This article has been written by Yash Dadhich, from the Institute of Law, Nirma University, Ahmedabad.
Table of Contents
It is a universally accepted norm that states are bound by territorial limits and cannot apply their penal laws in another country. Owing to this, States cooperate with each other to put fugitives to justice by virtue of extradition treaties. As no Convention or Charter exists in international law to bind any State to extradite citizens, States follow the principle of diplomacy in order to maintain international cooperation.
India passed the Indian Extradition Act, 1962 (“the Act”) to govern extradition of fugitives from foreign countries to India or from India to any foreign country. To commence extradition, a request has to be made with specific requirements complying with ‘Comprehensive Guidelines for Investigation Abroad and Issue of Letters Rogatory (LRs)’ provided by the Ministry of Home Affairs. An extradition request can only be made when a charge-sheet has been filed against the accused and the cognizance taken by the concerned magistrate has issued a warrant of arrest. It is necessary for a magistrate to make out the prima facie case (including facts, history and evidence) against the accused and to bring the accused to trial, as such request is considered an apparent affidavit of the magistrate. Further, all the relevant documents of the case and paperwork for the extradition is to be attached with the request.
In addition to the provisions of the Act, extradition from any foreign country is also subject to provisions of a bilateral treaty, if any. Currently, India has extradition treaties with 47 countries and 9 additional extradition arrangements. However, India constantly faces challenges with one particular treaty ever since its inception, the India-UK bilateral extradition treaty of 1993.
The article aims to analyze how it is high time that India should examine its decades-old treaty with the UK and adopt comprehensive measures to amend and bring changes to expedite the process and establish an efficient mechanism to deal with this increasing number of white-collar crimes by Indian fugitives.
The infamous extradition treaty
For the past few years it has been hard to take white-collar crimes of Indian fugitives off the newspapers. Vijay Mallya, Nirav Modi and Lalit Modi are to name a few from a long list. India has made at least 23 requests so far and after 28 years of this bilateral treaty, India has been successful in extraditing only one fugitive in 2016.
This raises a very logical question in everyone’s mind, whether India faces such hurdles with all other countries? Are extradition treaties with India make-believe?
The answer to these questions can be answered by statistics available in the public domain.
India has extradited around 75 fugitives from 20 other countries and has reciprocated the same. Moreover, the data provided by the Ministry of External Affairs shows India has been able to extradite fugitives from foreign countries and to foreign countries with a 36% success rate. The data, when compared to other countries, is undoubtedly low but still, the hurdles faced in extraditing fugitives from the UK is in dire straits. In contrast to India, the USA has managed to extradite 120 fugitives out of 130 requests made to the UK. Then why does the India-UK treaty “(the treaty)” bring out exceptional circumstances creating barriers to put fugitives to justice? This can only be unravelled by looking at the failed and pending extraditions. The contentions raised in most of the cases revolve around similar grounds.
Sanjeev Chawla who is accused of the year 2000 match-fixing scandal was extradited to India after years of efforts. The main contention that led to delay was an appeal in the European Court of Human Rights (ECHR) for degrading conditions of Indian prisons.
Vijay Mallya accused of the biggest banking frauds and additional charges for money laundering is yet to be extradited as he raised contentions of political motive coupled with violation of human rights in Indian prisons.
Nirav Modi, fugitive of India’s biggest banking fraud has relied majorly on the rulings of Vijay Mallya case. The grounds taken by him fall under human rights, stating a deplorable medical condition leading to suicide.
The Route to Escape
The question still persists, why is the UK infamous as the safest place for Indian fugitives? The answer to this lies in the treaty and what are the grounds leading to rejections and indefinite delays.
The UK has been a go-to place for Indian fugitives and they enjoy their lavish lives evading justice. The reason behind such a brazen lifestyle is the UK investment visa (tier 1) which is commonly known as “Golden Visa”. Anyone investing 200,000 pounds in the UK economy can stay as long as 3 years and 4 months. Further, one can also apply for settlement in the UK following the further investment figures.
Another hurdle in extradition is the international law principle of “Dual Criminality”. An offence must be covered under the laws of both the requested and requesting countries. Earlier in 2017, it became challenging to prove the offence committed by Vijay Mallya as a criminal offence in the UK as well where default in payment to the bank is a civil wrong. After toilsome efforts, India was able to prove dual criminality inevitably leading to delay of proceedings.
