October 20, 2021

All About Extradition Under International Law

Criminal law

 Introduction 

It is quite possible for a person to escape to another State after committing a crime in his own State because of the development of technology of air-traffic. Extradition is the official process whereby one nation or State surrenders a suspected or convicted criminal to another nation or state. Between nation, States Extradition is regulated by treaties. Extradition Comes to end when asylum Starts.

 Meaning of Extradition 

Term ‘extradition’ denotes the process whereby under a concluded treaty one State surrenders to any other State at its request, a person accused or convicted of a criminal offense committed against the law of the requesting State,, such requesting State being competent to try the alleged offender.
 In Extradition, there are two States involved, the territorial State for example – State, where an accused or convicted, is found and to whom the request is made. And another state is requesting State, for example, a State where the crime has been committed. The request is made normally through the diplomatic channel.

 

 Definition of Extradition

The Extradition may be defined as the surrender of an accused or convicted person by the State on whose territory is found to the State on whose territory he is alleged to have committed or to have been convicted of a crime.
Some eminent jurist defines extradition as follows –

Lawrence-

Lawrence defines Extradition as “the surrender by one State to another of an individual who is found within the territory of the former, and is accused of having committed a crime within the territory of the latter; or who having committed a crime outside the territory of the latter is one of its subjects and as such by its law amenable to its jurisdiction.”


Oppenheim

 According to Oppenheim, “extradition is the delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed or to have been convicted of, a crime by the state on whose territory the alleged criminal happens for the crime to be.”

As defined by Hon’ble Supreme Court of India, ‘Extradition is 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’.

Purpose of Extradition


A Criminal is extradited to requesting State because of the following reasons –

(i) Extradition is founded on the broad principle that it is in the interest of the civilized communities that criminals should not to go unpunished and on that account it is recognized as a part of the comity of nations that one State should ordinarily afford to another state assistance towards bringing offenders to justice.

(ii)  Extradition has a deterrent effect because extradition act as a warning to criminal that they cannot escape punishment by playing to another State

(iii) Criminals are surrendered as to safeguard the interest of territorial State.

(iv) Extradition is done because it is a step towards the achievement of international co-operation in solving international problems of a social character.

(v)  Extradition is based on reciprocity.

(vi)   The State on whose territory the crime has been committed is in better position to try the offender because evidence is more freely available in that State only


When can it be initiated?

An Extradition request for an accused can be initiated in the case of under-investigation, under-trial and convicted criminals.

  1. In cases under investigation, abundant precautions have to be exercised by the law enforcement agency to ensure that it is in possession of prima facie evidence to sustain the allegation before the Courts of Law in the Foreign State.

What is the Legislative Basis for Extradition in India?

The Extradition Act 1962 provides India’s legislative basis for extradition. It consolidated the law relating to the extradition of criminal fugitive from India to foreign states. The Indian Extradition Act, 1962 was substantially modified in 1993 by Act 66 of 1993.

 

What is the Extradition Treaty?

  • Section 2(d) of The Indian Extradition Act 1962 defines an ‘Extradition Treaty’ as a Treaty, Agreement or Arrangement made by India with a Foreign State, relating to the extradition of fugitive criminals which extends to and is binding on, India. Extradition treaties are traditionally bilateral in character.
  • Generally, there are five principles which are followed under the treaty:
    • The extradition applies only to such offences which are mentioned in the treaty,
    • It applies the principle of dual criminality which means that the offence sought to be an offence in the national laws of requesting as well as requested country,
    • The requested country must be satisfied that there is a prima facie case made against the offender,
    • The extradition should be made only for the offence for which extradition was requested,
    • The accused must be provided with a fair trial.
  • At present India has an Extradition treaty with 43 countries and Extradition agreement with 11 countries.

 Extradition Procedure in India

  • Information about the fugitive criminals wanted in foreign countries is received from the country or through Interpol.
  • The Interpol wing of the CBI then passes the information to the concerned police departments.
  • The information is also passed on to the immigration authorities.
  • Then, action can be taken under the 1962 act.

