Absconding diamond merchant Mehul Choksi’s citizenship of Antigua may be revoked by the Caribbean country and he could be extradited to India after he exhausts all legal options. Choksi, 60, had taken nationality of Antigua and Barbuda in November, 2017 using Citizenship by Investment Program (CIP) of the twin island nation. He fled India in the first week of January last year, days before scam worth Rs 13,400 crore was detected and reported by state-run Punjab National Bank (PNB).
Choksi, promoter of Gitanjali Gems, and his nephew Nirav Modi, who is currently in a London jail, are wanted by the Enforcement Directorate (ED) and the CBI for allegedly masterminding the biggest banking fraud of India.
Vijay Mallya has submitted a “renewal application” in the UK High Court, making another attempt at appealing against his extradition to India to face fraud and money laundering charges amounting to Rs. 9,000 crore
WHAT IS EXTRADITION?
- Extradition is the formal process of one state surrendering an individual to another state for prosecution or punishment for crimes committed in the requesting country’s jurisdiction.
- It typically is enabled by a bilateral or multilateral treaty.
- Some states may extradite without a treaty, but those cases are rare.
DEPORTAION, EXCLUSION AND REPATRIATION
- In deportation, a person is ordered to leave a country and is not allowed to return to that country.
- In exclusion, a person is prohibited from staying in a particular part of a sovereign state
- Repatriation is the process which enables transfer of foreign prisoner to their native country where they can serve their remaining part of their sentences
Repatriation of Prisoners Act, 2003 was enacted by the Government of India with a view to help the foreign prisoners imprisoned in a jail in India or vice versa to be transferred to their native countries for serving the remaining part of their sentence in their home country.
|India’s multilateral conventions providing for Extradition
|United Nations Convention Against Corruption (2003)
|United Nations Convention against Transnational Organized Crime (2000)
|United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988)
|International Convention for the Suppression of the Financing of Terrorism (1999)
|International Convention on the Suppression of Terrorist Bombings (1997)
|Convention for the Suppression of Unlawful Seizure of Aircraft (1970)
LEGISLATIVE BASIS FOR EXTRADITION IN INDIA
- In India, the extradition of a fugitive (accused or convicted) is governed by the Extradition Act, 1962.
- The extradition of a fugitive depends upon the treaties/conventions/arrangements entered into by India with other countries. Thus, the extradition act has to be read along with the treaty/convention/arrangement that India has with other countries.
- The Ministry of External Affairs is nodal government body for extradition matters in India.
- At present, India has bilateral extradition treaties with 43 countries and extradition arrangements with 10 countries.
- Unlike treaty mechanisms, where states are obligated to consider requests for extradition, “extradition arrangements” are non-binding and do not impose any legal obligations on party states.
- India is also a party to several multilateral conventions that provide a binding extradition framework for curbing transnational crimes such as drug trafficking, terrorism and aircraft hijacking.
- Requests for surrender of fugitives can also be made to non-treaty states. These requests will be considered in accordance with laws and procedures of the foreign state, and with the assurance of reciprocity from India
BASIC PRINCIPLES GOVERNING EXTRADITION
- Principle of relative Seriousness of the offence: Extradition is usually permissible only for relatively more serious offences, and not for trivial misdemeanours or petty offences.
- Principle of Dual Criminality: This requires that the offence that the fugitive is alleged to have committed, should be an offence both in the requesting as well as the requested state.
- Principle of proportionality between offence and sentence: Requesting state should respect the principle of proportionality between offence and sentence and punishment for that particular crime should not be excessively harsh or inhuman, in which case extradition request may be declined.
- Principle of Reciprocity: Reciprocity in exchange of fugitives between requesting and requested State
- Principle of Specialty: An accused is extradited for a particular offence and the country which requests the extradition is entitled to prosecute that person only for the crime for which he was extradited i.e. he cannot be punished for any other offence but can only be punished for the offence for which he is being extradited.
WHY EXTRADITION MAKES SENSE?