The argument for human rights most common ground taken in almost all cases. This argument holds a strong position owing to ECtHR which was established by the European Convention on Human Rights (ECHR) to which the UK is also subjected to. It bars extradition whenever there is the claim of torture, inhuman condition, degrading treatment and any activity violating human rights under ECHR. For Indian fugitives, the most common resort is to blame the prison condition of India. Their claim revolves around harm to life, torture in jail and chances of mental breakdown in such degrading conditions of jail. The Indian government has indeed tried to provide letters of assurance to each such case but there is no hiding from the fact that prison conditions are not up to the standards of ECHR.
Apart from the above-mentioned grounds, there are several other miscellaneous grounds. Extradition calls for a lot of channelling of paperwork and various compliances and it shouldn’t come out as a surprise that there are several instances of delays on part of Indian authorities in getting paperwork or any necessary compliance.
Also, extradition may be denied in cases of double jeopardy, which is to say an accused is entitled to be discharged if he had been already charged under UK law.
Further, extradition may be refused on the ground of Article 9 (c-iii) of the treaty where it is proved that accusation against the accused is not in good faith. In addition to this, it can also be reused if it can be proved that prosecution is discriminatory, unjust, prejudiced or oppressive.
Plugging the loopholes
The treaty has now almost become 3 decades old and the gravity of crimes committed by fugitives has drastically increased. The 1992 Harshad Mehta used to be the highlight of the year when today cases involving frauds of thousands of crores have become very common in the market. Fraud after fraud and inability to put fugitives shows who unfulfilling the treaty has become. This calls for a new reformed treaty including procedures to expedite the process and to curb unnecessary delays. Further, India needs to put more pressure or strengthen ties with the UK with respect to this particular matter which British Home Secretary, Priti Patel has also assured to have been improved during her tenure. The improved relationship has surely helped in case of both Vijay Mallya and Nirav Modi.
Another reform that is likely to ease out the extradition process is to establish a special task force dedicated only to extradition under the administration of the Ministry of External Affairs. Handling of paperwork and other necessary procedures by CBI or Enforcement Directorate several times leads to delay, moreover, in the past, police have shown lethargic behavior to file in chargesheet leading to a domino effect of delays. A special probe in such matters will not only take additional burden on different agencies to make a case against fugitives but also having a dedicated task force will expedite the necessary procedure.
Coming to the most challenging reform, human rights conditions. There is no iota of doubt regarding prison conditions of India and the treatment given to accused by police has been criticized several times. Bringing in special cells or special prisons for extradited prisoners is one such reform that India should incorporate. Accused or innocent, everyone surely has the right to safeguard their life, liberty and human rights and bringing in fugitives from a member of ECHR which has a strong stand on human rights is quite challenging. Assurances by the government are not enough to satisfy the ECHR court, India needs to incorporate a new method modified into the prison system meeting international standards of ECHR.
Extradition flows primarily from the principles of international cooperation and state diplomacy. Strong international relations with different countries aids to establish an effective extradition treaty. Extradition treaty with ambiguity or loopholes leads years of futile efforts to bring fugitives to justice. India from the beginning of executing the India-UK treaty has been struggling to bring fugitives back to India to face trials. After 29 years with a success rate of mere 36% a proactive change in the framework of extraditions is long called for. India, despite its efforts to finally get a favorable order faces another hurdle when these fugitives either claims ‘Suicide Attempt’ or ‘Declaring Bankruptcy’.
It becomes vital for India to amend decades old extradition treaties and incorporate provisions to expedite the proceedings. With change in law, there is a need to establish a dedicated authority focusing its task force to extradite fugitives to India without struggling to get compliances at every level of administration. Degrading prison conditions is the common textbook argument in such all cases which stands as the strongest of all other arguments. Reforming Indian prisons is the need of the hour to meet international standards and to secure basic human rights and to prevent harm to life of prisoners.
With this steady increase in economic offences, India needs to be vigilant about this and should make strict amendments to ensure expedite and efficient extradition proceedings and to deter the fugitives to whom such offences are easy to get away with millions of public money to live a brazen lifestyle away from clutches of Indian authorities.
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