Dr. Babu Ram Saksena vs The State

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. II of 1949

Decision Date: 5 May 1950

Coram: Hiralal J. Kania, Saiyid Fazal Ali, Mehr Chand Mahajan, B.K. Mukherjea

In the matter titled Dr Babu Ram Saksena versus The State, the Supreme Court of India delivered its judgment on 5 May 1950. The case was heard by a bench comprising Chief Justice Hiralal Kania, Justice Saiyid Fazal Ali, Justice Mehr Chand Mahajan, and Justice B K Mukherjea. The official citation of the decision is reported in the 1950 Annual Report of Indian Cases at page 155 and also in the 1950 Supreme Court Reports at page 573. The petitioner, Dr Babu Ram Saksena, challenged actions taken by the respondent, the State, concerning the legality of his arrest under the provisions of the Indian Extradition Act of 1903.

The central question before the Court involved the effect of the 1869 treaty between the British Government and the State of Tonk, which authorised extradition for offences classified as “heinous,” expressly excluding cheating and extortion. The Indian Extradition Act of 1903 later extended the scope of extraditable offences to include cheating and extortion, but section 18 of that Act stipulated that nothing in the Act would derogate from any existing treaty on extradition of offenders. The Court was required to consider whether the treaty continued to operate after the political changes brought about by the Independence of India Act of 1947, which ended the suzerainty of His Majesty over the Indian princely states and, by implication, the treaties executed under that suzerainty. The Court noted that a “standstill agreement” between the Dominion of India and the princely states, including Tonk, preserved the continuation of prior agreements, including extradition arrangements, despite the merger of Tonk into the United State of Rajasthan in 1947.

Dr Saksena, a member of the Uttar Pradesh Civil Service, had been seconded to the administration of Tonk in 1948. After returning to Uttar Pradesh, he was charged with the offences of cheating and extortion alleged to have been committed during his tenure in Tonk. He was arrested on an extradition warrant issued under section 7 of the Extradition Act of 1903. Seeking relief, he invoked sections 4-91 and 561-A of the Code of Criminal Procedure, arguing that his detention was unlawful because the 1869 treaty, as preserved by section 18 of the 1903 Act, did not permit extradition for the offences of cheating and extortion.

The Court, speaking for Chief Justice Kania and Justice Patanjali Sastri with Justice Fazal Ali concurring, held that even if the 1869 treaty survived the merger of the Tonk State, the provisions of the 1903 Extradition Act, which allowed for extradition of additional offences, did not contravene the treaty or the rights of Indian citizens thereunder. Consequently, the arrest and surrender of the petitioner under section 7 of the Act were not rendered unlawful by the treaty. Justice Mukherjea, joined by Justices Fazal Ali, Mahajan and Das, concurred, observing that the 1869 treaty could not be given effect in the circumstances of the merger, and therefore section 18 of the 1903 Act was inapplicable; having complied with the conditions of section 7, the arrest warrant was found to be valid.

In the present matter, the Court observed that because the former Tonk State had merged into the United State of Rajasthan, no enforceable right under the earlier extradition treaty persisted. Consequently, section 18 of the Extradition Act of 1903 could not be invoked. The Court further noted that all the statutory requirements of section 7 of the same Act had been satisfied, and therefore the warrant of arrest that had been issued pursuant to that provision was not illegal.

The appeal was filed under appellate jurisdiction as Criminal Appeal No. II of 1949, seeking special leave from the order of the Allahabad High Court dated 11 November 1949 in Criminal Miscellaneous Case No. 960 of 1949. The judgment of the Supreme Court, delivered on 5 May 1950, recorded the full facts and the arguments presented by counsel. The appellant was represented by counsel for the petitioner, while counsel for the respondent, the Attorney-General for India, appeared for the State. The case arose from an application under sections 491 and 561-A of the Code of Criminal Procedure for the release of the appellant, who had been arrested pursuant to an extradition warrant issued by the Regional Commissioner of the United State of Rajasthan, the principal Crown officer in that territory. The appellant, a member of the Uttar Pradesh Civil Service, had been appointed in 1948 to serve the erstwhile Tonk State in various capacities. During his service, he was alleged to have assisted the Nawab in obtaining Government of India approval for the payment of Rs 14 lakhs from the State Treasury to discharge the Nawab’s debts, and to have induced the Nawab, by threats and deception, to pay the appellant sums totalling Rs 3 lakhs on several occasions. On the basis of these allegations, the appellant was charged with offences under section 383 (extortion) and section 420 (cheating) of the Indian Penal Code, both of which are extraditable offences under the Indian Extradition Act, 1903. The warrant, issued under section 7 of the Act, was directed to the District Magistrate of Nainital, where the appellant resided after rejoining the Uttar Pradesh Government, ordering his arrest and surrender to the District Magistrate of Tonk. The appellant contended that the Rs 3 lakhs had been handed to him by the Nawab for safe-deposit in a bank for the Nawab’s use in Delhi, that no offence had been committed, and that the amount was returned when the Tonk authorities demanded it. He further asserted that the warrant had been issued mala fide, motivated by personal enmity, and raised several technical objections concerning the warrant’s validity and the jurisdiction of the Nainital magistrate to take cognizance of the matter.

