Internationalisation of crime and economic offences coupled with the increasing number of fugitives, extradition law is turning out to be ineffective
According to the official sources, the Dubai Court on September 18, 2018, ordered the extradition of British national and alleged middleman Christian Michel in the Rs. 3600 crore Augusta Westland VVIP choppers case. The Prime Minister during his last visit had made an official request to the Gulf nation on the basis of criminal investigations conducted by CBI and Enforcement Directorate (ED). As the order has brought some happiness to the BJP as the Augusta Westland scam dates back to the Congress tenure and the current order empowers them with a potent weapon to tackle the allegations of corruptions in the Rafale deal. The accused is still protected according to the international law jurisprudence as he has the option to appeal, but, this has paved the way for further orders against economic offenders like Nirav Modi and Vijay Mallya.
The CBI has a specially constituted Interpol Wing which receives and passes on the Red Corner Notices to the state police and immigration authorities
With the increasing recognition among the international community that states should show solidarity in repression of offences and cooperate in the international battle against crime, it is important to analyse the extradition policy of India before deliberating upon these offences. Jurist Oppenheim defines Extradition as, “Extradition is a delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed or to have convicted of a crime, by the State on whose territory the alleged criminal happens to be for the time.” The provisions as to extradition of fugitives from a foreign country to India or vice versa is subject to the legislative provisions of the Extradition Act of 1962.
The obligation to extradite has to be harmoniously constructed with the treaties, arrangements and conventions entered by the nation with the other countries. Further interpretation of the legislative intent makes it clear that the act relies on the principles of reciprocity, dual criminality, proportionality between the offence and sentence, fair trial and human rights protection. The CBI has a specially constituted Interpol Wing which receives and passes on the Red Corner Notices to the state police and immigration authorities. Such a notice per se does not give it a status of a warrant of arrest and is merely a request of issuing authority to keep surveillance on the person and provisionally or finally arrest the wanted person for extradition. The Supreme Court in case of Bhavesh Jayantilal Lakhani v. the State of Maharashtra held that “Arrest in India is not automatic in case of red corner notice and fugitive criminal can only be apprehended according to the provisions of the 1962 Extradition Act. The situation will, however, be different in case of an endorsed warrant, that is to say, where a warrant has been issued by a foreign country against a fugitive in India, and India has an extradition treaty with that foreign country and offence complained of is an extraditable offence, in that case, the Central Government has to endorse that warrant and the same can be executed thereafter as per Sec 17 of the Extradition Act.”
International jurisprudence in this sector is evolving at a rapid pace and in the interest of justice, there is an urgent need to match global standards, which is possible only by framing an effective loophole free foreign policy and strengthening existing agreements.
India has made a formal requisition to Antigua and Barbuda authorities to detain Mehul Choksi but followed by a negative response as annulling citizenship would violate their constitutional provision as he got his citizenship only after his credentials were verified. Vijay Mallya was arrested and released on bail in connection with an extradition request filed by India. India and UK signed an extradition treaty in 1993 and India has filed for the extradition of around 131 accused, but has managed to extradite only 1 fugitive accused of murder – Samirbhai Patel. Extradition is possible only in cases where an offence is seen as crimes in both the countries in question. The US, UAE, UK, Canada, Germany, Nepal, Bangladesh, Iran, Singapore, Australia, Nigeria, Denmark, South Africa and France are among the 47 countries with which India has signed extradition treaties. India has entered into extradition agreements with 47 countries but has extradited only 62 accused so far. Out of which 8 were extradited in 2005 and 7 in 2003 and 2004, around 6 were extradited in 2015. 9 fugitives were extradited for terrorism-related charges, including 3 from the UAE in relation to the Mumbai bomb blasts in 1993.
Internationalisation of crime and economic offences coupled with the increasing number of fugitives, extradition law is turning out to be ineffective. It is left to the wisdom of the court to interpret treaties and agreements vis-a-vis municipal extradition law. International jurisprudence in this sector is evolving at a rapid pace and in the interest of justice, there is an urgent need to match global standards, which is possible only by framing an effective loophole free foreign policy and strengthening existing agreements.
1. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.