The Michel test case: on India’s extradition track record

The Michel test case: on India’s extradition track record

News:

Christian Michel, the alleged middleman in the AgustaWestland chopper deal extradited to India.

Important Facts:

• India’s track record with securing the extradition of fugitives is modest, with only about a third of all requests since 2002 being accepted.
• Amongst the 44 countries India has extradition treaties with the United Arab Emirates has been the most amenable; it has deported or extradited 19 of 66 fugitives to India in the past decade.

About the Deal:

• Christian Michel, the alleged British middleman accused of bribing Indian politicians and officials in the 3,600 crore VVIP chopper deal, had been on the run from Indian authorities in the UAE for more than a year
• A non-bailable warrant was issued by a special Delhi court followed by an Interpol Red Corner Notice in 2015 which led to his arrest in February 2017 in Dubai.

What is Extradition.

• The action of surrendering/handing over a fugitive (a person who has escaped from being confined/accused of crime) from one jurisdiction to another by mutual agreements between the two countries. deportation, handover, expulsion.
• Extradition, therefore, is a means to resolve two apparently conflicting principles – first being that – criminal jurisdiction extends only to offences committed within geographical boundaries; Secondly, that criminal going unpunished on account of jurisdictional reasons.

Reason for Low Success rate

• Low success rate in the past is the perception that India’s criminal justice system delivers too slowly.
• Fewer number of bilateral extradition treaties compared to other countries. With the absence of a defined treaty mechanism, India may find it difficult to secure the surrender of criminals who flee to India’s border states. The US and the UK, for example, have extradition treaties with over 100 countries each.

Legislative Basis for Extradition in India

• The Extradition Act 1962 provides India’s legislative basis for extradition. The Act consolidated the law relating to the extradition of fugitive criminals from India to foreign states. It was substantially amended by Act 66 of 1993.

Extradition Treaty:

• Extradition treaty, means ‘a treaty, agreement, or arrangement with a foreign state relating to extradition of fugitive criminals’. An extradition treaty also spells out the conditions precedent for an extradition. It also includes a list of crimes which are extraditable.
• Extradition treaties are traditionally bilateral in character.
• It is important to note that even in absence of a treaty, extradition may be permitted if it has the backing of the principle of reciprocity.

Countries with which India has Extradition Treaties/Arrangements

• India can make an extradition request to any country. While India’s treaty partners have treaty obligations to consider India’s requests.
• In the absence of a treaty, it is a matter for the foreign country to consider, in accordance with its domestic laws and procedures.
• Central Government may treat any convention to which India and a foreign state are parties, as an Extradition Treaty. The convention so made will have the list of specified crimes.

India and International Extradition Laws:

• London Scheme – Commonwealth Scheme for the Rendition of Fugitive Offenders 1966 – It is an arrangement which is non-binding at international law and does not impose legal obligations on participants unlike an Extradition Treaty
• International Convention for the Suppression of Terrorist Bombings, 1997. This also provides a legal basis for Extradition in Terror Crimes
• Ratified UN Conventions by India.
  • United Nations Convention against Corruption (UNCAC)
  • United Nations Convention against Transnational Organised Crime (UNCTOC) and its three protocols. Article 16 of UNCTOC can be used as a basis for extradition of fugitive criminals accused/convicted of offences that are classified as Organized Crimes.

Challenges to Extradition orders

• Extradition is usually not granted for “political offences”; for nationals of the requested country; offences where death penalty may be imposed 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.
• On the grounds of misbehavior by police officials, improper or fabricated documents, and incorrect format of affidavits and certificates extradition may be denied.
• Human rights violations, such as torture or cruel, inhuman and degrading treatment may impinge upon the extradition proceedings.

Way Forward

• India could adopt a targeted approach to deal with lengthy and complex extradition process which depends on domestic law and politics of the requested state and thereby improve its success rate.
• Additionally, the Indian government must make good on its policy “to conclude extradition treaties with as many countries” as possible, and make efforts to enter into more bilateral.
• Leveraging diplomacy and bilateral negotiations to persuade countries to process requests expeditiously, is an important step.
• Preventive law and policy measures that can deter the escape of offenders, may also be explored.
• The recently passed Fugitive Economic Offenders Bill, 2018 signifies the government’s efforts to shift its focus to preventive legal mechanisms.
• 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.
• India also needs to take steps to dispel concerns regarding poor prison conditions and potential human rights violations of the requested person.