Article By Nisha Kumawat 5th Year Law student at PIMR Department Of Law Indore
Extradition
Britannica defines “extradition” as “the process by which one state, upon the request of another, effects the return of a person for trial for a crime punishable by the laws of the requesting state and committed outside the state of refuge.”
Supreme Court defined 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.
Legislative Basis for Extradition in India
The Extradition Act 1962 provides India’s legislative basis for extradition. To consolidate and amend the law relating to the extradition of fugitive criminals and to provide for matters connected therewith, or incidental thereto, the Extradition Act of 1962 was enacted. It consolidated the law relating to the extradition of criminal fugitive from India to foreign states. The Indian Extradition Act, 1962 was substantially modified in 1993 by Act 66 of 1993.
Extradition Treaties
Section 2(d) of Extradition Act 1962 defines an ‘Extradition Treaty’ as 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.
Extradition treaties are traditionally bilateral in character. Yet most of them seem to embody at least five principles, as endorsed by many judicial pronouncements and state practice in respect of domestic extradition legislation
- First, the principle of extraditable offences lays down that extradition applies only with respect to offences clearly stipulated as such in the treaty;
- Second, the principle of dual criminality requires that the offence for which the extradition is sought be an offence under the national laws of the extradition requesting country as well as of the requested country;
- Third, the requested country must be satisfied that there is a prima facie case made out against the offender/accused;
- Fourth, the extradited person must be proceeded against only against the offence (rule of speciality) for which his extradition was requested; and
- Finally, he must be accorded a fair trial (this is of course part of international human rights law now). Judiciary and other legal authorities are likely to apply these principles equally to situations where no extradition treaty exists.
Principle of Double Criminality
The principle of dual criminality is the essence of extradition. It implies that a crime for which extradition is being sought must be a crime in both the requesting and the requested country. Any extradition treaty being entered into between India and any foreign State requires the principle of double criminality to be satisfied before granting extradition requests. Specifically, the substance and elements of the offence are of utmost importance when an extradition treaty has to be signed.
Extradition Offence – The Act, under section 2(c), provides the definition of “extradition offence”.
In relation to a State with which an extradition treaty has been signed, extradition offence is an offence provided for in the extradition treaty with that State.
In relation to a State with which an extradition treaty has not been signed, extradition offence is an offence punishable with imprisonment for a term which is not less than one year under the laws of India or of a foreign State. This also includes a composite offence.
Composite Offence – Composite offence, under section 2(a), is an offence from an act or conduct, which has occurred wholly or partially in India or in a foreign State, but when its effects or intended effects are taken as a whole, they constitute an extradition offence in India or in that foreign State.
Section 34 of the Act stipulates that an extradition offence committed by a person in a foreign country is deemed to have been committed in India and that person is liable to be prosecuted in India for that offence.
In cases where no extradition treaty exists with a foreign country, the Central Government may deem any international convention to which India and that country are common parties as an extradition treaty for the offences specified in that convention. For example, India is party to International Convention for the Suppression of Terrorist Bombings, United Nations Convention against Transnational Organised Crime and its three protocols, and the United Nations Convention against Corruption. As such, India can extradite an offender taking refuge in a country which is party to any of these conventions.
A fugitive criminal may be extradited. A fugitive criminal as Per S.2(f) is a person who:
Who is accused or convicted of an extradition offence committed within the jurisdiction of a foreign state; .
If a person is participating in the commission of an offence in a foreign state from within the shares of India then he is also liable to be extradited and is included within the expansive definition of a ‘fugitive criminal‘. S.2(f) of the Extradition Act further applies to :
a person who, while in India:
- conspires,
- attempts to commit
- incites
- participates – as an accomplice in the commission of extradition offence in a foreign state.
Therefore, a person in India, attempting/conspiring/abetting the commission of the offence from within the shores of India, is also covered in the definition of a ‘fugitive criminal’ and liable to be extradited.
Extradition Treaties between India and Other States
The Ministry of External Affairs (MEA) on behalf of the Government of India acts as the central authority with regards to extradition treaties, arrangements and requests.
As per section 3 of the Extradition Act, the Central Government may issue a notification to extend the provisions of the Act to the country or countries notified.
According to the MEA, India has signed extradition treaties with 47 nations and has extradition arrangements with 11 nations.
Nodal authority for Extradition in India
CPV Division, Ministry of External Affairs, Government of India is the Central/Nodal Authority that administers the Extradition Act and it processes incoming and outgoing Extradition Requests.
Bars to Extradition
An alleged offender may not be extradited to the requesting state in the following cases:
- No treaty – In absence of a treaty, States are not obligated to extradite aliens/nationals
- No treaty crime – Extradition is generally limited to crimes identified in the treaty which may vary in relation to one State from another, as provided by the treaty.
- Military and Political Offences – Extradition may be denied for purely military and political offences. Terrorist offences and violent crimes are excluded from the definition of political offences for the purposes of extradition treaties.
