Extradition
"No one can outrun the long arms of Law"
This adage illustrates the true nature and objective of the Legal System. Upon
committing an offence, the person will be eventually brought to Justice; this is
the assurance that is given by the Law. With globalisation and
interconnectedness between the countries, it has become easier for the offenders
in India to travel abroad and try to safeguard themselves against the
prosecutions faced in India.
Introduction
Extradition is an essential legal mechanism through which individuals suspected
or convicted of crime can be transferred from one country to another to face
trial or punishment. It forms a crucial part of public international al law,
aiming to promote cooperation and maintain justice and security among nations.
Definition:
The term extradition has derived from two Latin words ex and traditum.
Ordinarily it may mean 'delivery of criminals', 'surrender of Fugitive', or
'handover of fugitives
According to Oppenheim, "Extradition is the delivery of an accused or a
convicted individual to the state where he is accused of, or has been convicted
of, a crime, by the state on whose territory he happens for the time to be".
Purpose of extradition:
A criminal is extradited to the requesting state for the following reasons:
- Suppression of crime:
Extradition is a process towards the suppression of crime. Normally a person cannot be punished or prosecuted in a state where he has fled away because of lack of jurisdiction or because of some technical rules of criminal law. Criminals are therefore extradited so that their crimes may not go unpunished.
- Deterrent effect:
Extradition acts as a warning to the criminals that they can't escape punishment by fleeing to another state. Extradition therefore has a deterrent effect.
- Safeguarding the interests of Territorial state:
Criminals are surrendered as it safeguards the interest of the territorial state. If a particular state adopts a policy of non-extradition of criminals, they would like to flee to that state only. The state, therefore, would become a place for international criminals, which indeed would be dangerous for it because they may again commit a crime there if they are left free.
- Reciprocity:
Extradition is based on reciprocity. A state that is requested to surrender the criminal today may have to request the extradition of a criminal on some future date.
- International co-operation:
Extradition is done because it is a step towards the achievement of international co-operation in solving international problems of a social character. Thus, it fulfills one of the purposes of the UN as provided under Para 3 of article 1 of the charter.
- Evidence:
The state on whose territory the crime has been committed is in a better position to try the offender because the evidence is more freely available in that state only.
Basis of the principles of extradition:
Double criminality: Double criminality refers to the characterization of the relator's criminal conduct in so far as it constitutes an offence under the laws
of the two respective states. 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,
Extraditable offence: The very first requirement for a successful extradition is
that the offence committed must be an extraditable offence. Extradition is a
procedure appropriate only for the more serious offences and accordingly the
national extradition law of most States limits the number of extraditable
offences either to certain specific offences or to offences subject to a
specified level of punishment
Double Jeopardy: The most basic understanding of double jeopardy is that it
refers to prosecuting a person more than once for the same offense. Once you are
acquitted or convicted of a specific instance of violating the law however, you
cannot be prosecuted (or punished again, if convicted) on that same charge by
the same government for that same instance of violating that law.
Rule of Speciality: This doctrine is premised on the assumption that whenever a
state uses its formal processes to surrender a person to another state for a
specific charge, the requesting state shall carry out its intended purpose of
prosecuting or punishing the offender only for the offence for which the
requested state conceded extradition. The doctrine of specialty developed to
protect the requested country from abuse of its discretionary act of extradition
Rule of Reciprocity: Reciprocity is one of the legal basis for extradition in
the absence of a treaty which is a part of international principles of friendly
cooperation amongst nations. Reciprocity, as a substantive requirement of
extradition (whether based on a treaty or not) arises with respect to various
specific aspects of the process.
Extradition of nationals: In principle, any individual, whether he is a national
of the requesting State, or of the requested State, or of a third State, may be
extradited. Many States, however, never extradite one of their nationals to a
foreign State Does it means the offender goes unpunished? The answer is
negative. In such a case the requested party has to initiate criminal
prosecution against any such person for the same offence according to its laws.
Political or Military Character: There is an important principle in
international law that the political criminal shall not be extradited. For
example: Re Meunier case in which the accused was an anarchist and was charged
with causing two explosions in para café and two barracks. After committing the
offence, he fled to England. France demanded his extradition.
The accused
contended that the nature of his crime was political and therefore be could not
be extradited. The practice of non-extradition for political crimes began with
French Revolution of 1789. It is also a restriction on the scope of extradition.
