EXTRADITION LAWS IN INDIA

Reading time : 8 minutes

INTRODUCTION

Imagine yourself as the leader of a nation. Three weeks ago in a foreign country, Mrs. X, a national of that country, took part in the murder of her own father. Sometime later Mrs. X escapes from jail and flees to your country, where she begins taking part in various illegal activities. After being captured for violating the laws of your country, Mrs. X’s country immediately requests her return.[1] In such cases should extradition be granted or denied?

This scenario is based on the case of Josette Bauer, who was extradited by the United States to Switzerland in 1981.[2] It illustrates the various questions nations must face when deciding whether to grant final surrender of a fugitive criminal. As the scenario indicates, there are no easy answers – a myriad of political, social and judicial factors play a crucial role in shaping the final outcome.

The increase in crime across the border as led to the need for extradition laws. In  such cases the fugitive criminal commits the crime in the foreign state or land and tries to escape from trial.

EXTRADITION

Extradition has been derived from two Latin words ex and traditium. It means ‘delivery of criminals’, ‘surrender of fugitives’ or ‘handover of fugitives’. Extradition is a formal process by which one state requests another to  surrender an individual or fugitive offender for trial or prosecution of a crime. The Hon’ble Supreme Court  defines extradition as the delivery on the part of one State to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and are justifiable in the Courts of the other State. Extraditable persons may include those charged with a crime but not yet tried, those tried and convicted who have escaped custody, and those convicted in absentia. Those crimes must be punishable by law in the requesting state and committed outside the state of refugee. It  is necessary that the two countries must have entered into the Extradition Treaty. Although states may extradite without a treaty but those cases are rare.

The first act providing for extradition was adopted in 1833 by Belgium, which also passed the first law on the right to asylum. Extradition acts specify the crimes that are extraditable, clarify extradition procedures and safeguards, and stipulate the relationship between the act and international treaties. National laws differ greatly regarding the relationship between extradition acts and treaties. In the United States, extradition may be granted only pursuant to a treaty and only if Congress has not legislated to the contrary, a situation that also exists in Britain, Belgium, and the Netherlands. Germany and Switzerland extradite without a formal convention in cases where their governments and the requesting state have exchanged declarations of reciprocity. Although there has been a long-standing trend toward denying extradition requests in the absence of a binding international obligation, fugitives are sometimes surrendered by states on the basis of municipal law, or as an act of goodwill.[3]

PRINCIPLES OF EXTRADITION

  1. Principle of Relative Seriousness of an Offence

A person cannot be extradited for a mere offence. It is allowed only for the serious offences. For example, according to the extradition treaty between India and USA treaty, extradition is granted only for the offence punishable with more than one year of imprisonment.

  • Principle of Dual Criminality

According to the principle of dual criminality, the act for which the offender has been extradited must be an offence in both the state (the requesting state and the state requested). If a request is initiated against an offender but that particular offence is not a crime in that other state , the state has right to deny the extradition considering the fact that the offence of non- criminal nature.

Illustration

A has committed an offence of theft in the state of B. A flew away to his state Z with the entire stolen amount. In the state of B, theft is considered to be a punishable offence but on the other hand state Z has not such laws on theft. Therefore, in this case state Z has right to deny the request of extradition by state B.

  • Principle of Specialty

According to the principle of specialty, the extradited person can be prosecuted only for the offence for which the extradition request has been granted. A person cannot be prosecuted for any other offence other than one for which the extradition was granted.

Illustration

A has committed an offence of theft and murder in the state of B. A flew away to his state Z with the entire stolen amount. The extraction request of A has been granted by the state Z only for theft. Therefore, A can be prosecuted only for theft not for murder by state B.

  • Exception for Political and Military Offences

Extradition would not be granted for political or military offences. The term “political offence” has not been yet defined in international laws yet it can be considered as the domestic laws of requested state. However the act of terrorism committed with political motive and other violent crimes does not fall under this exception.

