New Delhi: Delhi High Court on Monday sought the government's response on a plea by a French woman challenging the government's decision to extradite her after ratifying a 118-year-old treaty on charges that she had participated in a Chilean senator's killing in 1991.
A bench of Chief Justice G Rohini and Justice Jayant Nath issued notice to the External Affairs Ministry (MEA) seeking its reply on the plea of the woman, who has sought an interim stay of the extradition order as well as the notification by which the 118-year-old treaty has been given effect to.
"We are on the question whether detention of the petitioner was done in accordance with law or not. These (challenge to notification and treaty) are major questions and require consideration. Necessary counter affidavits be filed. Same be filed on or before July 31," the bench said.
The woman, Marie Emmanuelle Verhoeven, has also challenged her detention and sought that she be produced before the court.
Meanwhile, another bench of the high court has agreed to hear her bail plea on July 27.
56-year-old Verhoeven, a French national, was arrested on February 16 in Uttar Pradesh while she was entering India from Nepal and has been in judicial custody ever since. She is alleged to have participated in the assassination of Chilean senator Jaime Guzman Errazuriz on April 1, 1991.
On April 28, MEA, through a notification, had validated a 118-year-old extradition treaty between the United Kingdom and Chile, which when signed in 1897, was applicable to all British colonies including India.
Seeking interim relief for Verhoeven, senior advocate A S Chandhiok, who appeared for her, contended that the MEA's decision to give retrospective effect to the treaty was "illegal, arbitrary, mala fide and discriminatory".
He said the extradition treaty between Britain and Chile was signed under the Extradition Acts of 1870 to 1895, which was repealed by the Extradition Acts of 1989 and 2003.
In 1918, the applicability of the Extradition Act of 1870 on India was revoked and Fugitive Offenders Act of 1881 was made applicable, he said and added that in 1955, the Supreme Court had held that latter legislation cannot be kept alive as a consequence of Article 372 of the Constitution.
"Consequently, it is most respectfully submitted that the Extradition Treaty dated April 28, 2015 between India and Chile is unconstitutional, arbitrary, illegal and mala fide and must be struck down," the application filed though advocate Ramni Taneja has said.
Additional Solicitor General Sanjay Jain told the court
that Verhoeven was detained on the basis of a red corner notice which is issued in the case of fugitive criminals.
He also said that the Acts that Verhoeven claims would not apply, are applicable in her case.
Verhoeven has also contended in her application that the March 24 'note verbale', by which her extradition has been sought, has not been drafted as per Extradition Guidelines of India and thus, it "entitles her to be discharged and to be set at liberty forthwith as she has been incarcerated for nearly five months since the date of her arrest on February 16, 2015".
Referring to two orders of February and March 2015 of the Chilean courts, the application has contended that even "the Chilean Courts accept and recognize the fact that there is no Extradition Treaty between India and Chile".
Earlier on July 1, a single-judge bench of the high court had observed that not granting bail to Verhoeven was "harassment" and the government should look into it.
Extradition proceedings were initiated against Verhoeven on the request of the Chilean government which had alleged that she had participated in a conspiracy to commit a terror attack which had led to the death of senator Errazuriz.
In her plea opposing the extradition proceedings, she has contended that the treaty was ultra vires to the Constitution.
She has opposed the allegations of the Chilean government, saying she was falsely implicated in the case due to political vendetta as she was a "member of the Latin American Economic and Social Committee and had participated in special human rights missions".
She also claimed that she was an "officer of the prison administration in Chile as an assistant to the National Directorate" when she was staying there from 1985 to 1995.
In her plea, she has said that pursuant to the red-corner notice, she was apprehended in Germany on January 25 last year and kept in pre-trial detention.
The German court had rejected the extradition request of Chile after which she came here on a valid Indian visa, but was arrested in Uttar Pradesh on the basis of the red-corner notice, her plea challenging the treaty said.