In this case the High Court rejected every objection raised against the warrant and dismissed the petition seeking the appellant’s release. Counsel for the appellant argued that the warrant had been issued under section 7 of the Extradition Act, a provision that did not apply to the present facts. He maintained that the entire procedure before the magistrate was illegal, lacked jurisdiction, and therefore should be set aside. Relying on section 18 of the Act, which states that nothing in Chapter III could override any treaty concerning extradition, the appellant’s counsel submitted that the treaty concluded between the British Government and the Tonk State on 28 January 1869, although formally declared by section 7 of the Indian Independence Act, had ceased to operate after 15 August 1947 but was revived by the “Stand-still Agreement” dated 8 August 1947. He asserted that this treaty exclusively governed all extradition matters between the two states and, because the treaty did not list the offences now charged against the appellant, no extradition could be demanded or ordered.

The Attorney-General, appearing for the Government, advanced three separate lines of argument. First, he said that the stand-still agreements with the various Indian princely states were temporary measures intended only to preserve the status quo on certain administrative questions pending the accession of those states to the Dominion of India, and that they were superseded by the Instruments of Accession that each ruler executed. Since Tonk had acceded on 16 August 1947, the stand-still agreement relied upon by the appellant therefore lapsed from that date. Second, he contended that the 1869 treaty no longer existed because the Tonk State had ceased to exist as a political entity; its sovereignty was extinguished when it entered into a covenant, with the consent of the Indian Government, to unite with other states to form the United State of Rajasthan. The last such covenant, which superseded earlier ones, had been signed on 30 March 1949. Third, even if the treaty were still in force as a binding contract, the Attorney-General argued that its provisions were not overridden by the application of section 7 of the Act to the present case, and that the extradition warrant issued under that section and the subsequent arrest were lawful and could not be challenged under section 491 of the Criminal Procedure Code.

The Court indicated that it was of the clear opinion that the appellant’s contention failed on this third ground, and therefore found it unnecessary to address the remaining arguments raised by the Attorney-General, especially since those issues also involved political considerations and the views of the concerned governments had not been presented.

In this case, the issues involved are not purely legal but also have a political character, and the Court had not received the views of the concerned Governments on those points. It was not disputed that the present matter fell within section 7 of the Act and that all the requirements of that provision were satisfied, except that the applicability of the section might be excluded under section 18 because of the Extradition Treaty of 1869, assuming that treaty still subsisted. Consequently, the question arose whether extradition under section 7 for an offence that is not extraditable under the treaty would constitute a derogation from the treaty, which provides for the extradition of offenders for certain specified offences described as “heinous offences” committed in the territories of the high-contracting parties. Under article 1 the Government of the Tonk State undertook to extradite any person, whether a British or a foreign subject, who commits a heinous offence in British territory. Article 2 imposed a reciprocal obligation on the British Government to extradite a Tonk subject who commits such an offence within the limits of that State. Article 3 stipulated that any person other than a Tonk subject who commits a heinous offence within the limits of the Tonk State and seeks asylum in British territory shall be apprehended and the case investigated by the court designated by the British Government. Article 4 laid down the procedure to be followed and the conditions to be fulfilled before extradition could be effected, and article 5 enumerated the offences deemed “heinous offences.” The offences charged against the appellant were not among those listed in article 5.

