“Nemo est supra legis”

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Nobody is above the law, this legal maxim gives us hope and faith in our legal system and institution of justice. The court system in our country is the custodian and guardian of our constitutional and fundamental rights, we seek their protection whenever we are in need of help and have absolute faith in it but how does this relate to the other end of the spectrum, the perpetrators who flout the law? Recent trends have shown delayed justice due to docket explosion which is the burdening of the court system due to a greater rate of institution of cases rather than disposal. This leads to a reduction in the efficacy of the judicial system and leads to postponement and extension of trials.

Criminals and perpetrators of the law have found ways to escape the clutches of the local law by fleeing to other countries and escaping the jurisdiction of the Indian Domestic law. Their retrieval is only possible through the cooperation of countries involved and their local domestic laws which is a very lengthy and technical process. Extradition is “the surrender of a criminal by a foreign state to which he has fled for refuge from prosecution to the state within whose jurisdiction the crime was committed, upon the demand of the latter state, in order that he may be dealt with according to its laws.”[1] This is the process of retrieving a criminal from another country’s jurisdiction and it requires several processes and technicalities to be fulfilled.

History of extradition and its development

Extradition as a concept can be traced back to the Eternal Treaty or the Silver Treaty which was a treaty signed between the Egyptian King Ramses II and the Hittite king, Hattusili II and this archaeological artefact still exists on display in Istanbul, Turkey.[2] A major part of the process of extradition relies on treaties between countries for the extradition of criminals from foreign jurisdictions, the earliest recorded case of extradition in Britain can be traced back to 1591, Brian O’Rourke was an Irish rebel and nobleman who fled to Scotland after allegedly committing treason against the British state. Queen Elizabeth, the monarch ruling England at the time relied on the Treaty of Berwick to obtain the custody of Brian O’Rourke. The extradition was allowed by the Scottish privy council and he was kept in custody at the Tower of London, after his trial, he was found guilty of treason and sentenced to death, he was executed in Tyburn. This set an important precedent and paved the way for extradition treaties between states.[3] Another significant treaty was the Webster-Ashburton Treaty(1842), which was an Anglo-American treaty that was instituted to address the North-East Boundary Dispute in America, this treaty provided for the surrender of offenders between Britain and America. The decision to extradite a criminal is not solely dependent on the country where the offender has been accused of committing a crime but is also the decision of the country where the alleged criminal is seeking refuge. In 1934, a court in Italy refused to surrender and extradite the assassin of Yugoslavia’s king Alexander I and the reason stated by the court for rejecting the extradition was that the crime committed was a political crime. [4]

Inception of Extradition Law in India.

  1. British India

The Extradition Act, 1870 was a legislation enacted by the Parliament of the United Kingdom. This act was instituted to extradite fugitives from and to other countries outside of British dominions, it was made applicable to India by the provision stated under section 17 of the act which states that “This Act, when applied by Order in Council, shall. Unless it is otherwise provided by such Order, extend to every British possession in the same manner as if throughout this Act the British possession were substituted for the United Kingdom or England, as the case may require…” This extended the application of the act to all British dominions and considered these dominions as an extension of Britain’s jurisdiction. [5] Another British Legislation enacted for the same purpose was The Fugitive Offenders Act, 1881[6], which regulated the extradition of fugitive offenders between the commonwealth countries, a provision for the application of this act to British possessions was mentioned under section 32 of this act. India passed its own extradition Legislation in 1903 which was the Indian Extradition Act, this act enforced and laid down the procedure that must follow in India after a request for extradition was made to India by another state. However, a treaty was required for the Extradition requisition to come into effect.[7] The Government of British India made strides in the furtherance of Extradition treaties with the autonomous Indian states and they formulated treaties with most Indian states so that criminals could be surrendered to the Government of India. The British government in India proclaimed itself as the apex power and demanded extradition of criminals from princely states even when treaties were absent.[8]

  • Post Independent India

After August 15th, 1947, India became an independent dominion of the British Commonwealth, this independence was granted to the Indian state by virtue of the Indian Independence Act, 1947. Section 7 of the Act stated that all treaties and agreements that were in force prior to the enforcement of the act were to stand null and void as the suzerainty of the British crown over the Indian states was no longer present. After the act came into force, the validity and authenticity of the treaties that existed between the British Government in India and the Princely States came into question. In the case of Ram Babu Saksena V. The state, the question before the court was whether the treaty between the state of tonk and the government of India would still be valid after the accession of the state into India. The court held that the treaty would stand void and upheld the provision under section 7 of the Indian Independence Act, 1947.[9]