INDIAN EXTRADITION LAWS

In India, the extradition of a fugitive criminal is governed under the Indian Extradition Act, 1962. This is for both extraditing persons to India and from India to foreign countries. The basis of the extradition could be a treaty between India and another country. According to section 2 (c) of The Indian Extradition Act, 1962, “extradition offence” means―

(i) in relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty with that State;

(ii) in relation to a foreign State other than a treaty State 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;[4]. This means that the offence must be provided in the extradition treaty and should be punishable with less than one year of imprisonment.  The foreign state has been defined under section 2 (e) of The Indian Extradition Act, 1962. It states that “foreign State” means any State outside India and includes every constituent part, colony or dependency of such State;[5]. A fugitive criminal may be “a wanted person” who have been accused or convicted of a crime and is hiding from the law enforcement. Section 2 (f) of the act defines “fugitive criminal” means a person who is accused or convicted of an extradition offence within the jurisdiction of a foreign State and includes a person who, while in India, conspires, attempts to commit or incites or participates as an accomplice in the commission of an extradition offence in a foreign State;[6]. It can be applied to anyone who conspires, attempts to commit, incites or participate in such extradition offence in foreign state. Extradition can be initiated in the case of under-investigation, under-trial and convicted criminals.  In cases under investigation, abundant precautions have to be exercised by the law enforcement agency to ensure that it is in possession of prima facie evidence to sustain the allegation before the Courts of Law in the Foreign State. Consular, Passport and Visa Division of the Ministry of External Affairs, administers the Extradition Act and it processes incoming and outgoing Extradition Requests.[7]

In May 2011, the Indian Government ratified two UN Conventions – the United Nations Convention against Corruption (UNCAC) and the United Nations Convention against Transnational Organised Crime (UNCTOC) and its three protocols.[8]

EXTRADITION TREATY

According to Section 2(d) of The Indian Extradition Act, 1962 , an extradition treaty” 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;” [9]  Extradition treaties are traditionally bilateral in character. The extradition applies only to such offences which are mentioned in the treaty. It applies the principle of dual criminality which means that the offence sought to be an offence in the national laws of requesting as well as requested country. The requested country must be satisfied that there is a prima facie case made against the offender. The extradition should be made only for the offence for which extradition was requested. The accused must be provided with a fair trial. [10] The legal basis for Extradition with States with whom India does not have an Extradition Treaty (non-Treaty States) is provided by Section 3(4) of the Indian Extradition Act, 1962, which states that the Central Government may, by notified order, treat any convention to which India and a foreign state are parties, as an Extradition Treaty made by India with that foreign state providing for extradition in respect of the offences specified in that Convention. India is also a party to the 1997 International Convention for the Suppression of Terrorist Bombings. This also provides a legal basis for Extradition in Terror Crimes.[11]

Currently India has an Extradition Treaty with more than 40 countries. Recently the extradition of Nirav Modi has been approved by U.K.

EXTRDITION TREATY BETWEEN INDIA AND UK

According to Article 1 of the Extradition Treaty between India and the UK, it is the duty of India and the UK to extradite any person being accused or convicted of an extradition offence committed within the territory of one State either before or after the entry into force of this Treaty. Each contracting state shall afford each other mutual assistance in criminal matters.[12]

An extradition offence is defined as one that is punishable under the laws of both the contracting States by a term of imprisonment for a period of at least one year, excluding offences of political character but including offences wholly related to fiscal character or serious offences like murder, causing explosion, terrorism etc. The request for extradition could be refused if the person is being tried for the extradition offence in the courts of the requested State or if the accused satisfies that the prosecution in the requested State is unjust, oppressive, prejudiced, or discriminatory. Where the request is for a person already convicted, then a certificate of conviction is necessary. In urgent cases, the person may be provisionally arrested by the requested State till his extradition request is processed. However, he may be set at liberty after the expiration of 60 days from the date of arrest if his extradition request has not been received. Once a person is extradited to the requesting State, he can only be prosecuted for the offence requested, any lesser offence or any offence consented to by the requested State within a period of 45 days. Extradition may be refused for an offence involving the capital punishment in the requesting State whereby no death penalty is given in the requested State for the same offence. After extradition is granted, the requested State shall surrender the accused at an indicated point, or the requesting State shall remove the person from the territory within one month or as specified.[13]

PROCESS OF EXTRADITION

  1. Receipt of Information

The process of extradition is set into motion by the receipt of Information/Requisition regarding fugitive criminals wanted in foreign countries. This information may be received-

Directly from diplomatic channels of the concerned country (along with the necessary information relating to the offence and the fugitive); or