Contemporary society with all its technological developments has become a play field to criminal activities. Easier transportation and communication are aiding the criminals to easily flee from the jurisdictional clutches of victim states. This increase the importance of extradition treaty/arrangements
- Sovereign constrain:Since the sovereign constraints stop the victim state to effectively exercise their jurisdiction, extradition alone offers the legal avenue to overcome the jurisdictional hardship.
- To provide justice and grievance redressal:Bringing back offenders from foreign countries is essential for providing timely justice and grievance redressal.
- Provides sense of gratification:Punishment of the criminal in the same country in which the crime is committed provides sense of gratification and security of the public of that country.
- Act as deterrence:It serves as a deterrent against offenders who consider escape as an easy way to subvert India’s justice system.
- International cooperation:Extradition is step towards the achievement of international cooperation in general required for solving international problems of a social character
Extradition is usually not granted for political offences, for nationals of the requested country; • offences where death penalty may be imposed; double jeopardy; where there could be actual or potential discrimination on account of religion, race and nationality
ISSUES WITH EXTRADITION LAW
India’s success rate in extraditing fugitives is abysmally low; only one in every three fugitives are being successfully extradited to India
- Less number of bilateral extradition treaties: India has a fewer number of bilateral extradition treaties compared to other countries. The US and the UK, for example, have extradition treaties with over 100 countries each.
- No extradition treaty with Neighbouring countries: India does not have extradition treaties with several neighbouring states, such as China, Pakistan, Myanmar and Afghanistan.
- Irregularity in Investigation: At present, multiple extradition cases is handled by CBI which in understaffed. Irregularities arise at investigation stage often delays extradition
- Dual criminality: Extradition is possible only in cases that are seen as crimes in both the countries in question. In past many offenders took help of dual criminality to avoid extradition.
- Double jeopardy: 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.
- Concerns of human rights violation: Primacy given to human rights concerns have developed as a result of the strong individual rights movements in European nations. In 2017, British courts rejected the extradition of alleged bookie Sanjeev Kumar Chawla, stating that his human rights may be violated over severe conditions in Delhi’s Tihar jail.
- Poor prison conditions: Many European country consider poor prison conditions as a form of human rights violation. Fugitives often raise this as a challenge during extradition hearings.
- Documentary requirements: Extradition procedures often face unreasonable delays because of improper or fabricated documents, and incorrect format of affidavits and certificates that is required by foreign countries.
- Bilateral relations and Domestic politics: It is often argued that extradition is as much a political process as it is a judicial one. The expeditious processing of requests and the commitment to prepare for and defend the case before Courts, depends on bilateral relations and the opportune use of diplomacy and negotiations to push for the process by the requested country.
Extradition is a sovereign decision. In spite of binding treaty mechanisms, the process of extraditing fugitives is lengthy, complex and heavily depends on domestic law and politics of the requested state. India could improve its success rate by
- Leveraging diplomacy and bilateral negotiationsto persuade countries to process requests expeditiously
- Indian government must conclude extradition treaties with as many countries as possible, and make efforts to enter into more bilateral extradition relations
- India also needs to take steps to dispel concerns regarding poor prison conditions and potential human rights violations. 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.
- For addressing investigational delays, it is imperative to improve the capacity and organisational efficiencies of law enforcement agenciesso that they may conduct speedy investigation. Government should establish a central agency to take up larger cases involving extradition as CBI is understaffed.
The Justice Malimath Committee report (2003) recommends setting up a Central Agency, on similar lines with the Federal Bureau of Investigation (USA), to exercise jurisdiction over crimes and offences affecting national security. To ensure that India’s extradition requests are in compliance with treaty conditions and documentary requirements, India must put in place suitable organisational mechanisms to familiarize itself with laws and regulations of treaty states. India could adopt the good practices of the US’ Office of International Affairs (OIA).
In spite of binding treaty mechanisms, the process of extraditing fugitives is lengthy, complex and heavily depends on domestic law and politics of the requested state. This is not surprising as extradition is, after all, a sovereign decision. Nonetheless, there are factors involved in extradition over which India can exercise control. India could adopt a targeted approach to resolve these issues, and thereby improve its success rate.