Extradition plays a vital role in the international battle against crime, as crimes increasingly turn international with their cross-border implications. It owes its existence to the Principle of Territoriality of Criminal Law, according to which a State will not apply its penal statutes to acts committed outside its boundaries except where the protection of special national interests is at stake. Because of the solidarity of nations in the repression of criminality, however, a State, though refusing to impose direct penal sanctions to offences committed abroad, is usually willing to cooperate otherwise to bring the perpetrator to justice and ensure that they don’t go unpunished.
Under International law, extradition is a formal, diplomatic process by which one State requests another to effect the return of custody of a fugitive criminal for crimes punishable by the laws of the requesting State and committed outside the country’s jurisdiction such person has taken refuge. International extradition is an obligation undertaken by States in good faith to promote and execute justice.
It is widely acknowledged that the Government of India in recent years, has taken a stricter stance against economic offenders fleeing to foreign jurisdictions to evade criminal prosecution and to enjoy the fruits of their crimes. The GOI has made concerted efforts to increase the number of countries with extradition treaties, including with Afghanistan, Lithuania, Malawi and Morocco. The enforcement agencies such as the Central Bureau of Investigation and Enforcement Directorate have also taken an active interest in pursuing economic offenders to foreign shores through the mechanism of extradition.
BASIC PRINCIPLES THAT GOVERN EXTRADITION:
Principle of the relative seriousness of the offence: Extradition is usually permissible only for relatively more severe violations, and not for trivial misdemeanours or petty crimes. For example, the extradition treaty between US and India permits extradition only for those offences which are punishable with more than one year of imprisonment.
Principle of Dual Criminality: This principle requires that the offence that the fugitive is alleged to have committed, should be an offence both in the requesting and the requested State.
Existence of a Prima Facie case against the Fugitive: This principle ensures that there is an existence of a triable issue against a fugitive by mandating a magisterial inquiry to precede the actual extradition. If the case lacks merit on its face, extradition may be disallowed at the very outset.
Rule of Specialty: that is to say, when a fugitive is extradited for a particular crime, he can be tried only for that crime. If the requesting State deems it desirable to test the extradited fugitive for some other offence committed before his extradition, then a new extradition request must be granted.
INDIAN EXTRADITION ACT, 1960:
Extradition is often a complicated process and usually involves navigating the relevant extradition treaties or extradition arrangements, as well as the domestic laws of the country which receives the extradition request (“Requested State”) from the Government seeking extradition (“Requesting State”) of the accused or convicted individual (“Requested Person”). India has extradition treaties with 50 countries and extradition arrangements with 11 countries. Extradition treaties are bilateral treaties that provide a defined legal framework and obligate the contracting states to extradite to each other, accused, charged with or convicted of extraditable offences. On the other hand, extradition arrangements are non-binding and do not carry legal obligations on the party states.
In India, the extradition of a fugitive from India to a foreign country or vice-versa is governed by the Indian Extradition Act, 1962. Under Section 3 of the Act, a notification could be issued by the Government of India extending the Act’s requirements to the countries notified. Section 3(4) of Act covers Extradition instances with States with whom India does not have an Extradition Treaty. Under such circumstances, ad hoc arrangements can be entered into between the State parties to seek extradition. Factors that affect the grant of request include the extent of diplomatic ties between the States and the requested State’s legal system.
EXTRADITION TREATY BETWEEN INDIA AND UK:
THE EXTRADITION TREATY, 1992
The Extradition Treaty between the UK and India was signed on 22 September 1992 and was ratified on 15 November 1993. It provides that both countries will extradite individuals who have committed ‘extradition offences’ that are constituted by conduct, under the laws of the UK and India’s countries is punishable for at least one year. That is, both the components of Dual-criminality and minimum punishment was included in the treaty.
The Extradition Treaty also provides certain exceptions where extradition may be refused including where (i) the offences are political; (ii) the Requested Person can satisfy the Requested State that, his extradition is being sought to prosecute or punish him on account of his race, religion, nationality or political opinions; or (iii) the offence carries the death penalty in the Requesting State, to name a few. Since extradition may be refused on these grounds, they are often incorporated in defence of Requested Persons resisting extradition.
THE EXTRADITION ACT, 2003
The Extradition Treaty provides the broad framework that governs the extradition between India and the UK. The relevant domestic UK law that governs extradition proceedings is the Extradition Act. The procedure provided under the Extradition Act differs depending on whether the Requesting State is a category one country (European Union member states) or category two-country (other countries with which the UK has an extradition treaty). India is a category two-country, and therefore, Part 2 of the Extradition Act applies to India’s extradition requests. As a category two-country, India’s extradition request requires a decision from both the Secretary of State and the Court.