The appellant argued that the maxim expressio unius est exclusio alterius, as explained by McNair in The Law of Treaties, applied to the interpretation of the treaty. According to that rule, the treaty should be read as allowing extradition only for the offences specifically enumerated and prohibiting extradition by either State for any other offence, thereby implying a prohibition on extradition for offences not listed in article 5. Further, while the treaty gave each high-contracting party the right to demand extradition on a reciprocal basis, a unilateral undertaking by the Indian Government to grant extradition for an offence for which it could not claim extradition under the treaty violated the principle of reciprocity, which underlies all international extradition compacts. Such an arrangement, the appellant contended, placed the State of Tonk in a more advantageous position than the framers of the treaty had contemplated. Moreover, because the person whose surrender was demanded was an Indian subject not liable to be extradited under the treaty, his surrender under section 7 infringed upon his liberty. Accordingly, the appellant submitted that section 7, by authorising extradition of a person—especially an Indian subject—for an offence not extraditable under the treaty, effectively derogated from the treaty provisions within the meaning of section 18, and therefore its application to the present case should be excluded.

The Court observed that when a statutory provision authorised the extradition of a person—particularly an Indian subject—for an offence that was not extraditable under the treaty, that provision effectively altered the treaty’s terms within the meaning of section 18. Consequently, the application of that provision to the present case was excluded. The Court rejected the argument on the ground that it rested on a misunderstanding. It acknowledged that the list of “heinous offences” in article 5 of the treaty was exhaustive, meaning that the high-contracting parties could not, under the treaty, request extradition for offences outside that list. However, the Court did not accept the proposition that this exhaustive enumeration also prohibited the parties, by their own municipal laws, from surrendering criminals for other offences not covered by the treaty. The Court found it difficult to imagine why contracting States would in advance place such a restriction on their legislatures, a restriction that would apply both to their own subjects and to alien offenders. If any prohibition were to be implied, the Court reasoned, it should extend to both categories of persons.

The Court then referred to the commentary in Wheaton’s International Law, which noted that there was no universally recognised rule that extradition could occur only under a treaty, because some countries did grant extradition without a treaty, as discussed in the fourth edition, sections 116(a) to (d). The Court explained that the constitutional doctrine in England held that the Crown concluded extradition treaties with foreign States, but those treaties could be given effect only by an Act of Parliament, as explained in section 116(b). Accordingly, the English Extradition Acts were made applicable by Orders in Council for each State that entered into a treaty with the Crown, and the Acts were applied only to the extent that they were consistent with the treaty’s terms and conditions. Under this system, when the parties expressly provided that their own subjects would not be delivered up—such as in the treaty between England and Switzerland—the power to arrest and surrender did not exist, a point illustrated by the case of Regina v. Wilson. Cockburn C.J., delivering the judgment in that case, described this situation as a “serious blot” on the British extradition system. The Royal Commission on Extradition, chaired by Cockburn, later recommended that reciprocity should no longer depend on the offender’s nationality, arguing that a person who had broken the laws of a foreign country should be tried there, because it was more convenient to try crimes in the place where they were committed. The Commission emphasized that it was far easier to transport the criminal to the place of the offence than to bring all witnesses and evidence to another country for trial. The Court indicated that considerations of this nature had evidently influenced the enactment of the Indian legislation that authorised the surrender of criminals, including Indian subjects, for a wide range of offences, while preserving the treaty obligations under section 18.

The Indian Legislature enacted a law that permits the surrender of criminals, including Indian nationals, for a broad range of offences, and it empowers the Governor-General in Council to enlarge that list through a Gazette notification that may apply to all States or to specific States as required. This statutory power of surrender, however, cannot increase the obligations of a foreign party that is bound by an extradition treaty, a limitation expressly set out in section eighteen of the Act. At the same time, the Court observed that the Act does not diminish any treaty when it enables the Indian Government to extend extradition to additional offences, because such an extension actually expands, rather than restricts, the other party’s right to demand the surrender of offenders. Moreover, the legislation does not impair the status of an Indian subject under the treaty of 1869, since that treaty did not create any entitlement for the subjects of either country to be exempt from surrender except for “heinous offences,” a point underscored by the earlier decision in Wilson’s case where the contractual exception for the contracting States’ subjects was interpreted not as a grant of a new right but as a limitation imposed by the Order in Council applying the Extradition Act, 1870, to Switzerland. Consequently, it is inaccurate to claim that providing for extradition of additional offences by the Act infringes upon the rights of Indian citizens under the treaty or alters its provisions. The Court therefore concluded that the arrest and surrender of the appellant under section seven of the Act remain lawful notwithstanding the continued existence of the 1869 treaty, and accordingly the appeal was dismissed. Justice Fazl Ali noted that he had reviewed the judgments authored by his colleagues Sastri and Mukherjea, who reached the same conclusion for differing reasons, and expressed concurrence with the order dismissing the appeal. Justice Mahajan affirmed agreement with Justice Mukherjea’s forthcoming judgment and, for the reasons articulated therein, also supported dismissal of the appeal. Justice Mukherjea, delivering the opinion of the Court, explained that the appeal arose on special leave and challenged a judgment of Justice Harish Chandra of the Allahabad High Court dated 11 November 1949, which had rejected the appellant’s application under sections 491 and 561-A of the Criminal Procedure Code; the material facts underpinning the appeal were undisputed and were summarized briefly for the record.

