7 PM | The Law of Extradition in India | 15 April, 2019

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Context

Vijay Mallya has submitted a “renewal application” in the UK High Court, making another attempt at appealing against his extradition to India to face fraud and money laundering charges amounting to ₹ 9,000 crore.

What is extradition

  • Extradition is the formal process of one state surrendering an individual to another state for prosecution or punishment for crimes committed in the requesting country’s jurisdiction.
  • It typically is enabled by a bilateral or multilateral treaty.
  • Some states will extradite without a treaty, but those cases are rare. 
Other related terms
• Deportation: In deportation, a person is ordered to leave a country and is not allowed to return to that country.
• Exclusion: In exclusion, a person is prohibited from staying in a particular part of a sovereign state.
• Repartition: Repartition is the process which enables transfer of foreign prisoner to their native country where they can serve their remaining part of their sentences.

 

Legislative Basis for Extradition in India

  • In India, the extradition of a fugitive (accused or convicted) is governed by the Extradition Act,1962.
  • The extradition of a fugitive depends upon the treaties/conventions/arrangements entered into by India with other countries. Thus, the extradition act has to be read along with the treaty/convention/arrangement that India has with other countries.
  • The Ministry of External Affairs is nodal government body for extradition matters in India.
  • At present, India has bilateral extradition treaties with 43 countries and extradition arrangements with 10 countries.
  • Unlike treaty mechanisms, where states are obligated to consider requests for extradition, “extradition arrangements” are non-binding and do not impose any legal obligations on party states.
  • India is also a party to several multilateral conventions that provide a binding extradition framework for curbing transnational crimes such as drug trafficking, terrorism and aircraft hijacking.
  • Requests for surrender of fugitives can also be made to non-treaty states. These requests will be considered in accordance with laws and procedures of the foreign state, and with the assurance of reciprocity from India 
Multilateral conventions providing for Extradition
• United Nations Convention Against Corruption (2003)
• United Nations Convention against Transnational Organized Crime (2000)
• United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988)
• International Convention for the Suppression of the Financing of Terrorism (1999)
• International Convention on the Suppression of Terrorist Bombings (1997)
• Convention for the Suppression of Unlawful Seizure of Aircraft (1970)

 

Basic Principles Governing Extradition

  • Principle of relative Seriousness of the offence: Extradition is usually permissible only for relatively more serious offences, and not for trivial misdemeanours or petty offences.
  • Principle of Dual Criminality: This requires that the offence that the fugitive is alleged to have committed, should be an offence both in the requesting as well as the requested state. 
This refers to the substance of the offence and not the nomenclature given to it in a specific country, which may vary.
In Quattrocchi’s case, the request for extradition was declined as the CBI had not filed the requisite documents making out a specific case for extradition and had not satisfied the court as to the basic requirement of ‘dual criminality’. To satisfy oneself as to the requirement of dual criminality, one has to examine the treaty between the two countries and see if the offence in question finds mention there.

 

  • Principle of proportionality between offence and sentence: Requesting state should respect the principle of proportionality between offence and sentence and punishment for that particular crime should not be excessively harsh or inhuman, in which case extradition request may be declined.
  • Principle of Reciprocity: Reciprocity in exchange of fugitives between requesting and requested State
  • Principle of Specialty: An accused is extradited for a particular offence and the country which requests the extradition is entitled to prosecute that person only for the crime for which he was extradited i.e. he cannot be punished for any other offence but can only be punished for the offence for which he is being extradited.

