Abu Salem's Life Sentences Stand; 25-Year Cap From Portugal Assurance Does Not Create Fixed Term

A Supreme Court division bench held that India's sovereign assurance to Portugal capped Abu Salem's detention at 25 years but did not convert his life sentences into a fixed-term sentence, rejecting his bid for immediate release and the double-counting of custody periods.

The Supreme Court on 10 September 2026 dismissed the appeal of Abu Salem Abdul Qayoom Ansari, a convict serving two concurrent life sentences under the Terrorist and Disruptive Activities (Prevention) Act, 1987, who had argued that he had already completed 25 years of imprisonment when jail-earned remission was added to his actual custody. A bench of Justice Vikram Nath and Justice Sandeep Mehta upheld the Bombay High Court's dismissal of his habeas corpus petition, finding that his computation double-counted overlapping periods of incarceration and that the sovereign assurance extended by the Union Government to Portugal fixed only the outer limit of his detention — it did not alter the nature or duration of the life sentences awarded by the TADA courts.

How Abu Salem Came to Be Tried in India

Abu Salem had been in Portugal when the Union Government sought his extradition. The extradition was conditional. On 17 December 2002, Deputy Prime Minister L.K. Advani conveyed a solemn sovereign assurance to Portugal that, upon extradition, Abu Salem would neither face the death penalty nor imprisonment exceeding 25 years. The Ministry of Justice, Portugal, accepted this assurance and, on 29 March 2003, permitted his extradition. He was handed to Indian authorities on 10 November 2005 and arrived in India on 11 November 2005.

Two separate prosecutions followed. In TADA Case No. 1 of 2006, the Special Court at Bombay convicted him on 25 February 2015 and sentenced him to rigorous life imprisonment. In BBC Case No. 1 of 1993, the TADA Court convicted him on 7 September 2017 and again sentenced him to rigorous life imprisonment, directing that the second sentence run concurrently with the first.

Abu Salem challenged both convictions before the Supreme Court. In its judgment of 11 July 2022, the Court disposed of those appeals. It declined to disturb the life sentences but took note of the sovereign assurance. It fixed 12 October 2005 as the date from which his detention would be computed and directed that, upon completion of 25 years from that date, the Central Government would be bound to advise the President under Article 72 of the Constitution or exercise powers under Sections 432 and 433 of the Code of Criminal Procedure, 1973, for remission or commutation.

The Habeas Corpus Petition and the Bombay High Court

Abu Salem then moved Writ Petition No. 1586 of 2025 before the Bombay High Court seeking writs of habeas corpus and mandamus. His case was that, after accounting for undertrial custody, post-conviction custody, and jail-earned remission of 3 years, 6 months and 2 days, he had already served more than 25 years as of 30 June 2026 and was entitled to immediate release.

The High Court dismissed the petition on 15 April 2026. It found that Abu Salem had failed to demonstrate that his continued detention was unauthorised or illegal and that the 25-year period set by the Supreme Court's 2022 judgment had not in fact been completed.

The Flawed Computation: Double-Counting Concurrent Sentences

Before the Supreme Court, senior counsel for Abu Salem broke his custody into three components. First, undertrial custody from 11 November 2005 (date of arrest on extradition) to 7 September 2017 (the later conviction in BBC Case No. 1 of 1993): said to be 11 years, 9 months and 26 days. Second, post-conviction custody from 25 February 2015 (the earlier conviction in TADA Case No. 1 of 2006) to 30 June 2026: said to be 11 years, 4 months and 4 days. Third, jail-earned remission of 3 years, 6 months and 2 days.

The Court identified the core defect immediately. The period from 25 February 2015 to 7 September 2017 — over two years — appeared in both calculations. For the undertrial tally, Abu Salem counted those two-plus years up to the later conviction. For the post-conviction tally, he counted those same years from the earlier conviction date. The Court held that this produced an impermissible overlap.