Prima Facie Requirement:
The prima facie requirement is not a prerequisite for European Union member states and category 2A territories. However, India is a category 2B territory. Hence, in a case where the Requested Person has not been convicted, the Magistrate Court is required to decide whether there is enough admissible evidence to satisfy the prima facie test that there is a case to answer and that a trial of the Requested Person would be required had the offence taken place in the UK.12 To determine whether there is a prima facie case, the Requesting State must identify the notional offence under the UK law which corresponds to the extradition offence for which the Requesting State is seeking the Requested Person’s extradition.
Bars to Extradition:
The Extradition Act bars the extradition of a Requested Person in certain circumstances, even if there is no corresponding bar under the Extradition Treaty. If the Magistrate Court determines that any of the statutory bars to extradition apply, the Requested Person must be discharged. Consequently, these are often the grounds that are taken in defence of Requested Persons. Some of the statutory bars to extradition include, amongst others, the following:
Double Jeopardy: where the Requested Person would be entitled to be discharged under any rule of law relating to previous acquittal or conviction assuming charged him with the extradition offence in the part of the UK where the judge exercises his jurisdiction;
Extraneous Considerations: where the extradition of the Requested Person is barred because (a) the request for his extradition is made to prosecute or punish him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or (b) if extradited the Requested Person might be prejudiced at his trial or punished, detained or restricted in his personal liberty because of his race, religion, nationality, gender, sexual orientation or political opinions;
Passage of Time: It would be unjust or oppressive to extradite him because of the passage of time that has passed since the offence or since the person has been unlawfully at large.
While deciding whether a Requested Person may be extradited, the Magistrate Court must also consider whether or not extradition would be permissible in terms of the same not violating the Requested Person’s Convention Rights as defined under the Human Rights Act, 1988 (UK) which include the right to a fair trial, prohibition of torture or degrading treatment etc. In case the Magistrate Court determines that the extradition of the Requested Person would violate these rights, then it cannot order the extradition.
LETTERS OF ASSURANCE:
Suppose there is evidence that there is a real risk of impermissible treatment that bars the Requested Person’s extradition. In that case, a Requesting State may overcome this hurdle by issuing a letter of assurance. Letters of guarantees provide a diplomatic warranty that the Requested Person will not be exposed to such a risk and will be held in particular conditions, thus reducing the perceived threat.
In the infamous extradition case of Sanjeev Chawla, who was allegedly involved in match-fixing, one of the primary concerns raised by the accused was concerning the horrendous prison conditions of Tihar Jail and how this was not compatible with his right guaranteed by Article 3 of the ECHR, i.e. prohibition of torture and degrading treatment. In response to this objection, the GOI had to provide multiple letters giving specific assurances regarding the prison condition to his unique accommodation and prompt availability of medical facilities, only after which the UK High Court approved his extradition.
ADVENTURES OF THE VIJAY MALLYA CASE:
The GOI submitted an extradition request on 9 February 2017 seeking the extradition of Vijay Mallya about his involvement in banking fraud and for the commission of the offences of cheating and criminal conspiracy under the IPC read with violations under the Prevention of Corruption Act, 1988 and Prevention of Money Laundering Act, 2002 which corresponded to the notional UK offences of ‘conspiracy to defraud‘, ‘making false representations‘, ‘diversion and dispersal of the proceeds of lending‘ and ‘money laundering‘.
In his defence, he argued that the GOI failed to establish a prima facie case. Furthermore, he contended that his extradition was being sought for extraneous considerations, namely his political opinions. Mallya also argued that barred his extradition since the same was not compatible with his Convention rights within the Human Rights Act’s meaning. That is, there would be a risk to his right to a fair trial (Article 6) and the prohibition of torture (Article 3). The Magistrate Court held that there was a prima facie case and that the GOI’s evidence, including the witness statements under Section 161 of the CrPC, were admissible. The Magistrate Court also accepted the assurances given by the GOI concerning prison conditions. It held that there were no grounds for believing that the Requested Person would face a real risk of being subjected to treatment contrary to Article 3. The Secretary of State approved Mallya’s extradition.
Mallya sought leave to file an appeal to the High Court against the decisions of the Magistrate Court and the Secretary of State under various grounds. However, the High Court rejected his contentions, and it upheld the conclusions made by the Magistrate Court. He also sought leave to file an appeal before the Supreme Court which was dismissed on 14 May 2020. Consequently, unless Mallya can secure relief from the European Court of Human Rights, India’s extradition is now imminent.
In light of the recent verdicts, one can conclude that the UK has placed its trust in the Indian Government and has successfully upheld its International obligations. However, these cases also emerge from these cases because, when facing extradition to India, Requested Persons will commonly take up similar human rights and prison conditions as many defences. This makes it imperative that India lives up to its letter of assurances to ensure that the UK and other jurisdictions continue to have confidence in India.
Today, extradition is an invaluable process to bring back those accused of corruption and financial crimes to stand trial and answer for their offences. Even though it is a laborious, time consuming process, eventually subjective to the benevolence of a foreign government – extradition is the only way to bring back the accused persons evading the grip of justice.