The significance of extraditing fugitives and bringing them to Indian courts cannot be adequately emphasized. In addition to providing timely justice and redressal of grievances, it also serves as a deterrent against fugitives. However, India’s success rate in extraditing fugitives is low; Only one in every three fugitives is successfully deported to India. This article briefly examines the challenges faced in extraditing fugitives and analyses the impact of India’s recent success in the Vijay Mallya case. Additionally, the article seeks to lay emphasis on the successes and failures of India in obtaining criminal revenue. It also studies the legal and non-legal impediments to extradition and makes recommendations to improve India’s extradition process.
- 1 Introduction
- 2 Extradition laws in India
- 3 Challenges in extraditing fugitives
- 4 Analysing India’s success in extraditing Vijay Mallya
- 5 Conclusion
The era of globalization and improved interconnectivity between countries has made the world a smaller place. With more efficient and faster travel facilities, it becomes very commodious for the criminals to abscond from India to foreign countries. The detection, arrest, trial, extradition, of International and cross border crimes pose a unique challenge. The syndicated crimes including crimes by terrorist and drug cartels as well as individual criminal offences are on the surge.
Due to this, it has gotten extremely imperative for every nation to explain its obligations and rights in battling international crime. Moreover, there is a need to set out the due process of law in seeking arrest, cross-examination, surrender and transfer of suspected people, and eventual trial and conviction. Towards this objective, most nations have adopted extensive extradition policies for extraditing fugitives.
In the past, India endured difficulties with numerous outlaws leaving it to maintain a strategic distance from criminal indictment (Nirav Modi, Mehul Choksi, and Vijay Mallya to give some examples). The government must bring back those offenders to justice so that the ultimate objective of the Indian legal system can be achieved i.e. one who has committed an offence cannot escape the long arm of the law and will have to bear the consequences of his crime. That’s where the process of ‘Extradition’ comes in picture.
The Supreme Court of India defines extradition as ‘The delivery on the part of one State to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and are justifiable in the Courts of the other State.’ The Extradition Act 1962 provides a legislative basis for extradition in India in context to extra-territorial jurisdiction. Furthermore, the process of extraditing fugitives is governed by extradition treaties and extradition arrangements with foreign countries and it is administered by the Consular, Passport and Visa Division (CPV), Ministry of External Affairs which is the central authority in this matter.
At present India possess an extradition treaty with 50 countries and extradition arrangement with 11 countries. Although, India lacks extradition treaties with its neighbouring countries such as Pakistan, China, Myanmar, Bangladesh, and the Maldives which is an undeniable threat to India’s peace and security because it creates a safe passage for the offenders. Extradition treaties are binding on the party states and impose a legal obligation to consider the extraditing fugitives request, but extradition arrangements are not binding on the party-state.
However, requests for extraditing fugitives can be sent to the non- treaty states but the response of such requests depends upon the laws and procedure of that state, diplomatic relations between the two states, and the assurance of reciprocity. India’s success rate in extraditing fugitives from foreign countries is extremely low. This is because apart from extradition treaties, many other factors which decide the success or failure of extradition. These are bilateral relations, assurance of reciprocity, human rights issue, rules and regulations of a foreign jurisdiction which makes it a very complex and tedious process.
Extradition laws in India
The Extradition laws in India are administered by the Extradition Act, 1962(amended in 1993), and the Extradition Treaties among India and different nations.
There are many sections of the Criminal Procedure Code, 1973 which set out the method which should be followed during the process of extradition. These sections will give you a direction to manage the procedure of extradition. Sections which are dealing with the procedure of Extradition are:
1. Section 41 – This section deals with a police arrest without warrant.
2. Section 166(A)-Letter of request for examination in India or outside India. This letter of request is to any competent authority.
3. Section 166(B)– Letter of request from a country or place outside India to a Court or an authority for investigation in India
4. Section 188– Any Offence committed out of India
All the requests for extradition ought to be upheld by records and data as required. If any extradition treaty exists between India and the requested nation, the request for extradition and documents associated with ought to be set up based on arrangements of the Extradition Treaty.
Challenges in extraditing fugitives
Challenges arising within Extradition Treaties
Certain principles are embodied in extradition treaties which act as a barrier in successful extradition. First, ‘double jeopardy clause’ where a person cannot be punished twice for the same offence and it is because of this clause India failed to extradite David Headley who was involved in 26/11 Mumbai terror attacks as he has already been sentenced for 35 years by the US for killing six American people in Mumbai attacks.
Secondly, ‘Rule of specialty’ which means the extradited person must proceed only against the offence for which his extradition was requested. In case of extradition of Abu Salem from Portugal, the Supreme court of Portugal criticized India and held that India violated the rule of specialty because Abu Salem was slapped with additional charges for his role in 1993 Mumbai blasts besides cases of murder and extortion.
Also, modern extradition treaties embrace the ‘dual criminality’ approach where extradition can be requested only for those offences which are considered a crime in both the requesting and the requested country. Moreover, extradition often denied for offences that attract the death penalty, for political offences, for the nationals of the requested country; or where there could be actual or potential discrimination on account of religion, race, and nationality.