The fact that the two life sentences were ordered to run concurrently was decisive on this point. The Court held that concurrent sentences operate simultaneously, so the same period of incarceration cannot be counted twice — once as undertrial custody for one case and again as post-conviction custody for the other. The distinction between “undertrial custody” and “post-conviction custody” cannot justify such overlapping computation.

The Court also noted the gravity of the offences. The crimes for which Abu Salem was extradited were not acts against individual victims alone; they were calculated to destabilise India and targeted Mumbai as the country's financial capital. This context was relevant to how the sovereign assurance should be read.

The Sovereign Assurance: An Outer Limit, Not a Sentence

The second and more fundamental question was whether the sovereign assurance itself converted the life sentences into a fixed 25-year term, which would have made jail-earned remission deductible.

The Court rejected this reasoning on constitutional grounds rooted in the separation of powers. The sovereign assurance was an act of the Executive in the context of extradition. The sentences were imposed by the TADA Courts in exercise of judicial power. The prescription of punishment is a legislative and judicial function; the Executive exercises only such powers of remission, commutation or release as the law confers upon it.

The 2022 judgment of the Supreme Court had not converted the life sentences into 25-year terms. It had only recognised the assurance and directed the Executive to act upon it once the 25-year threshold was crossed. The Court in the present appeal quoted the operative conclusion from the 2022 judgment to underscore the point: the Central Government was “bound to advise the President of India for exercise of his powers under Article 72 of the Constitution, and to release the appellant in terms of the national commitment” on completion of 25 years. That is a direction to the Executive to consider exercise of its powers — not a judicial commutation of the sentence.

Since Abu Salem's sentence remained one of life imprisonment, jail-earned remission — which is calculated against a fixed term — could not be added to advance his release date. To permit that course would give him a benefit over and above what already flows from the sovereign assurance, against the backdrop of a life sentence that the courts had declined to disturb.

The State's Own Affidavit and the Prison Manual Calculation

Abu Salem also relied on an affidavit dated 5 May 2025 filed by the Additional Director General of Police and Inspector General of Prisons of Maharashtra before the High Court. He argued that the affidavit acknowledged earned remission of 3 years, 6 months and 2 days.

The Court read the same affidavit against him. The affidavit expressly stated that the computation sought by Abu Salem would confer a twofold benefit impermissible in law. More pointedly, paragraph 8 of the affidavit contained a calculation chart — prepared under Rule 25(iii) of Chapter XXXIX of the Maharashtra Prison Manual, 1979, which places Abu Salem in the category of prisoners sentenced to 50 years — that projected his probable date of release as 31 January 2046 after accounting for set-off and remission. The Court held that the jail-earned remission recorded in that chart was computed in the context of the life sentence under the Prison Manual category and could not be re-purposed to advance release under the sovereign assurance framework.

Precedents Relied Upon by the Appellant Distinguished

Counsel for Abu Salem placed reliance on the Full Bench decision of the Bombay High Court in Yovehel v. State of Maharashtra (2020 SCC OnLine Bom 1318) and the Supreme Court decisions in Union of India v. V. Sriharan @ Murugan (2016) 7 SCC 1 and Swamy Shraddananda v. State of Karnataka (2008) 13 SCC 767, for the proposition that jail-earned remission is to be reckoned and added to the period of actual incarceration.

The Court declined to apply those decisions. None of them involved a sovereign assurance given by the Executive as a condition of extradition. The principle governing remission computation in those cases arose from different factual and statutory settings. The law of precedent operates on the ratio decidendi of a judgment read against its material facts; a precedent cannot be applied divorced from the factual and statutory context in which it was rendered. The three cases therefore did not advance Abu Salem's argument.

Outcome

The Supreme Court found no infirmity in the Bombay High Court's judgment of 15 April 2026. The appeal was dismissed in limine. Pending applications were disposed of.

The Court's order leaves Abu Salem serving the two concurrent life sentences as affirmed by the TADA Courts and the Supreme Court. The 2022 direction that the Central Government must, within one month of Abu Salem completing 25 years of detention (computed from 12 October 2005), advise the President under Article 72 or exercise powers under Sections 432 and 433 of the CrPC remains operative on its own terms.