Extradition of Fugitives to India – Explained, Pointwise

Introduction

Recently, the U.K’s Home Secretary approved the extradition of diamond merchant Nirav Modi to India. He is wanted in India, in connection with the Punjab National Bank(PNB) fraud.

However, the extradition will happen only when the U.K’s cabinet minister approves this order. Till then, Nirav Modi can also make an appeal against the home secretary’s order in the court.

Therefore, the Indian agencies need to enhance their cooperation with the British authorities. This will ensure the smooth extradition of Nirav Modi. Further, it will also open gates for extraditing other fugitives like Mehul Choksi and Vijay Mallya.

About the case

1. The CBI had registered the case on January 31, 2018, against Nirav Modi, Choksi and others including then officials of Punjab National Bank. 
2. As per CBI, the accused plotted a criminal conspiracy to defraud the public sector bank by fraudulently issuing Letters of Undertaking.
   • LOUs are a guarantee that a bank gives to banks abroad where its client approaches for credit.
   • The figure of LOUs amount to 13000 crores as they were issued without any sanctioned limit or cash margin. Further, these were not entered into the core system of the bank. 
3. However, Modi had escaped from India on January 1, 2018, before the registration of the case in CBI. 
4. A non-bailable arrest warrant was issued by the trial court against him. This was followed by a red corner notice in June 2018 by Interpol.
5. The UK Police arrested him in London in March 2019. Finally, in February 2021, a district court accepted the reasonable grounds of a warrant against Modi in Indian courts.
   1. Under the UK Extradition Act 2003, the judge sent his findings to the Secretary of State for Home Affairs.
   2. Secretary of State makes a decision based on 3 things:
      1. Extradition shouldn’t result in Death Penalty
      2. Rule of speciality must be followed post the extradition
         • Rule of speciality or Principle of Specialty: This states that the extradited person cannot be punished for any other offence but only for the offence for which he is being extradited. So, India cannot conduct a trial on Nirav Modi for any other pre-extradition offences.
      3. The fugitive is shouldn’t have been extradited to U.K from another country
   3. Post this, the UK Cabinet minister is authorised to order extradition under the India-UK Extradition Treaty. He has two months to make the decision.

About 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.
• Other Related terms:
  • Deportation: Under this, 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: It is the process that enables the transfer of foreign prisoners to their native country where they can serve their remaining part of their sentences.

Extradition in India 

1. In India, the extradition of a fugitive (accused or convicted) is governed by the Extradition Act,1962.
2. The extradition of a fugitive depends upon the treaties/conventions/arrangements entered into by India with other countries
3. The Ministry of External Affairs is the nodal body for extradition matters in India.
4. At present, India has bilateral extradition treaties with 43 countries and extradition arrangements with 10 countries.
   • Extradition arrangements are non-binding and do not impose any legal obligations on party states. On the other hand, treaty mechanisms are binding.
5. India is also a party to several multilateral conventions. They provide a binding extradition framework for curbing transnational crimes such as drug trafficking, terrorism, and aircraft hijacking.
   • Based on this an extradition request can be made under: 
     • United Nations Convention Against Corruption (2003), 
     • United Nations Convention against Transnational Organized Crime (2000) etc.
6. Requests for the surrender of fugitives can also be made to non-treaty states. These requests will be considered in accordance with the laws and procedures of the foreign state. 

Principles Governing Extradition

Apart from the Principle of Specialty, there are other principles as well in extradition. This includes,

• Firstly, 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.
• Secondly, Principle of Reciprocity: Countries must show reciprocity in the exchange for fugitives between requesting and requested State.
• Thirdly, Principle of Competence: The requested state must be satisfied that the requesting state has a right to prosecute the fugitive.
• Fourthly, Principle of proportionality between offence and sentence: Punishment for a particular crime should not be excessively harsh or inhuman upon the fugitive. European countries generally don’t extradite when the requesting country has the potential to inflict capital punishment on the fugitive.
• Fifthly, 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. 