In this case the appellant, Dr. Ram Babu Saksena, a resident of the United Provinces, was a member of the Executive Civil Service of that province and, over a career that spanned SO years, held a number of important positions both within the province and elsewhere. In January 1948 he was appointed Administrator of the Tonk State, at a time when the State was embroiled in a succession dispute between two rival claimants to the rulership. The dispute was finally resolved on 11 February 1948 when Ismail Ali Khan was recognized as the Nawab, or Ruling Prince, of the State; subsequently the appellant was appointed Dewan and Vice-President of the State Council, the President of which was the Nawab. In April 1948 the Tonk State, together with several other princely States in Rajputana, merged to form the United State of Rajasthan, and at that point the appellant assumed the office of Chief Executive Officer of the Rajasthan Government. Toward the end of July 1948 he was given an additional special appointment under the Rajasthan Government, but shortly thereafter he took leave and went to Naini Tal, where he has remained resident. On 23 May 1949 he was arrested at Naini Tal pursuant to a warrant issued under section 7 of the Indian Extradition Act, 1903, by Shri V.K.B. Pillai, the Regional Commissioner and Political Agent of the United State of Rajasthan. The warrant, dated 8 May 1949, was addressed to the District Magistrate of Naini Tal and directed that Dr. Saksena be taken into custody and removed to Rajasthan, to be handed over to the District Magistrate of Tonk for inquiry into certain alleged offences against the laws of that State. Following his arrest the appellant was released on bail in accordance with the terms of the warrant and was ordered to appear before the District Magistrate of Tonk on 7 June 1949. The substantive allegations against him are that, while acting as Dewan of the Tonk State and Vice-President of the State Council, the Nawab, who was urgently needing funds to meet personal demands, asked Dr. Saksena to obtain for the Nawab’s personal use a sum of Rs 14 lakhs from the State Treasury. Dr. Saksena allegedly agreed to assist on the condition that the Nawab would pay him Rs 3 lakhs from that amount as his share. Through his efforts the appellant is said to have induced the State Ministry to disburse the full Rs 14 lakhs to the Nawab in several instalments. The first instalment, exceeding Rs 2 ½ lakhs, was paid on 31 March 1948, and a further instalment of Rs 5 lakhs was paid on 21 April 1948. On that latter date the Nawab purportedly paid Dr. Saksena Rs 1,50,000, which represented only half of the amount that had been promised to the appellant. A few days later Dr. Saksena is alleged to have pressed the Nawab for the balance of his agreed share and to have threatened the Nawab that failure to pay would place the latter in serious difficulty, jeopardizing his position as Ruling Prince and exposing him to grave charges.

In the facts that were recorded, Dr. Saksena threatened the Nawab after the Nawab had paid only half of the promised sum, telling him that if the remaining balance was not paid the Nawab would encounter serious difficulties because his position as a ruling prince was insecure and serious charges were pending against him. These threats and misrepresentations caused the Nawab to pay the outstanding Rs 1,50,000 in two further instalments. The Regional Commissioner became aware of the matter in November 1948, summoned Dr. Saksena for an interview, and was able to obtain from him the full Rs 3 lakhs that the Nawab had paid. Based on these events, Dr. Saksena was charged with offences under sections 383 and 420 of the Indian Penal Code.

