Written by: Ananthakrishanan G
6 min readNew DelhiJan 4, 2024 07:53 PM IST
First published on: Jan 4, 2024 at 11:27 AM IST
The Supreme Court on Thursday rejected Indian national Nikhil Gupta’s plea for its intervention in his detention in the Czech Republic over an alleged failed plot to kill US-based Khalistani separatist Gurpatwant Singh Pannun, a designated terrorist under the Unlawful Activities Prevention Act (UAPA).
Gupta, who is lodged in a prison in Prague, has been accused by the US of plotting to kill Pannun at the behest of an Indian intelligence official. He was arrested in June last year and Czech courts are considering his extradition, as requested by the US.
While presiding over a two-judge bench, Justice Sanjiv Khanna said it is a “sensitive” matter and that it is for the “government to take action”. “…This is a sensitive matter for the government also. It has its own ramifications. We will not in this court make any statement. It is for the government to do what they want,” Justice Sanjiv Khanna said.
The bench, also comprising Justice Dipankar Datta, said in the order, “We have examined the prayers made in the present writ petition. Keeping in view the principles of public international law and sovereignty and comity of courts, we don’t think any of the prayers can be granted”.
The court also noted that the petition by family members of Gupta said that he had already been granted consular access.
The plea filed through Advocate Rohini Musa said Gupta was a law-abiding citizen hailing from a humble background, and was “seeking relief in a matter fraught with complexities”.
In his plea, Gupta said the genesis of his predicament dates back to June 30, 2023, when he was illegally detained at Prague Airport in the Czech Republic. From the outset, he added, the circumstances surrounding his arrest were marked by irregularities, with no formal arrest warrant presented, and the apprehension executed by self-claimed US agents rather than local Czech authorities. Gupta also said he was a “hapless victim caught in the diplomatic crossfire” between India and the US.
Taking up the plea Wednesday, Justice Khanna said, “…I don’t think we can grant you any relief. Consular access is the only thing he is entitled to and he has already got that”.
However, Senior Advocate C A Sundaram, appearing for Nikhil Gupta, said it was only once and about three months ago. Subsequently, there has been an indictment and order to extradite him, the senior counsel argued. Sundaram said he is not getting into merits and added that he is now in solitary confinement.
But the court said, “We are not concerned with all that. Don’t argue something which we will not go and examine. This is a matter relating to public international law. We have to respect the sovereignty and jurisdiction of the other courts”.
“The only thing under the Vienna convention you are entitled to is consular access. In case consular access is denied or is not acceptable, you can approach the authorities. That’s all. Your list of dates says consular access was granted twice,” said the court.
Sundaram said Gupta as a citizen is only seeking assistance. “I have sought assistance from the Indian Embassy, of the Ministry of External Affairs. I have not received a response from any of them. I am saying as an Indian citizen, wherever I may be, I have a right to seek from my state assistance to enable me to defend myself in whatever manner I can,” Gupta said.
On Gupta’s behalf, Sundaram added, “Why I am seeking assistance in this matter from Indian authorities is because there has been a subsequent indictment superseding the earlier one which indictment is going completely on the basis that I have acted at the behest and authorities concerned with the Union of India”.
But the bench said it is not going to get into matters pending before a foreign court.
On his part, Gupta said, “I’m not saying that. I’m saying that at least to defend myself against this, I need some cooperation from the Ministry”.
Justice Khanna said “This is a sensitive matter. Whether they want to deal with it or not, it is for them to decide” and added that he had been given consular access.
Sundaram said Gupta was transferred out of where he was initially lodged and was not being given consular access now. It was given one day before the indictment order and extradition order. “I have a right to file an appeal in the country against it for which I need consular assistance”.
The senior counsel said, “I don’t even have access to an interpreter, or translator. I am seeking the government to assist me in those regards. I’m asking for legal aid from the government. Nothing more. Nothing less”.
He added, “Consular access doesn’t mean the consular meets you once. It’s a continuous process which I am seeking”.
Sundaram urged the bench to allow the petition to be treated as a representation to the government.
“That’s what we said it’s for the government to decide,” remarked Justice Khanna and said in the order, “The senior advocate appearing for the petitioner submits that the present writ petition be treated as representation to the government of India. We are taking the statement on record”.
Sundaram also requested the court to also say in the order that the government may consider it but the bench declined to do so and said, “We are not going to pass any order. We are not going to say anything more than this”.
Khalistan separatist Gurpatwant Singh Pannun (AP File Photo) 
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