Status of extradition in India

• India has been able to extradite back many of the fugitive offenders in the past. However, failures were also witnessed in the case of many offenders. 
  • Successful cases of Extradition: 
    1. AgustaWestland chopper deal co-accused Rajiv Saxena was extradited from the United Arab Emirates in Jan 2019.
    2. Mohammed Yahya, who faced cases of cheating, forgery, and criminal conspiracy, was extradited from Indonesia on October 12, 2018.
    3. Vinay Mittal, who faces cases of cheating, forgery, and criminal conspiracy, was extradited from Indonesia on September 9, 2018.
    4. Chhota Rajan was extradited from Indonesia on November 6, 2015, on charges of murder and kidnapping.
    5. Abu Salem was extradited from Portugal in 2005 to face trial in the 1993 Mumbai bomb blasts case. 
  • Ongoing extradition cases:
    1. India is in the process of extraditing Mehul Choksi and Vijay Mallya from the U.K. for their criminal charges of financial frauds.
    2. Similarly, Tahawwur Rana, a key accused in the 26/11 Mumbai terror attack, will soon be extradited from the US.
  • Failed:
    • India failed to Extradite Lalit Modi ( IPL Betting Case) from the UK
    • Similarly, India also failed to extradite David Headley ( Conspirator of 2008 Mumbai attacks) from the US

Need for Extradition 

• Sovereign constraint: Since the territorial constraints stop the victim state to effectively exercise its jurisdiction, extradition alone offers the legal avenue to overcome the jurisdictional hardship.
• Upholding Justice: Bringing back offenders from foreign countries is essential for providing timely justice and grievance redressal.
• Provides a sense of gratification: Punishment of the criminal in the same country in which the crime is committed provides a sense of gratification and security for 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.

Issues with Extradition

1. Delayed Response by Indian Agencies: This sometimes gives an impression that the requesting state is not serious about extraditing the fugitive. It results in the denial of an extradition request by the extraditing state. 
   • For example, the extradition request against former IPL chief Lalit Modi was filed after a decade.
2. Poor Prison Conditions: The Indian prisons fall short of desired facilities like quality food, bedding, health facilities, etc. This discourages western nations from extraditing fugitives on grounds of human rights violations.
   • Eg – Karamjit Singh Chahal (charges of separatism), Sanjeev Chawla (illegal betting) and Kim Davy (terrorism) escaped extradition due to poor prison conditions.
3. Disregard to extradition clauses: India was criticized by Portugal for the violation of the Principle of Specialty. As India imposed additional cases on Abu Saleem. The same is also feasible in the current extradition cases also. This damages India’s image for upholding extradition laws, especially from the EU.
4. Less number of bilateral extradition treaties: India has a fewer number (43) of bilateral extradition treaties compared to other countries. The US and the UK, for example, have extradition treaties with over 100 countries each.
5. Political Nature: It is often argued that extradition is as much a political process as it is a judicial one. Therefore, it sometimes gets rejection on political grounds in spite of passing the judicial test.  
   • Eg – Warren Martin Anderson was not extradited by the U.S to India in spite of being the CEO of Union Carbide Corporation. UCC was the parent company of UC India limited that was responsible for the Bhopal Gas tragedy in 1984.
6. Double standards for Wealthy individuals: Countries are sometimes accused of having a soft corner for wealthy fugitives. For instance, Jan Marsalek of the Wirecard scandal and former Renault CEO Carlos Ghosn were not extradited by Russia and Lebanon respectively.
7. Double jeopardy: The “double jeopardy” clause debars punishment for the same crime twice. This is the primary reason why India has been unable to extradite David Headley from the US.

Suggestions to improve extradition

1. India needs to sign the UN Convention against Torture that will generate greater trust in its prisons and police personnel.
2. The country needs to improve the capacity and efficiency of investigating agencies to conduct speedy investigations. The government should establish a central agency to take up larger cases involving extradition.
   • The Justice Malimath Committee report (2003) recommended setting up a Central Agency, on similar lines with the Federal Bureau of Investigation (USA). This would exercise jurisdiction over crimes and offences affecting national security.
3. India should push the adoption of its nine-point agenda by the G 20 countries. The agenda contains a comprehensive framework of action against fugitive economic offenders. 
4. The country should enact complementary legislation that smoothens the extradition process. For instance, the government can change some of the critical provisions in the Fugitive Economic Offenders Act.

Conclusion

India needs to strengthen its domestic framework and maintain harmonious relations with other countries. The fulfilment of these twin objectives are a requirement in ensuring a smooth, transparent, and speedy extradition process.