On 3 June 1949 Dr. Saksena filed an application in the High Court of Allahabad under sections 491 and 561-A of the Criminal Procedure Code, asserting that he was being detained illegally and without authority under a warrant issued by the Regional Commissioner of Rajputana on 8 May 1949. The application challenged the legality of the warrant and the arrest on several grounds. First, it was contended that the Nawab had falsely implicated Dr. Saksena out of personal enmity, and that the allegations were entirely untrue. Second, it was argued that the District Magistrate of Naini Tal lacked jurisdiction to take cognizance of the case without prior sanction of the Uttar Pradesh Government under section 197 of the Criminal Procedure Code, and that a further sanction from the Rajpramukh of the United State of Rajasthan was also required before any proceedings could be instituted. The third and principal contention was that, because the alleged offences were said to have been committed in the State of Tonk, the case should be governed by the Extradition Treaty concluded between the British Government and the Tonk State on 28 January 1869. The petitioners pointed out that neither “extortion” nor “cheating” appeared in the list of offences eligible for extradition under that treaty, and therefore the warrant of arrest issued under section 7 of the Extradition Act was completely illegal and unauthorised. Although the offences were listed in the Schedule to the Indian Extradition Act of 1903, it was submitted that section 18 of the Extradition Act expressly rendered the Act inapplicable where its provisions derogated from those of a treaty. Finally, the application alleged that the extradition warrant was a mala fide step orchestrated by the Nawab of Tonk with the assistance of the Regional Commissioner of Rajasthan for ulterior motives, constituting a fraud upon the statute and an abuse of the processes of law. The application was heard by Justice Harish Chandra sitting singly, and a detailed judgment dated 11 November 1949 was rendered, addressing each of the points raised in the petition.

In this case the learned Judge dismissed the petitioner's request because the High Court had not issued a certificate under section 205(1) of the Government of India Act 1935, and the present appeal reached this Court solely on the basis of special leave that had been granted. Counsel appearing on behalf of the appellant, Sir Alladi Krishnaswami Aiyar, carefully refrained from raising before this Court any points that had not already been argued before the lower court. He contended, in essence, that the right to extradition in the present matter should be governed exclusively by the Extradition Treaty concluded between the Tonk State and the British Government on 28 January 1869, a treaty that was later amended by a supplementary treaty in 1887. He further argued that the merger of the Tonk State into the United State of Rajasthan had not terminated or nullified that treaty, and that the High Court’s decision on this issue was therefore mistaken. According to the terms of the treaty, offences such as “extortion” and “cheating,” which are the charges against the appellant, are expressly excluded from the scope of extradition, making the arrest warrant issued by the Political Agent of Rajasthan illegal and beyond the authority of that officer. Sir Alladi acknowledged that, if section 7 of the Indian Extradition Act 1903 were held applicable to the facts, the same warrant could not be challenged as invalid; however, he maintained that section 18 of the Extradition Act contains an explicit reservation that, whenever treaty rights exist, any provision of Chapter III of the Act that conflicts with the treaty must give way to the treaty. To assess this argument, it is useful to examine certain provisions of the Indian Extradition Act 1903 together with the relevant clauses of the Tonk-British Extradition Treaty. Chapter III of the Act governs the surrender of fugitive criminals when the requesting state is not a foreign state, and it opens with section 7, which reads: “(1) Where an extradition offence has been committed or is supposed to have been committed by a person, not being a European British subject, in the territories of any State not being a foreign State, and such person escapes into or is in British India, and the Political Agent in or for such State issues a warrant, addressed to the District Magistrate of any district in which such person is believed to be, (or if such person is believed to be in any Presidency town to the Chief Presidency Magistrate of such town), for his arrest and delivery at a place and to a person or authority indicated in the warrant such Magistrate shall act in pursuance of such warrant and may give directions accordingly.” The expression “extradition offence” is defined in section 2(b) as any offence listed in the First Schedule of the Act, which includes offences punishable under sections 383 and 420 of the Indian Penal Code. Consequently, all the conditions laid down in section 7 appear to be satisfied in the present case: the warrant was issued by the Political Agent of a state that is not classified as a “foreign State” under the Act, and the offences with which the appellant is charged are expressly listed as extradition offences in Schedule I. Sir Alladi’s position, therefore, is that despite the apparent satisfaction of the statutory criteria, the express reservation in section 18 requires the treaty to prevail over the provisions of Chapter III, rendering the warrant ultra vires.