General Secretariat of ICPO-Interpol in the form of red notices;

Others settled modes of communication.[14]

  • Magisterial Inquiry

Where a requisition is received, the Central government may order an inquiry by a magistrate directing him to enquire into the case. The initial inquiry by the Central government before ordering a magisterial inquiry need not be a detailed one. No pre-decision hearing is required to be given to the fugitive before ordering magisterial enquiry. The function of the magistrate under this section is quasi judicial in nature. The magistrate directed to proceed with the enquiry need not have territorial jurisdiction. On receipt of orders, the Magistrate shall issue a warrant of arrest of the fugitive criminal. Once the fugitive criminal appears, or is brought before Magistrate pursuant to the warrants, the magistrate enquires into the case.[15]

NIRAV MODI CASE

Nirav Modi is a luxury diamond jeweler and designer who was ranked 57 in the Forbes list of billionaires in 2017. He is also the founder of the Nirav Modi chain of diamond jewellery retail stores. Modi is the Chairman of Firestar International, the parent of the Nirav Modi chain, which has stores in key markets across the globe. He has 16 stores in diverse locations such as such as Delhi, Mumbai, New York, Hong Kong, London and Macau.

PNB Scam

The Punjab National Bank scam relates to fraudulent letter of undertaking worth Rs 10,000 crore issued by the bank. The key accused in the case were jeweler and designer Nirav Modi, his maternal uncle Mehul Choksi, and other relatives and some PNB employees. Nirav Modi and his relatives escaped India in early 2018, days before the news of the scam became public. PNB scam has been dubbed as the biggest fraud in India’s banking history.

PNB employees misused the SWIFT network to transmit messages to Allahabad Bank and Axis Bank on fund requirement. While all this was done using SWIFT passwords, the transactions were never recorded in the bank’s core system — thereby keeping the PNB management in the dark for years.

On 29 January 2018, PNB lodged a FIR with CBI stating that fraudulent LoUs worth Rs 2.8 billion (Rs 280.7 crore) were first issued on 16 January. In the complaint, PNB had named three diamond firms, Diamonds R Us, Solar Exports and Stellar Diamonds. As of 18 May 2018, the scam has ballooned to over Rs 14,000 crore. [16]

Current Scenario

United Kingdom’s Home Secretary Priti Patel has approved the extradition of fugitive offender Nirav Modi in April. India and the UK entered into anextradition treaty in 1992. Nirav Modi, a diamond merchant to India has been accused of being the principal beneficiary of the fraudulent issuance of letters of undertaking for defrauding the Punjab National Bank (PNB) to the extent of Rs 13,570 crore. The celebrity jeweler has been in the Wandsworth Prison since he was arrested on March 19, 2019 from a metro station in London on an extradition warrant executed by Scotland Yard and his attempts at seeking bail have been repeatedly turned down.[17] Nirav Modi has filed an appeal in the High Court of UK against extradition to India. The High Court of UK has refused to accept his application. Nirav is facing two sets of criminal proceedings, with the CBI case relating to PNB fraud through the fraudulent obtaining of letters of undertaking and the ED case relating to the laundering of the proceeds from that fraud.[18]

FUGITIVE ECONOMIC OFFENDERS ACT, 2018

The Fugitive Economic Offenders Act, 2018 states that the act provides “measures to deter fugitive economic offenders from evading the process of law in India by staying outside the jurisdiction of Indian courts, to preserve the sanctity of the rule of law in India and for matters connected therewith or incidental thereto.”[19]  Section 2 (f) of the act defines fugitive economic offender. It says “fugitive economic offender” means any individual against whom a warrant for arrest in relation to a Scheduled Offence has been issued by any Court in India, who—

has left India so as to avoid criminal prosecution; or (ii) being abroad, refuses to return to India to face criminal prosecution;[20] A person against whom an arrest warrant has been issued for committing an offence listed in the Act must have committed the offence of the value of at least Rs.100 crore and has left the country and refuses or avoids criminal prosecution. There are total 55 economic offences included in the act. Some are-  

  • Cheque dishonour.
  • Counterfeiting government stamps or currency.
  • Money laundering.
  •  benami transactions
  •  tax evasion
  • Transactions defrauding creditors.