Importance of extradition

Contemporary society with all its technological developments has become a play field to criminal activities. Easier transportation and communication are aiding the criminals to easily flee from the jurisdictional clutches of victim states. This increase the importance of extradition treaty/arrangements

  • Sovereign constrain: Since the sovereign constraints stop the victim state to effectively exercise their jurisdiction, extradition alone offers the legal avenue to overcome the jurisdictional hardship.
  • To provide justice and grievance redressal: Bringing back offenders from foreign countries is essential for providing timely justice and grievance redressal.
  • Provides sense of gratification: Punishment of the criminal in the same country in which the crime is committed provides sense of gratification and security of the public of that country.
  • Act as deterrence: It serves as a deterrent against offenders who consider escape as an easy way to subvert India’s justice system.
  • International cooperation: Extradition is step towards the achievement of international cooperation in general required for solving international problems of a social character
Extradition is usually not granted for
• political offences
• for nationals of the requested country;
• offences where death penalty may be imposed;
• double jeopardy;
• where there could be actual or potential discrimination on account of religion, race and nationality

 

Issues with extradition law

India’s success rate in extraditing fugitives is abysmally low; only one in every three fugitives are being successfully extradited to India. India is not able to bring back like David Headley, Warren Anderson and Vijay Mallya.  Some key challenges are

  1. Less number of bilateral extradition treaties: India has a fewer number of bilateral extradition treaties compared to other countries. The US and the UK, for example, have extradition treaties with over 100 countries each.
  2. No extradition treaty with Neighbouring countries: India does not have extradition treaties with several neighbouring states, such as China, Pakistan, Myanmar and Afghanistan.
  3. Irregularity in Investigation: At present, multiple extradition cases is handled by CBI which in understaffed. Irregularities arise at investigation stage often delays extradition
  4. Dual criminality: Extradition is possible only in cases that are seen as crimes in both the countries in question. In past many offenders took help of dual criminality to avoid extradition.
  5. Double jeopardy: The “double jeopardy” clause, which debars punishment for the same crime twice, is the primary reason why India, for example, has been unable to extradite David Headley from the US.
  6. Concerns of human rights violation: Primacy given to human rights concerns have developed as a result of the strong individual rights movements in European nations. In 2017, British courts rejected the extradition of alleged bookie Sanjeev Kumar Chawla, stating that his human rights may be violated over severe conditions in Delhi’s Tihar jail.
  7. Poor prison conditions: Many European country consider poor prison conditions as a form of human rights violation. Fugitives often raise this as a challenge during extradition hearings.
  8. Documentary requirements: Extradition procedures often face unreasonable delays because of improper or fabricated documents, and incorrect format of affidavits and certificates that is required by foreign countries.
  9. Bilateral relations and Domestic politics: It is often argued that extradition is as much a political process as it is a judicial one. The expeditious processing of requests and the commitment to prepare for and defend the case before Courts, depends on bilateral relations and the opportune use of diplomacy and negotiations to push for the process by the requested country.

Way ahead

Extradition is a sovereign decision. In spite of binding treaty mechanisms, the process of extraditing fugitives is lengthy, complex and heavily depends on domestic law and politics of the requested state. India could improve its success rate by

  • Leveraging diplomacy and bilateral negotiations to persuade countries to process requests expeditiously
  • Indian government must conclude extradition treaties with as many countries as possible, and make efforts to enter into more bilateral extradition relations
  • India also needs to take steps to dispel concerns regarding poor prison conditions and potential human rights violations. India could consider signing international instruments, such as the UN Convention Against Torture (1984) to establish India’s zero tolerance towards torture and custodial violence.
  • For addressing investigational delays, it is imperative to improve the capacity and organisational efficiencies of law enforcement agencies so that they may conduct speedy investigation. Government should establish a central agency to take up larger cases involving extradition as CBI is understaffed.
The Justice Malimath Committee report (2003) recommends setting up a Central Agency, on similar lines with the Federal Bureau of Investigation (USA), to exercise jurisdiction over crimes and offences affecting national security.

 

To ensure that India’s extradition requests are in compliance with treaty conditions and documentary requirements, India must put in place suitable organisational mechanisms to familiarise itself with laws and regulations of treaty states. India could adopt the good practices of the US’ Office of International Affairs (OIA)


Source: https://www.thehindubusinessline.com/money-and-banking/vijay-mallya-renews-application-for-appeal-against-extradition/article26817833.ece

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