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Decide On Extradition Of ISIS Woman From Afghanistan : Supreme Court Directs Centre On Father's Plea

Sneha Rao
3 Jan 2022 6:40 AM GMT
Decide On Extradition Of ISIS Woman From Afghanistan : Supreme Court Directs Centre On Fathers Plea
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The Supreme Court on Monday directed the Union Government to consider the request made by a father for the extradition of his daughter and granddaughter from Afghanistan.The Court passed the direction in a petition filed by VJ Sebastian seeking the extradition of his daughter Sonia Sebastian(now name changed as Aysha after conversion to Islam), who had left India in 2016 to join...

The Supreme Court on Monday directed the Union Government to consider the request made by a father for the extradition of his daughter and granddaughter from Afghanistan.

The Court passed the direction in a petition filed by VJ Sebastian seeking the extradition of his daughter Sonia Sebastian(now name changed as Aysha after conversion to Islam), who had left India in 2016 to join terrorist organization ISIS, and her minor daughter Sara, who were reportedly lodged in a prison in Afghanistan before the Taliban take over.

A bench comprising Justice L Nageswara Rao and Justice BR Gavai directed the Union Government to decide the representation made by VJ Sebastian within a period of 8 weeks. The bench also granted liberty to Sebastian to approach the High Court under Article 226 if he is aggrieved with the decision taken by the Union Government. The Court made it clear that it has not expressed any opinion on the merits of the matter.

Advocate Ranjith Marar, appearing for the petitioner, submitted that petition was filed in July 2021, before the take over of Afghanistan by the Taliban. Though the prisons were demolished after the Taliban came into power, it cannot be said that Sonia and her daughter are not in detention, as there are reports of prisoners being detained in border areas, the counsel submitted.

"We can direct the government to take a decision on your request because extradition matters are not matters where we can given decisions on matters like these….all these are matters for the government to decide", Justice Nageswara Rao observed during the hearing.

Advocate Marar submitted that so far as repatriation is concerned there is some difficulty as the Extradition agreement was with the erstwhile government.

Justice Rao responded:  "The change of government does not obliterate the agreement. The relations seems to be good if you see the newspapers..the government can be persuaded. But you have to first persuade the Indian government."

Marar submitted that the petitioner be given the liberty to approach the Supreme Court under Art.32 if they are aggrieved by the government's decision. In response, Justice Rao said that:   "We can direct the government to take a decision and if you are aggrieved you can approach the High Court..High Courts are also discharging constitutional duties and can interpret provisions of international law. We cannot diminish the status of High Courts."
Disposing of the writ petition, the Bench directed the Respondents- Cabinet Secretary and Secretary, Ministry of External Affairs to take a decision on the extradition requests within 8 weeks.


Background

A criminal case under the UAPA is pending trial in India against Sonia Sebastian for joining the terror organization ISIS. The petitioner contended that the Union Government was not taking active steps to extradite her to India. Sonia had accompanied her husband to Afghanistan to propagate the ISIS ideology. However, her husband got killed by Afhgan forces in 2019. After that Sonia and her daughter surrendered to Afghan forces.

The plea argued that the inaction of the Union Government to bring back the detenus constitutes violation of its obligations under international humanitarian law including the Universal Declaration of Human Rights,1948 (UDHR) and International Covenant on Civil and Political Rights, 1966.

Referring to an interview of 4 Indian women including the petitioner's daughter, uploaded as a documentary on YouTube, the plea has stated that it can be seen that the petitioner's daughter is repenting her decision to join ISIS and wants to return back to India and face fair trial before an Indian court.

The petitioner has argued that non-initiation of the steps for facilitating repatriation or extradition of the detenus by the respondents is illegal and unconstitutional as it violates their fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution of India.

"India has entered into an extradition treaty with Afghanistan in the year 2016 and the Instruments of ratification of the Treaty were exchanged at Kabul on 24th day of November 2019. Therefore by virtue of the extradition treaty each contacting state has agreed to extradite any person convicted or accused of an offence committed with in the territory of one state but is found in the territory of another state. Since India has not taken step for requesting an extradition, the 1st detene and the 2nd detenu are stuck in a foreign territory", the plea stated.

The Kerala High Court had refused to entertain a habeas corpus petition filed by the mother of Nimisha Fathima, another woman who left India to join ISIS like Sonia Sebastian, for her extradition from Afghanistan.

Case Title: VJ Sebastian Francis vs Union of India

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