To declare a person an FEO, an application will be filed in a Special Court (designated under the Prevention of Money-Laundering Act, 2002) containing details of the properties to be confiscated, and any information about the person’s whereabouts.[21]  After hearing the application, a special court (designated under the PMLA, 2002) may declare an individual as a fugitive economic offender. It may confiscate properties which are proceeds of crime, Benami properties and any other property, in India or abroad. Upon confiscation, all rights and titles of the property will vest in the central government, free from encumbrances (such as any charges on the property). The central government may appoint an administrator to manage and dispose of these properties.[22] The offender or any associated company or firm is barred from filing or defending any civil claims.

The authorities under the PMLA (Prevention of Money Laundering Act), 2002 will exercise powers given to them under the Fugitive Economic Offenders Act. These powers will be similar to those of a civil court, including the search of persons in possession of records or proceeds of crime, the search of premises on the belief that a person is an FEO and seizure of documents.

VIJAY MALLYA CASE

Vijay Mallya is an Indian businessman at present fighting extradition from the UK. Mallya, who owes 17 Indian banks an estimated Rs 9,000 crore, is accused of fraud and money laundering in the country.

 Also a former Rajya Sabha member, Mallya is the ex-chairman of United Spirits. He currently continues to serve as chairman of United Breweries Group. Previously, he also served as chairman of Sanofi India and Bayer CropScience, among other companies.  Of all his businesses, Vijay Mallya’s name is most closely associated with now defunt Kingfisher Airlines. The airline company, launched in 2005, proved to be his undoing, as its business model floundered in 2008, when a global recession and soaring fuel prices brought it to a grinding halt. Facing heat from lenders following the collapse of the airline, Mallya fled to the UK in 2016. Mallya has publicly offered to make good on his debts and said he has been doing so since 2016.[23] Mallya has been based in the UK since March 2016 and remains on bail on an extradition warrant executed three
years ago by Scotland Yard.[24]

Allegations

Mallya has denied all allegations and publicly offered to repay the full principal amount he owes the lenders. Just before leaving the country in 2016, Mallya wrote an open letter defending himself. “All enquiries conducted have failed to find evidence of misappropriation of funds by Kingfisher Airlines or myself,” Mallya said. “Despite pledging blue-chip securities and depositing significant amounts in court, a successful disinformation campaign has ensured my becoming the poster boy of all bank NPAs.”

How Mallya became a fugitive economic offender?

Mallya inherited UB Spirits, known for the Kingfisher beer brand, from his father and turned it around into India’s biggest spirits maker. He became the chairman of UB Group at the age of 28. However, most other businesses of the group were not as successful, Kingfisher Airlines being the biggest failure. Started in 2005, Kingfisher Airlines was grounded in 2012 after a burgeoning debt burden made it impossible for the beleaguered airline to continue operations. The airline is also being investigated for suspected diversion of funds and financial irregularities. Mallya left the country on March 2, 2016, the day a clutch of public-sector banks moved the Debt Recovery Tribunal against him. In January 2019, he was declared a fugitive economic offender under the Fugitive Economic Offenders Act.

What next?

The Indian government is making all efforts to extradite Mallya from the UK. In February 2019, UK Home Secretary approved the extradition. The case is now pending in the London High Court, where Mallya filed an appeal against the order.[25]

CONCLUSION

Despite the extensive statutory framework and working machinery in place to extradite persons from abroad into India, only 65 fugitives have been extradited to India since the year 2002[26] and it is evident that the surrender process is quite cumbersome and tedious, often taking years to complete and, in some cases, they even remain unsuccessful. Needless to say, it enables the fugitive criminals accused of offences in India, to evade arrest and prosecution for years on end. The Ordinance is a step in the right direction but the long term benefits of the Ordinance and its ability to encourage the foreign States to extend cooperation to India to expedite the extradition process remains to be seen.[27]

Crime at international level is increasing day by day. Extradition law helps in preventing the person who has committed the crime outside the state of refugee and is from escaping the trial. Each country has its own extraction laws and has been mentioned in international laws too. These laws are necessary to create deterrence and maintain law and orders throughout the world.