On January 26th, 1950, India declared itself as a sovereign democratic republic and the princely states were all annexed and made a part of the Indian sovereign state. The Indian Territory was divided 4 categories of states; Part A states, which were governor’s provinces of British India; Part B states, which were princely states; Part C states, which consisted of the Chief Commissioner’s provinces and some princely states ;and Part D states which was the territory of Andaman and Nicobar Islands.[10] Legislations like the Indian Penal Code and the Criminal Procedure Code were extended to Part B states after the enactment of the Part B States(Laws) Act,1951, but the Indian Extradition Act, 1903 was made applicable to the whole of India with the exception of the Part B states. A Landmark judgement was pronounced in this regard in the case of The State of Madras v. C.G Menon [11], In this case the court held that the Fugitive Offenders Act, 1881 would not apply to the state of India and this effectively rendered the Indian Extradition Act, 1903 ineffective as well. This case initiated the need for a new extradition law that would govern the territory of India and also fill the various lacunae that were prevalent after the transition of British India into a sovereign Indian State.

The Extradition Act, 1962

The Extradition Act is currently the only law governing extradition in India and the application of the various treaties the sovereign state has entered into with other countries. The Act is divided into five chapters and one schedule. The contents of the act can broadly be classified into the following subheadings:-

  1. Essentials of Extradition

The essentials of extradition are the conditions that need to be fulfilled under the provisions of the act for extradition to take place. The first condition is the principle of double criminality, for a criminal to be extradited from or to another country it is important for the offender or alleged offender to be convicted or accused of a crime in the country requesting extradition. However, since the jurisdiction of the requesting country is no longer applicable to the fugitive seeking asylum in the other country, it is important for the act committed by the fugitive to be considered as a crime in the other country. This dual need for criminality is what would determine whether extradition is possible or not. [12] Under section 2(c) of the Extradition Act, 1962 an extradition offence has been defined as an offence that is provided for in the treaty if the foreign state is a treaty state and in the case of a foreign state not being a treaty state it is defined as “an offence punishable with imprisonment for a term which shall not be less than one year under the laws of India or of a foreign State and includes a composite offence”. Therefore strengthening the need for double criminality.

The second condition is the need for an act to be considered as an extraditable offence. This means that the act committed by the fugitive must be considered as an offence that is sufficient to initiate the process of extradition. The schedule in the Extradition Act, 1962 provides a list of offences that would be construed as extraditable offences which are not of political character. Throughout history, many fugitives have been given protection against extradition as the asylum state would consider the offence to be a political offence and thus would not accept the request for extradition.

The Third condition or requirement is the presence of an extradition treaty, a State can deny granting extradition of a fugitive seeking asylum if there is no extradition treaty between the requesting country and the country housing the fugitive. Extradition treaties have been defined under section 2(d)(i) of the Extradition Act,1962 and it “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”. India is therefore bound by its pre-independence extradition treaties with foreign states. [13]

Lastly, certain countries require the application of the principle of speciality to be upheld. The principle of speciality in the context of extradition means that the extradited fugitive must be punished and prosecuted for only for the offence committed and the state cannot conduct a trial and prosecute the fugitive for other offences committed by him.

  • Procedure for extradition of a criminal to India

The Indian government has forty-two bilateral Extradition Treaties with other countries and also extradition agreements with nine more countries. When an extradition treaty exists between India and the foreign country, the investigative agency, which in most cases is The Central Bureau of Investigation must file a charge sheet stating the offence committed by the fugitive and the charges that would be initiated therewith. The magistrate may take cognisance of the matter and issue an order or direction that seek the production of the accused to face trial before the court and the request is made to the Ministry of External Affairs. The magistrate must produce an affidavit that states the facts of the case, the relevant documents and evidences, provisions of law that are invoked against the accused and also the offences charged against the accused along with the sentence awarded for the offences. The final component of the extradition request is an FIR ( First Information Report) that is duly signed by the competent judicial authority.[14]

Short-comings of Extradition

Extradition as a process provides hope and faith to the citizens of a country in in the institution of justice and the efficiency of its judicial and executive system. However, this process has certain features that greatly hinder the functionality and applicability of the law. To begin with, two countries that lack any extradition treaty will have no procedure established in order to execute the extradition, countries that do not wish to extradite criminals may blatantly refuse surrendering the fugitive. This occurs mostly in cases where the criminal is a citizen of the country harbouring the fugitive. In addition to this drawback, extradition requires double criminality, if the fugitive is accused of a crime in a particular country and if he flees to another country where the act committed by him is not considered to be a crime, then the country where the fugitive is seeking asylum may blatantly refuse the extradition of the fugitive. Countries in many cases have denied extradition on the grounds that it amounts to a political crime and the country harbouring the fugitive does not wish to extradite the criminal for the same reason. A political crime has not been specifically defined and each country has a different perspective on what constitutes a political crime. Under the Extradition Act, 1962, Acts that do not amount to political crimes have been clearly defined under the Schedule of the Act. In conclusion, the last drawback faced by extradition is the possible violation of human rights. For example, if Country A is harbouring a fugitive who is guilty of committing a crime in Country B that would award death penalty for the crime, Country A would be hesitant to extradite the fugitive on humanitarian grounds. Capital punishment is not the only variable as delay in the trial procedure, conditions of prisons an also overcrowding of prisons are often considered as potential reasons for rejecting an extradition request.