Military criminals shall also not be extradited who have not been charged of war
crimes
Laws related to Extradition in India:
In India, the Law that governs extradition matters is known as "The Extradition
Treaty, 1962". This law extends to the whole of India and has applied to India
since 15th September 1962. This law is for extraditing persons to India and from
India to foreign countries. The basis of the extradition could be a treaty
between India and another country.
Section 2 (d) of the Extradition Act, 1962 defines the term "Extradition
Treaty". It says, "Extradition treaty" means a treaty, agreement or arrangement
made by India with a foreign State relating to the extradition of fugitive
criminals and includes any treaty, agreement or arrangement relating to the
extradition of fugitive criminals made before the 15th day of August 1947, which
extends to, and is binding on, India.
At present India has an Extradition treaty with 43 countries and Extradition
agreement with 11 countries.
Extradition Treaties:
Extradition treaties are the agreements between Countries that govern the
matters of extradition of persons. India currently has extradition treaties with
48 countries. The nodal government body for the extradition matters of India is
the Ministry of External Affairs. It provides a detailed account of the number
of fugitives surrendered from different countries.
India is a signatory to a number of multilateral treaties that offer a legally
enforceable framework for extradition in order to combat international crimes,
including drug trafficking, terrorism, and the hijacking of aeroplanes. Fugitive
prisoners may also be demanded to be turned over to non-treaty governments. With
the promise of reciprocity from India, these requests may be taken into
consideration in line with the rules and regulations of the foreign state.
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 redressed: 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
Landmark cases on extradition
Savarkar's case:
In 1910, Vinayak Damodar Savarkar was being brought to India from Britain via a
vessel named Morea, for his trial on a charge of treason and murder (Emperor v.
Vinayak Damodar Savarkar (1910)). He escaped to France while the vessel was
harboured at Marseilles. However, a French policeman, in a mistaken execution of
his duty, caught and surrendered Savarkar to the British authorities without
following the extradition proceedings.
Later, France demanded Britain hand over Savarkar to formally carry out his extradition procedure. Britain refused
France's demand, and the case was laid before the Permanent Court of Arbitration
in Hague. The Court agreed with the happening of irregularity on the part of the
French policeman. However, France's demand for a fresh extradition procedure was
rejected owing to the absence of international law regarding such circumstances.
Vijay Mallaya's case
The case of Mr. Vijay Mallaya, the business tycoon and owner of Kingfisher
Airlines and United Breweries Holdings Ltd., is arguably the most well-known
extradition case in India (Dr Vijay Mallya v. State Bank Of India (2018)). He
owed a whopping debt of over ₹6,000 crores to 17 Indian banks including the
State Bank of India and the Indian Overseas Bank. Fearing an impending arrest,
Mallaya fled from India to the United Kingdom in 2016. His extradition was
sought by India in 2017.
Mallya's extradition case was laid before the
Westminster Magistrate's Court in London. In 2018, the Court ordered his
extradition to India. His appeal at the High Court in London was rejected;
however, he has not been brought back to India yet due to ongoing legal
procedures. It's also worth noting that in 2019, he was declared a 'Fugitive
Economic Offender' under the Fugitive Economic Offenders Act, 2018.
Nirav Modi's case:
Mr Nirav Modi was a luxury diamond jewellery merchant. In 2018, the Punjab
National Bank (PNB) filed a complaint before the Central Bureau of Investigation
(CBI), alleging Nirav, along with his wife Mrs Ami Modi, of fraudulently
obtaining fake Letters of Understanding (LoU) worth ₹11,400 crores. The money
was then channelised to his fifteen overseas sham companies.
Following a CBI
probe, the Enforcement Directorate (ED) confiscated Nirav's assets in India. He
fled India and sought asylum in the United Kingdom. Interpol issued a Red Corner
Notice against him in 2018. Following an extradition request from India, a
Westminster Court issued an arrest warrant against Nirav. The Court ordered his
extradition to India in 2021.
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.
Conclusion
Extradition is an essential tool not only to render justice but also to test
diplomatic ties. However, the absence of extradition treaties with many
countries becomes the loophole that fugitive criminals exploit. There is a need
to bring about a comprehensive international law relating to extradition. It is
this lacuna which may not only cause economic or judicial issues in the
fugitive's origin country but also pose far-fletching implications like security
threats in the country where takes refuge.
References:
- Gurdip Singh, International Law [ Edition 2021]
- Dr. S. K. Kapoor, Human Rights under International Law & Indian Law (2017)
- S.K Raghuvanshi, Public International law (2016)
- https://blog.ipleaders.in/extradition-in-international-law/
- https://blog.finology.in/Legal-news/extradition-in-international-law
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