- Want of Dual Criminality – Dual criminality exists when conduct constituting the offence amounts to a criminal offence in both India and the foreign country.
- Procedural considerations – Extradition may be denied when due procedure as required by the Extradition Act of 1962 is not followed.
Process of Extradition
- 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;
Other settled modes of communication.
- Magisterial Inquiry
Where a requisition is received, the Central government may order an enquiry 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-decisional 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 order, 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 inquiries into the case.
Considerations to Be Kept In Mind By The Central Government While Deciding Question Of Surrender/Extradition And Restrictions On Exercise Of Such Power.
- As per Section 31, A fugitive criminal shall not be surrendered or returned if:
- the offence complained of by the foreign state, is of a political character, directly, or his requisition/warrant, is made for an apparently non-political offence, merely as subterfuge to in fact punish him for an offence of Political Character (Schedule to the Extradition gives a list of offences, which are not to be regarded as offences of a political character for the purposes of the Act);
- prosecution of the offence is time barred in the foreign state;
- he/she is accused of any offence in India other than the offence for which the extradition is sought;
- he/she is undergoing sentence under any conviction in India;
- until expiration of 15 days from the date of his being committed to prison by magistrate (post inquiry u/s 5 of the Act)
Vijay Mallya Case:
The GOI submitted an extradition request on 9 February 2017 seeking the extradition of Dr. Vijay Mallya in relation to his involvement in a banking fraud and for the commission of the offences of cheating and criminal conspiracy under the IPC read with offences 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, Dr. Mallya 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. Dr. Mallya also argued that his extradition was barred since the same was not compatible with his Convention rights within the meaning of the Human Rights Act. Specifically, Dr. Mallya argued that there would be a risk to his right to a fair trial (Article 6) and prohibition of torture (Article 3).
Dr. Mallya also made detailed arguments objecting to the admissibility of the GOI’s evidence including witness statements under Section 161 of the Code of Criminal Procedure, 1973 (“CrPC“). Dr. Mallya relied upon the evidence of several experts including a report prepared by Dr. Alan Mitchell regarding prison conditions (this expert also provided evidence during Mr. Chawla’ extradition hearing). For its part, aside from placing on record substantial evidence in support of its allegations, the GOI also gave a number of assurances regarding prison conditions.[1]Decision of Westminster Magistrates’ Court in The Government of India vs. Vijay Mallya dated 10th December 2018
The Magistrate Court held that that there was a prima case that Dr. Mallya had committed the offence of conspiracy to defraud and conspiracy to launder money. It did not find any evidence to support Dr. Mallya’s contention that his extradition was being sought for the purpose of prosecuting or punishing him on account of his political opinions. The Magistrate Court also accepted the assurances given by the GOI with respect to prison conditions and 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.
Likewise, it also held that there was no evidence that Dr. Mallya was at a real risk of suffering a flagrant denial of justice in terms of Article 6. Notably, the Magistrate Court held that the witness statements under Section 161 of the CrPC were admissible. Consequently, the case was sent to the Secretary of State for a decision to be taken on whether to order his extradition. The Secretary of State approved Dr. Mallya’s extradition.
Dr. 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. Permission was refused on all grounds save one: the ground that the Magistrate Court was wrong to conclude that there was evidence “which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him“.[2]The Queen of the Application of Vijay Mallya vs Government of India & Ors [2019] EWHC 1849 (Admin)
The thrust of Dr. Mallya’s defence was that the Magistrate Court had erred in determining that the prima facie test had been satisfied and in admitting the evidence filed by the GOI. The High Court rejected both contentions, it held that the Magistrate Court was correct in determining 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 appeal was dismissed on 20 April 2020[3] The Vijay Mallya vs. Government of India & Ors [2020] EWHC 924 (Admin)..Dr. Mallya’s application seeking leave to file an appeal before the Supreme Court was dismissed on 14 May 2020. Consequently, unless Dr. Mallya is able to secure relief from the European Court of Human Rights, his extradition to India is now imminent.
Conclusion
Extradition is a great step towards international cooperation in the suppression of crime. States should treat extradition as an obligation resulting from the international solidarity in the fight against crime. With the growing internationalization of crime and judicial developments, extradition law is in a state of great flux.
This article was written by Nisha Kumawat 5th Year Law student at PIMR Department Of Law Indore. She may be reached at nishakumawat1200@gmail.com. The views and opinions expressed in the article are those of the author. They do not purport to reflect the views and opinions of Hello Counsel.
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References
| ↑1 | Decision of Westminster Magistrates’ Court in The Government of India vs. Vijay Mallya dated 10th December 2018 |
|---|---|
| ↑2 | The Queen of the Application of Vijay Mallya vs Government of India & Ors [2019] EWHC 1849 (Admin |
| ↑3 | The Vijay Mallya vs. Government of India & Ors [2020] EWHC 924 (Admin). |