Read Time: 08 minutes

ISIS recruit Soniya Sebastian's father has approached the Supreme Court seeking extradition of his daughter and grand daughter, who are currently detained in a prison at Kabul, Afghanistan.

Brief Facts of the Case

The petitioner approached the Top Court seeking directions against the Union to take necessary action to Extradite his daughter, Sonia Sebastian (Detenue 1) and grand-daughter, Sara, a minor aged 7 years (Detenue 2) who are presently detained in a prison at Kabul, Afghanistan.

The allegation is that the husband of detenue 1, with other co accused(s) hatched occupancy to propagate terrorist organisation ISIS in waging war against Asiatic Nations. Following this, detenue 1 & 2, with an intention to join Islamic organisation at Afghanistan, left India on July 30, 2016.

The INTERPOL issued a Red Corner Notice against Detenue 1 on March 22, 2017.

Husband of Detenue 1 died in war against the Afghan Forces and both the detenues had to surrender thereafter.

In a documentary, uploaded on YouTube as “Khorasan Files: The Journey of Indian Islamic State”, it was revealed that Detenue repented her decision to join ISIS and wanted to return back to India and face trial before the Indian Court.

By Extradition Treaty signed on November 24^th, 2019, India and Afghanistan shares an obligation to extradite any person convicted or accused of an offence committed within the territory of one state but is found in the territory of another state.

It is the contention of the petitioner that after the declaration of withdrawal of American Forces from Afghan Soil, there are apprehensions of Taliban and Islamic Republic of Afghanistan to enter into a war, in which the foreign terrorists fighters like the Detenue 1, could be hanged till death and therefore steps may be taken by the Union, under the Extradition Treaty to bring the two detenues back.

[Detenue 1 has been arrayed as Accused 3 by the National Investigation agency in FIR No Rc 02/2016/NIA/KOC for u/s 120B r/w 125 of IPC and Sections 38, 39 and 40 Unlawful Activities (Prevention Act 1967)]

Grounds inter-alia preferred by the Petitioner

• Since in the interview the first detenue has openly committed not to be a part of any Terrorist Group, and is ready to face trial in the Indian Soil, a lenient approach may be taken by the Union of India while dealing with the entire issue.
• India having ratified the UDHR, ICCPR is bound to ensure that it shall not deny the entry of its nationals solely based on the reason of protection of national security.
• Because the location of children and the women are traceable and the conflict has almost ended, respondents ought to have initiate steps for repatriation of the detenues and most importantly the 2nd detenue who cannot be tried even as per the laws of Afghanistan.

Questions of law raised by the Petitioner

A) Whether non-extension of the Consular assistance and diplomatic protection to the 1st and 2nd detenue constitutes violation of fundamental rights under Part III of the Constitution, as also various other obligations under Vienna Convention on Diplomatic Relations, 1961 and the Vienna Convention on Consular Relations, 1963?

B) Whether the act of deprivation of Extradition as Counter-terrorism method is violative of Article 21 of the Constitution of India, 1950?

C) Whether State is bound to exercise its parens patrie jurisdiction, by seeking extradition of the 2nd detenue, especially when the child should be seen as victim of wrongful actions of the Negligent parents?

D) Whether exercise of such jurisdiction is in conformity with the principles under Part III of the Constitution of India and International obligations under Child Rights law and Human rights law?

Prayer sought by the Petitioner

• To declare that the act of non-processing of steps for facilitating Extradition of the Detenues by the Respondents, is illegal and Unconstitutional.
• Direct the respondents to initiate steps to extend diplomatic protection or consular assistance to the detenues.

Petition filed by Advocate Renjith B Marar and Lakshmi N Kaimal.

Case Title: VJ Sebastian v. Union Of India