A few common bars on extradition

  1. Failure to fulfil dual criminality – if the act for which the criminal’s extradition is requested is not a crime in the requested state, then the state can refuse extradition.
  2. Political crimes – most nations refuse the extradition of political criminal suspects. This excludes terrorist offences and violent crimes.
  3. The possibility of certain forms of punishment – if the accused is likely to receive capital punishment or torture in the requesting State, the requested state can refuse extradition.
  4. Jurisdiction – jurisdiction over a crime can be invoked to refuse extradition.
  5. The absence of an extradition treaty.

Indian nationals who return to India after committing offences in West Asia/Gulf countries are not extradited to those countries. They are liable to be prosecuted in India in accordance with Indian Law, as bilateral treaties with these countries preclude (except Oman) extradition of own nationals.

The topic of extradition is in the news of late because of the Vijay Mallya’s fraud and money laundering case. Mallya is in the United Kingdom and has been evading prosecution in India. In December 2018, a UK court had ordered the extradition of Mallya.

 

Recent Developments in India

While India has a strong regulatory framework with regards to extradition for syndicated crimes, loopholes were discovered for other crimes. Fraud cases had risen to approximately 6,000 cases in the year of 2017-2018. it did not account for fugitive economic offenders until 2018, through the enactment of the Fugitive Economic Offenders Act. In 2019, the banking and finance sector suffered losses of a staggering ₹41,000 Crores resulting from frauds. Prime examples of recent fraud cases include the cases of Vijay Mallya and Nirav Modi, who are both facing the extradition process currently. In light of these fugitives using the loophole to their advantage and absconding from India, the Fugitive Economic Offenders Act was enacted in 2018 with the aim of deterring fugitive economic offenders from evading the process of law in India by seeking refuge in other jurisdictions and to preserve the sanctity of the Indian rule of law.

As time has passed, the complexity and intricacy of extradition situations have also increased. Following are some developments which highlight the same;

  • The Mehul Choksi Case:

The case involving Mr. Choksi was one that stirred great controversy in India. Mr Choksi is wanted in India for counts of criminal conspiracy, corruption, money laundering and criminal breach of trust on account of the Punjab National Bank Loan Fraud.

After being accused of his crimes, Mr. Choksi fled to Antigua, where he purchased citizenship under am investor scheme, in light of avoiding deportation to India for his Trial.

The Antiguan authorities are naturally reluctant to extradite one of their citizens as they believed he would be subject to inhumane conditions in India. Thus, India is facing a difficult time retrieving Mr. Choksi from Antigua.

  • The Ravi Pujari Case:

Ravi Pujari was a popular gangster in the early 2000s who was known for threatening eminent personalities in the film and real estate industries. He was wanted by officials on counts of murder of Mr. Kukreja, a popular builder and on attempt to murder charges by Mr. Suresh Wadhwa.

Mr Pujari fled India and remained a fugitive in numerous countries such as Australia, The United Arab Emirates, Burkina Faso and Senegal. His threat calls to a Kerala MLA traced his location to Senegal, where he lived under the alias of Anthony Fernandez.

The fact that India had extradition arrangements with Senegal allowed Mr Pujari to be extradited to Bangalore in the subsequent days.

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.

Conclusion

Extradition happens to be an important tool in ensuring law and justice today. However, the irregularity in its application between nations poses a threat to the principles of justice.However, it is essential to ensure a balance between extradition law and rights of an individual. It can be understood that this field is a work in progress as the customary nature of this law vis a vis the standing nature of human and individual rights makes the balancing act one of great difficulty.This essentially means that extradition must at the least be in line with ensuring basic human rights of an individual. Effectively, every country must comply with extradition request unless the fugitive has a compelling reason to prevent such action.It is safe to say that the existing international framework does undoubtedly increase the effectivity of law enforcement. But as a caveat, it is essential to ensure to ensure the safety of the individual is ensured before the interest of the other country so as to ensure that extradition is practical both in terms of respect and practice.

 Author: Ayushi Chaudhary (Amity Law School)

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