REFERENCES

·       Faraz Alam Sagar & Pragati Sharma , “Extradition Laws:Fundaments and Processes- Part 1” , India Corporate Law,A Cyril Amarchand Mangaldas Blog, available at:

·       Nirav Modi’s plea against Extradition to India turned down by UK High Court, available at: https://www.latestlaws.com/latest-news/nirav-modi-s-plea-against-extradition-to-india-turned-down-by-uk-high-court/

·       Business Standard, “What is PNB Scam”, available at: https://www.business-standard.com/about/what-is-pnb-scam

·       The Fugitive Economic Offenders Act, 2018

·       https://www.drishtiias.com/daily-updates/daily-news-analysis/fugitive-economic-offenders-act-2018

·       India: Indian Extradition Law – Process For Seeking Extradition Of Persons From Foreign States, available at: https://www.mondaq.com/india/crime/710482/indian-extradition-law-process-for-seeking-extradition-of-persons-from-foreign-states


[1] ROBERT HERBERT WOODS, JR., VOL.3:43,  REGENT UNIVERSITY LAW REVIEW, available at: https://www.regent.edu/acad/schlaw/student_life/studentorgs/lawreview/docs/issues/v3/3RegentULRev43.pdf

[2] In re GEISSER, 627 F.2d 745, 746 (5th Cir. 1980).

[3] Extradition, available on: https://www.britannica.com/topic/extradition

[4] The Indian Extradition Act, 1962

[5] The Indian Extradition Act, 1962

[6] The Indian Extradition Act, 1962

[7] Extradition, available at : https://www.drishtiias.com/daily-updates/daily-news-analysis/extradition-4

[8]  Faraz Alam Sagar & Pragati Sharma , “Extradition Laws:Fundaments and Processes- Part 1” , India Corporate Law,A Cyril Amarchand Mangaldas Blog, available at:

[9] The Indian Extradition Act, 1962

[10] Extradition, available at : https://www.drishtiias.com/daily-updates/daily-news-analysis/extradition-4

[11] https://www.mea.gov.in/extraditionguidelinesabroad.htm

[12] Extradition Treaty between the Government of the Republic of India and the Government of the United Kingdom of Great Britain and Northern Ireland, signed September 22, 1992, ratified November 15th, 1993.

[13] Faraz Alam Sagar & Pragati Sharma , “Extradition Laws:Fundaments and Processes- Part 1” , India Corporate Law,A Cyril Amarchand Mangaldas Blog, available at: https://corporate.cyrilamarchandblogs.com/2019/08/extradition-law-fundamentals-processes-part1/

[14] Avneetkalra, “Extradition”, http://www.legalserviceindia.com/legal/article-1241-extradition.html

[15] Avneetkalra, “Extradition”, http://www.legalserviceindia.com/legal/article-1241-extradition.html

[16] Business Standard, “What is PNB Scam”, available at: https://www.business-standard.com/about/what-is-pnb-scam

[17] https://www.latestlaws.com/latest-news/pnb-fraud-case-uk-govt-approves-extradition-of-fugitive-economic-offender-nirav-modi/

[18] https://www.latestlaws.com/latest-news/nirav-modi-s-plea-against-extradition-to-india-turned-down-by-uk-high-court/

[19] The Fugitive Economic Offenders Act, 2018

[20] The Fugitive Economic Offenders Act, 2018

[21] https://prsindia.org/billtrack/the-fugitive-economic-offenders-bill-2018

[22] https://www.drishtiias.com/daily-updates/daily-news-analysis/fugitive-economic-offenders-act-2018

[23] Business Standard, “who is Vijay Mallya”, available at: https://www.business-standard.com/about/who-is-vijay-mallya

[24]  https://economictimes.indiatimes.com/news/india/extradition-of-vijay-mallya-nirav-modi-figures-in-india-uk-virtual-summit/articleshow/82392122.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

[25] Business Standard, “who is Vijay Mallya”, available at: https://www.business-standard.com/about/who-is-vijay-mallya

[26] Guidelines are available at http://www.mea.gov.in/extraditionguidelinesabroad.htm.

[27] India: Indian Extradition Law – Process For Seeking Extradition Of Persons From Foreign States, available at: https://www.mondaq.com/india/crime/710482/indian-extradition-law-process-for-seeking-extradition-of-persons-from-foreign-states

Author: Archita Ranjan, Apeejay Stya University

Editor: Kanishka VaishSenior Editor, LexLife India.

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