applying a treaty, or a Schedule to an Act (which happens to be in identical terms with the provisions of a treaty): the latter is probably the correct view…..[ Oppenheim p. 60].
(4) Where treaties belong to the category in which come the Double Taxation Avoidance Agreements. These Treaties are done in exercise of the statutory power (Section 90 of the Income-tax Act, 1961) within the frontiers and under the discipline of Art. 265 of our Constitution (which imports in our Constitution analogous provisions from the Bill of Rights 1688). In a case of this sort the terms of a Tax Treaty can operate in the domestic jurisdiction only to the extent of the conformity with Section 90 of the Income-tax Act, 1961, Article 265 of our Constitution, and all other constitutional limitations to which the powers of the organs of the State are subject. Tax Treaties in our country do not come under the types (i) to (iii) supra. Grant of concessions beyond the reach of the terms of Section 90 are unconstitutional.
My unsolicited advice our Government would be that while entering into an extradition treaty with any country, it must inform itself well about public international law and the nation law of a given state, and also the norms resulting from their interplay. I would end this post on my blog quoting the words of wisdom stated by Judge Manfred Lachs of the International Court of Justice in In the North Se Continental Shelf Case [ICJ 1969, 3 at 222.].
“Whenever law is confronted with facts of nature or technology, its solution must rely on criteria derived from them. For law is intended to resolve problems posed by such facts and it is herein that the link between law and the realities of life is manifest. It is not legal theory which provides answers to such problems; all it does is to select and adapt the one which best serves its purposes, and integrate it within the framework of law.”
Let the things go ahead. But it is essential to know what had led to the ‘arms drop’, and with what purpose, for whose benefit. An inquiry is surely needed. People must know It must be done with all seriousness because I find some serious insinuations against certain politicians in power at that time. I feel baffled. Are we in Milo’s Roman Republic? The real facts must come into the sunshine. We must try to reach out to the real culprits who were responsible for the horrendous crime committed by paid hirelings. But will this ever happen? I believe not even someone’s self-serving insinuations be ignored if it affects the reputation of our polity. When all is said, the reputation of the Republic of India must not be allowed to get sullied.