The Court observed that, under section 7 of the Extradition Act, a Magistrate of a Presidency town who receives a warrant issued by the Political Agent of a State—where that State is not classified as a “foreign State” by the Act—must act in accordance with the warrant and may issue directions for the arrest and delivery of the person named in the warrant to the place and authority specified therein. The term “extradition offence” is defined in section 2(b) as any offence described in the First Schedule to the Act. The First Schedule lists offences by reference to specific sections of the Indian Penal Code, and it includes offences punishable under sections 383 and 420 of that Code. Consequently, the Court found that, on a prima facie basis, all the conditions set out in section 7 of the Extradition Act are satisfied in the present matter because the warrant was issued by the Political Agent of a State that does not fall within the definition of “foreign State,” and the offences for which the appellant is charged—cheating and extortion—are designated as “extradition offences” in Schedule I. Sir Alladi contended that section 7, which lies in Chapter III of the Extradition Act, must be governed by section 18, which provides that nothing in that chapter shall derogate from the provisions of any treaty on the extradition of offenders, that the procedure laid down in any such treaty must be followed where it applies, and that the Act’s provisions shall be modified accordingly. Turning to the Extradition Treaty between the Tonk State and the British Government, the Court noted that Article 1 of the Treaty provides for extradition when a British subject or a foreign subject commits a “heinous” offence in British territory and then seeks refuge in the Tonk State. Article 2 deals with a Tonk subject who commits a “heinous” offence within the Tonk State and seeks asylum in British territory, while Article 3 concerns a non-Tonk person who commits a “heinous” offence in the Tonk State and seeks refuge in British territory. Article 4 sets out the conditions and procedure for extradition in each of these situations, and Article 5 enumerates the offences that qualify as “heinous.” It is undisputed that “cheating” and “extortion” do not appear in that list. The controversy therefore revolves around whether, in light of the Treaty’s provisions, extradition may lawfully be sought or demanded for offences under sections 383 and 420 of the Indian Penal Code—offences that are included in Schedule I of the Extradition Act but are absent from Article 5 of the Treaty. The Court posed the question of whether the provisions of the Extradition Act may be said to derogate from the Treaty in this respect, thereby allowing the Treaty’s terms to override the statutory scheme.

In this case the Court examined whether the provisions of the Indian Extradition Act could be set aside because they were said to “derogate” from the treaty that had been concluded between the Tonk State and the British Government, and whether, if such derogation occurred, the treaty would prevail over the statute as contemplated in section 18 of the Extradition Act. The learned Attorney-General, appearing for the Government of India, advanced a two-fold defence against the contention raised by Sir Alladi. First, he submitted that section 18 of the Indian Extradition Act could not apply because the treaty on which the appellant relied no longer existed and could not be enforced at the present time. Second, he argued that even assuming the treaty remained in force, its terms did not forbid extradition for offences that were not described as “heinous” offences in article 5 of the treaty. Counsel further explained that the verb “to derogate” means “to detract” or “to take away” and therefore the inclusion in the Schedule to the Extradition Act of certain offences that are absent from the treaty’s list of heinous offences could not be said to have taken away any right granted by the treaty. Both of these arguments were fully pleaded by the parties, and the Court observed that a decision adverse to the appellant on either point would inevitably lead to the failure of the appeal. Regarding the first point, counsel for the appellant, Mr Setalvad, highlighted a series of political changes that had affected the Tonk State since the treaty was signed in 1869. At that time Tonk was a native princely state with a separate political existence, and the treaty was intended solely to regulate extradition matters between Tonk and the British Government. Although the treaty was modified in 1887, the modifications concerned procedural matters that were not material to the present dispute. The decisive political transformation occurred on 15 August 1947, when India became an independent Dominion. Section 7 of the Indian Independence Act stipulated that, as of the appointed day, the suzerainty of His Majesty over the Indian States would lapse, and with it all treaties and agreements then existing between His Majesty and the rulers of the Indian States. Consequently, the Court held that the extradition treaty between Tonk and the British Government must be regarded as having ceased to operate from 15 August 1947. If that were the case, there would be no treaty provision upon which section 18 of the Indian Extradition Act could depend. Nevertheless, the Court noted that a Standstill Agreement had subsequently been entered into by the Indian Dominion and the Indian States, a fact that required further consideration.