Case Study- Extradition Case of Mehul Choksi

Mehul Choksi was the promoter of Gitanjali Gems and currently seeking asylum in Antigua, a country in the Caribbean. The infamous Punjab National Bank Fraud which was disclosed in 2018 was perhaps the largest economic crime the country had seen, the bank disclosed that Mehul Choksi and his nephew, Nirav Modi had defrauded the bank of a sum worth Rs, 13,400 crores. After this information was disclosed, the Central Bureau of Investigation filed a First Information Report against the pair. The bank claimed that the two fugitives had connived with former bank employee, Gokulnath Shetty. They pulled off the scam by obtaining deceitful and fraudulent Letter of Undertakings issued by the Brady House Branch of the Punjab National Bank in Mumbai and used these LOUs as a guarantee to obtain credit from overseas branches of national banks.

Mehul Choksi absconded to Antigua right before the Central Bureau of Investigation filed a First Information Report against him. In August 2018, The Ministry of External Affairs initiated a request for extradition of the fugitive from Antigua. After a lot of persuasion, the CBI was able to get INTERPOL to issue a Red Corner Notice against Choksi. Mehul Choksi surrendered his Indian Passport and acquired the citizenship of Antigua, this made the extradition far more complex as Choksi was no longer considered an Indian citizen as the constitution of India does not permit dual citizenship. [15]. The Antiguan Prime Minister in his statement has ensured that Mehul Choksi would be repatriated to India and his Antiguan passport would be revoked once he has exhausted all the legal remedies available to him in Antigua.

This case of Mehul Choksi only goes on to show the efficacy of extradition today. Mehul Choksi was captured in the Caribbean nation of Dominica which has no extradition treaty with India, therefore, he must be moved to Antigua before any hopes of his repatriation to India. The process of extradition is extremely complex and technical, the defining factor is the chain of command and the cooperation of countries that is required. Extradition is also a symbiosis of domestic, criminal and international law. If any of these aspects fail to cooperate, then the process would be far more difficult and impossible to achieve. [16]


Conclusion

India has a success rate of around 30% in extraditing criminals. This number indicates the complexity in the process and the various drawbacks associated with it. India does not have any extradition treaties with its neighbours due to various political reasons and this provides an easy escape route for many criminals. In order to become more effective at extraditing criminals, India must work on its foreign relations with other countries and also strengthen its domestic legal framework. Many fugitives cite reasons such as delay in trials or prison conditions as a plea to the country where they are seeking asylum as a measure to deter the foreign country from granting extradition. This problem can only be solved if India works towards maintaining the quality of its prisons and make it a more habitable place for the prisoners. However, recent trends have shown that india is seeking to extradite criminals more aggressively in order to bring justice to the victims. Extradition as a legal process despite its shortcomings goes on to ascertain that nobody can escape the long arms of the law.

[1] Black’s Law Dictionary (2nd Ed)

[2] https://roughdiplomacy.com/history-of-extradition/

[3] Calendar State Papers Scotland: 1589-1593, vol.10(Edinburgh, 1936)

[4] Bennet Kovrig “Mediation by Obfuscation:The Resolution of the Marseille Crisis,October 1934 to May 1935”, The Historical Journal, Volume 19, Issue 1, January 1976.

[5] 33 & 34 Vict. c. 52

[6] 44 & 45 Vict. c. 69

[7] Act No. XV of 1903

[8] Sardar K. M Panikkar, Inter-Statal Law

[9] AIR. 1950 S.C. 155

[10] Act No. 3 of 1951

[11] AIR 1954 S.C. 517

[12]  M. O. Hudson, ” The Factor Case and Double Criminality in Extradition ” (1934) American Journal of International Law

[13] J.N Saxena “The Extradition Act,1962”, The International and Comparative Law Quarterly , Jan., 1964, Vol. 13, No. 1 (Jan., 1964)

[14] https://www.mondaq.com/india/white-collar-crime-anti-corruption-fraud/834852/extradition-law-fundamentals-and-processes-part-i

[15] https://indianexpress.com/article/india/mehul-choksi-pnb-fraud-case-antiguan-citizenship-all-you-need-to-know-5798972/

[16] https://www.mondaq.com/india/human-rights/948934/india39s-recent-successes-in-extraditing-fugitives-from-the-united-kingdom

Author: P Mir Minhaaj Ahmed, CHRIST, Bengaluru

Editor: Kanishka VaishSenior Editor, LexLife India.

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