Extradition Policy of India

Context

A London court issued an arrest warrant against Nirav Modi in response to an extradition request by the Enforcement Directorate (ED).

About

With the advent of globalization and increased interconnectivity, it has become easier for offenders in India to escape to foreign jurisdictions and avoid prosecution in the country. India’s success rate in extraditing fugitives is abysmally low; only one in every three fugitives are being successfully extradited to India.

Extradition

• Extradition may be defined as the process by which one State upon the request of another surrenders to the latter a person found within its jurisdiction for trial and punishment or, if he has been already convicted, only for punishment, on account of a crime punishable by the laws of the requesting State and committed outside the territory of the requested State.
• The extradition of a fugitive from India to a foreign country or vice-versa is governed by the provisions of Indian Extradition Act, 1962.
• The basis of extradition could be a treaty between India and a foreign country. Under Section 3 of the Act, a notification could be issued by the Government of India extending the provisions of the Act to the country/countries notified.

Background:

• ICPO (International Criminal Police Commission)-Interpol has been a forerunner in international efforts to improve and accelerate existing procedure of extradition.
• Information regarding the fugitive criminals wanted in foreign countries is received directly from the concerned country or through the General Secretariat of the ICPO-Interpol in the form of red notices.
• The Interpol Wing of the Central Bureau of Investigation immediately passes it on to the concerned police organizations. The red notices received from the General Secretariat are circulated to all the State Police authorities and immigration authorities.

There is a daily inflow and outflow of communications between Interpol Nw Delhi and National Central Bureaus of member countries which ranges from:

• a compassionate request to locate and notify the next-of-kin of a death;
• request to search for a missing person;
• criminal history requests for any number of reasons;
• requests to carry out investigations in cases of fraud, commercial crime, trafficking in narcotics drugs, and criminal code offences upto murder.

The Ministry of External Affairs (MEA) is India’s nodal government body for extradition matters.

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.

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.

India does not have extradition treaties with several neighboring states, such as China, Pakistan, Myanmar and Afghanistan.

Many security threats originate from border areas and flourish due to challenges presented by difficult terrain, harsh climate and poor border infrastructure.

With the absence of a defined treaty mechanism, India finds it difficult to secure the surrender of criminals who flee to India’s Border States.

Issues and Challenges to the Return of Fugitives from Abroad -

• Extradition is usually not granted for “political offences”; for nationals of the requested country; offences where death penalty may be imposed; where there will be “double jeopardy”; or where there could be actual or potential discrimination on account of religion, race and nationality.
• 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.
• Headley, an American terrorist involved in plotting the 26/11 Mumbai attacks, has already been sentenced to imprisonment by US courts, for killing six Americans.
• Challenges to extradition orders can also be raised outside treaty terms.
• These are generally based on concerns of human rights violations, such as torture or cruel, inhuman and degrading treatment.
• For instance, the US usually follows the principle of “non-inquiry” in judicial review of extradition orders, and does not go into conditions or circumstances awaiting the requested person.
• European countries and the United Kingdom have been rejecting extradition cases on human rights concerns, such as the possibility of receiving “torture, inhuman and degrading treatment” at the hands of the requesting state.
• Vijay Mallya’s lawyers argued that the poor conditions in Arthur Road Jail (Mumbai) will be tantamount to inhuman and degrading treatment.

In the event that India succeeds in regaining custody of a fugitive, compliance with treaty terms is necessary.

An important treaty clause known as the “rule of specialty” mandates that the extradited fugitive will be prosecuted only for the offence for which he was surrendered.

For example, when India secured the return of Abu Salem from Portugal, the law enforcement agencies framed additional charges against him for his role in the 1993 Mumbai serial blasts. Portugal widely criticized the move, and the Supreme Court in Lisbon held that India was in violation of extradition rules.

Adherence to treaty commitments is of paramount importance and helps maintain mutual trust, cooperation and reciprocity between countries.

The low numbers of extradited economic offenders (13 as against 28 ongoing investigations) can be attributed to the history of extradition treaties and the legal opinion regarding categorizing financial irregularities as a civil offence rather than a criminal one.

The exclusion for fiscal offences was based on the view that these offences were not criminal conduct, and attracted less moral stigma.

Most of India’s bilateral treaties provide that an individual alleged to have committed fiscal offences would be extradited back to the country.

However, considering that India has only been able to secure the return of 13 economic offenders since 2002, the prospect of securing the return of Modi and Choksi, and other economic offenders, looks bleak.

Extradition procedures are further complicated by unreasonable delays and variance in documentary requirements of foreign countries.

Extradition process

• The first step of the extradition process is to transmit a formal extradition request through diplomatic channels to the foreign government.
• Once investigations are completed by state or central agencies, they forward a request containing full details of the case accompanied with translations (where required) detailing the offences charged with, witness testimonies, arrest warrant, and documents establishing identity of the requested person.
• These requests are received by the CPV (Consular, Passport and Visa) division, MEA and are processed in consultation with the Legal and Treaties division of the ministry.
• When the MEA transmits a formal extradition request to its diplomatic counterparts abroad, the foreign government is required to act on the request by issuing an extradition order against the requested person and fight the case, on behalf of India, before their courts.
• Irregularities that arise at this stage, such as delays in investigation, misbehavior by police officials, improper or fabricated documents, and incorrect format of affidavits and certificates, may come to fore at the penultimate stage of judicial review before foreign courts.

Way forward:

• Extradition is as much a political process as it is a judicial one.
• The expeditious processing of extradition 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.
• India needs to take steps to dispel concerns regarding poor prison conditions and potential human rights violations of the requested person.
• 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 organizational efficiencies of law enforcement agencies so that they may conduct speedy investigation in these cases.
• To ensure that India’s extradition requests are in compliance with treaty conditions and documentary requirements, India must put in place suitable organizational mechanisms to familiarize itself with laws and regulations of treaty states.
• India could adopt the good practices of the US’ Office of International Affairs (OIA), Washington’s primary body to handle extradition requests, and employ lawyers and station trained liaison officers in countries with which the country has extradition relations.
• Extradition is, after all, a sovereign decision.

Practice Question:

Globalization has brought new challenges such as offenders fleeing India. In this context, examine how equipped is India to tackle this situation.