In the arrangement that the Indian Dominion concluded with the Indian States, the first article was worded to the effect that until new agreements were negotiated, all existing agreements and administrative arrangements concerning matters of common interest between the Crown and any Indian State would, insofar as appropriate, continue as arrangements between the Dominion of India, or the relevant part thereof, and the State. The article further specified that, without limiting the generality of this provision, the matters referred to would include those listed in the Schedule to the agreement. The Schedule expressly listed “extradition” as one of the subjects to which the Standstill Agreement applied. This agreement was intended to be temporary, and counsel for the petitioner argued that because there was no formal treaty in the strict sense but only this provisional arrangement, section 18 of the Extradition Act, which mentions a treaty, could not be invoked. While acknowledging that this contention had some initial merit, the Court observed that adopting such a narrow view would be inappropriate. For the purpose of the present case, the Court assumed that, under the Standstill Agreement, the provisions of the Treaty of 1869 continued to govern the extradition of criminals between the Tonk State and the Indian Dominion until a new agreement was reached. Although the Standstill Agreement was meant to become effective after the Dominion was established, the instrument was actually signed on 8 August 1947. Subsequently, on 16 August 1947, Tonk acceded to the Dominion of India, and the Instrument of Accession contained a clause stating that the ruler accepted that, with respect to matters specified in the Schedule, the Dominion Legislature would have the authority to enact laws for the State. Among the matters listed in the Schedule was “extradition including the surrender of criminals and accused persons to parts of His Majesty’s Dominion outside India.” Accordingly, the State relinquished its right to legislate on extradition in favour of the Dominion Legislature after the accession date. The Court noted that it was not clear whether the existing Extradition Treaty was automatically terminated by the Instrument of Accession. Nonetheless, the Dominion possessed the power to enact any legislation it deemed appropriate concerning extradition between Tonk and any other State, whether Indian or foreign. No such legislation was enacted by the Indian Legislature, except that, very recently, an Adaptation Order had extended the Extradition Act of 1903 to the states classified under Group B of the Indian Constitution, a category that includes Rajasthan. The Court also observed that the Extradition Act itself, as applied to the United State of Rajasthan, contained an explicit provision concerning the preservation of treaty rights.

Section 18 of the Extradition Act, which was made applicable to the United State of Rajasthan, contains a provision that preserves rights that arise from existing treaties. It is somewhat unusual that an extradition treaty would continue to be in force after the State of Tonk had formally acceded to India, yet the material before the Court does not demonstrate that the treaty had been expressly repealed or superseded by any legislation of the Indian Legislature. Consequently, the Court could not conclude that the treaty had been definitively abrogated, and therefore the treaty’s existence remained a question for determination.

In April 1948, the rulers of nine princely states, including Tonk, entered into a Covenant that provided for the integration of their territories into a single political entity called the United State of Rajasthan, an arrangement that was approved by the Dominion of India. On 12 May 1949, the state of Mewar also joined the Covenant, thereby expanding the new union to encompass the territories of ten former princely states. The Covenant of Merger stipulated that the signatory states would unite under a common executive, legislature, and judiciary, and that their rulers would become members of a Council of Rulers headed by a Raj Pramukh. Article VI of the Covenant expressly required each ruler, no later than 1 May 1948, to transfer the administration of his state to the Raj Pramukh, after which all powers, duties, assets, and liabilities of the individual states would vest in the United State of Rajasthan and could be exercised only in accordance with the Covenant or the Constitution to be framed thereunder. The Court then considered how the merger affected the existing extradition treaty between the former Tonk State and the British Government. International legal doctrine holds that when a state ceases to exist because it is absorbed into another state—whether by voluntary agreement, conquest, or annexation—its treaties ordinarily terminate automatically, a view supported by authorities such as Hyde on International Law (vol. III, p. 1529). The principle is illustrated by the dissolution of Hanover’s treaties after its incorporation into Prussia, the extinguishment of the Republic of Texas’s treaties upon its admission to the United States, and the similar outcome when Korea merged into Japan. While some scholars debate whether treaties concerning commerce or extradition survive such mergers, the predominant opinion is that they do not, and the Court noted that the present case did not involve a simple absorption that would conclusively end the prior state’s treaty capacities.

In the judgment, the Court observed that when Hanover was incorporated into the Prussian Kingdom, the treaties previously concluded by Hanover were terminated. It likewise noted that the admission of Texas into the United States by joint resolution resulted in the extinction of the treaties of the independent Republic of Texas. The Court further mentioned that a similar outcome occurred when Korea merged with Japan. Relying on the opinion of Oppenheim, which had been cited by Sir Alladi, the Court stated that ordinarily no succession of rights and duties took place in such situations, because both political and personal treaties required the existence of a contracting State; consequently, those treaties were entirely extinguished. The Court acknowledged that the question of whether succession occurred in treaties concerning commerce or extradition remained a matter of debate, but it pointed out that the majority of commentators held that such treaties did not survive a merger or annexation.