Challenges arising outside the purview of Extradition Treaty
Except those clauses mentioned in the extradition treaties, there are certainly other points which act as a barrier in successful extradition such as human rights violation. However, its extent varies from country to country. For example, the US follows the principle of non-inquiry into the processes or likely treatment of the person the following surrender. But contrary to that the UK and the European countries being member states of the European Convention of Human Rights (ECHR) give primacy to human rights. Article 3 of ECHR states that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
In Soering v. The United Kingdom, ECHR identified poor conditions in prisons as torture, inhuman or degrading treatment. Based on this, the UK and the other European countries denied a plethora of extradition requests because of the poor condition of Indian prison that includes overcrowding of criminals, lack of staff in prisons, poor infrastructure, lack of medical facilities, and custodial violence in the name of extracting confessions, which jeopardize the dignity of a human being. In Chahal v. The United Kingdom, extradition of Sikh separatist Karamjit Singh Chahal was denied because of the presence of a potential threat to the deportee of torture and inhuman or degrading treatment.
In the Sanjeev Kumar Chawla case, the Magistrate Court of Westminster denied extradition averring human rights violations at Tihar Jail in Delhi. Likewise in the case of Niels Holck alias Kim Peter Davy accused of involvement in the dropping of arms in Purilia case in 1995, Denmark High Court denied extradition due to the risk of torture and inhuman treatment. Moreover, in Vijay Mallya’s case, the UK judge ordered the prosecution to send a video of Arthur Road Jail to assess whether its conditions violate Article 3 of ECHR or not.
Procedural Irregularities and Diplomacy
Extradition is a tedious task as the requesting state must comply with different documentary requirements for different countries. This, in turn, gives rise to various procedural irregularities that result in denial of extradition such as delays in investigation, translation errors, fabricated documents, the incorrect format of affidavits, etc. In Jatinder Angurala and Asha Rani Angurala’s case, the UK court denied their extradition to India and was highly critical of the Central Bureau of Investigation (CBI) for the delays because of which the case was pending for 25 years.
Furthermore in 2014 Namibian Court denied extradition of Mathieu Nicolas Furic because of unauthenticated documents and translations not certified by the sworn translator. However, apart from the judicial process extradition is more of a political process. Positive response to the extradition request and commitment of the requested state depends upon the diplomatic relations between the requesting and the requested state. India and Pakistan’s bad diplomatic relations is the reason because of which India is unable to extradite Dawood Ibrahim. Political concerns may also arise when domestic laws of the requested state are preferred.
As in the case of Warren Anderson, CEO of Union Carbide, accused in the Bhopal gas tragedy, the US denied extradition because in the US such accidents are treated as a civil liability issue rather than criminal liability. Furthermore, denial of extradition also depends on the principle of reciprocity i.e. assurance from the requesting country that they will treat the requested country’s extradition requests similarly in the future. In 1993 when India requested the UAE for the extradition of Dawood Ibrahim, Dubai did not respond positively because earlier India did not respond positively to the extradition requests by UAE for V. Sitharaman and Ravji Bhai Pawar.
Analysing India’s success in extraditing Vijay Mallya
The Indian government filed an extradition request on 9 February 2017 seeking the extradition of Vijay Mallya concerning his involvement in banking fraud and for the commission of the offences of cheating and criminal conspiracy under the IPC read with offences under the Prevention of Corruption Act, 1988 and Prevention of Money Laundering Act, 2002 which corresponded to the notional UK offences of ‘conspiracy to defraud’, ‘making false representations’, ‘diversion and dispersal of the proceeds of lending’ and ‘money laundering’.
Both the Magistrate Court and the High Court held that there was a prima facie case against him and also accepted the assurances given by the Indian Government regarding prison conditions and found Vijay Mallya guilty. This is a big achievement for the Indian Government as India’s track record of extraditing fugitives from the UK is very appalling.
Between 1993 and 2016 Indian government made 23 extradition requests to the UK out of which only one individual was successfully extradited to India. Later, the Indian government successfully extradited Sanjeev Kumar Chawla and now Vijay Mallya. The success of these two cases clearly states that the UK is no longer a safe habitat for offenders. Furthermore, violation of human rights and bad prison conditions are the primary arguments in the defense of the offenders. India has successfully countered it by giving adequate assurances regarding its prison conditions and established that there is no violation of Article 3 of ECHR that will help in more successful extraditions in the future.
The Principal of extradition, in Practical terms as well as in theory, has accomplished a certain position where an individual who is suspected to, abscond from the country from being prosecuted.
In one of the established cases of Lord Griffiths in which he said that the main aim of the process of Extraditing Fugitives was to transfer the offender who has been suspected of committing a crime from a country to another. It was stated that evidence needs to be proved to establish a case against the suspect to save and respect the human rights of the accused individual. If there is a persistent terror in the minds of criminals and offenders where they will be caught or extradited and prosecuted with that also being punished extremely for committing crimes, it is going to reduce crimes and criminals.
Hence, in short, it very well can be concluded that the law of extradition and its procedure is significant for keeping up harmony and order in the society and useful to punish the escapees who were attempting to escape from their punishment. Although, from the analysis, it is very obvious that the achievement pace of India in Extraditing Fugitives is horrifyingly low; just one in every three fugitives is by and large effectively extradited to India, despite India’s specific number of treaties with different countries.
Thus, taking into account the expanding number of lawbreakers who are traveling to different nations just to spare themselves from the prosecution in India, it’s high time for India to plan another policy with the goal that India will make significant progress in future occasions in the event of Extraditing Fugitives.