The Court then explained that the observations quoted above did not fit the present case. It clarified that there had been no absorption of one State by another that would have ended the life of the former State and erased its personality. Instead, several States had voluntarily united and integrated their territories to create a larger composite State, the United State of Rajasthan, of which each covenanting State became a component part. The Court described that the new arrangement provided a single executive, a single legislature and a single judiciary, while the Council of Rulers was to be composed of the rulers of all the covenanting States. Accordingly, it could not be said that the covenanting States had entirely lost their personality. For purposes such as succession of rulership and the counting of votes based on population, the Covenant of Merger recognized a quasi-separation among the territories of the different States.

Nevertheless, the Court emphasized that from the date of the merger the inhabitants of all the former States became subjects of the United State of Rajasthan and could no longer be described as subjects of any particular State. There was no longer any “subject of the Tonk State” existing, and the Ruler of Tonk could not independently exercise sovereignty or control over Tonk territory. Sovereign power was exercised by a single Government, although the various Rulers might have a voice in it. In these altered circumstances, the Court concluded that the Extradition Treaty of 1869 had become completely incapable of being performed. The Tonk State, which was a contracting party to the treaty, no longer possessed independent authority or sovereign rights over its territory and therefore could neither make nor demand extradition.

The Court observed that when a State loses its independent power of action over the subject-matter of a treaty that it had previously concluded, that treaty must necessarily lapse (1). Accordingly, the Court held that it could not be said that the sovereignty of the Tonk State in respect of extradition was now vested in the United State of Rajasthan. The Court noted that the authority to deal with extradition matters had already been surrendered by the Tonk State in favour of the Dominion Government through the Instrument of Accession. Even assuming, for the sake of argument, that those treaty rights could devolve upon the United State of Rajasthan by virtue of article 6 of the Covenant of Merger, the Court expressed the view that the United State of Rajasthan would be totally incapable of giving effect to the terms of the treaty. The Court reiterated that, at present, there could be no such thing as a “subject of the Tonk State,” and therefore article 2 of the Treaty, which provides for the extradition of Tonk subjects accused of committing heinous offences within Tonk territory and seeking asylum elsewhere, would be wholly infructuous. Consequently, the United State of Rajasthan could not demand extradition on the basis of that article, and, since reciprocity – the essential element of any extradition agreement – was absent, the Treaty must be deemed void and inoperative. The Court then referred to the decision in Terlinden v. Ames (2), which had been relied upon by counsel for the petitioner, and stated that the decision actually supports the Court’s conclusion. In that case the question was whether an extradition treaty between Prussia and the United States of America, concluded in 1852, could still be given effect after Prussia had been incorporated into the German Empire. The Court in Terlinden answered affirmatively, noting that the Constitution of the German Empire left sufficient independent power and sovereignty to the constituent states to enable them to act upon such treaties. Chief Justice Fuller, delivering the opinion of the Court, observed that where sovereignty with respect to the execution of treaties is not extinguished and the power to execute remains unimpaired, outstanding treaties cannot be regarded as void. The Court held that this is the proper test, and, since the power of the Tonk State to execute the 1869 extradition treaty was altogether lost after the Covenant of Merger, the treaty must be regarded as void. The Court further examined the other case cited by counsel, Lazard Brothers v. Midland Bank Ltd. (1), and found that it had no bearing on the issue. That case merely affirmed the well-accepted principle of international law that a change in the form of government of a contracting State does not terminate its treaties; for example, treaties entered into by Czarist Russia were given effect after the Revolution once the new government was recognised as a person in international law. On the basis of this analysis, the Court concluded that the extradition treaty concluded in 1869 between the Tonk State and the British Government is

The Court observed that, because the Tonk State had merged into the United State of Rajasthan, the 1869 extradition treaty could not be given effect in the present day. Consequently, the Court noted that no treaty rights survived the merger, which meant that section 18 of the Indian Extradition Act did not apply to the present dispute. The Court further found that the procedural requirements imposed by section 7 of the Act had already been fulfilled, and therefore there was no substantive basis on which the Court could intervene in the matter. In light of the decision on this first issue, the Court held that the second issue raised by the parties did not require any further determination, and accordingly the Court declined to express any opinion on that point. As a result of these findings, the Court concluded that the appeal could not succeed and ordered that it be dismissed. Justice DAS J expressed substantial agreement with the reasoning set out in the judgment recently delivered by the learned brother Mukherjea, and indicated concurrence in dismissing the application. Accordingly, the appeal was dismissed. The record shows that the appellant was represented by an agent, while the respondent was represented by another agent, identified respectively as Rajinder Narain and P. A. Mehta.