This article is written by Shruti Yadav, from Jagran Lakecity, Bhopal. This article talks about extradition and policies regarding it. It also reiterates the reason behind fugitives fleeing to the UK and the extradition relationship of India with the same.
Extradition is a process where one government requests another state to surrender a fugitive who fled to their country seeking asylum, after committing a crime in the requesting country’s jurisdiction. It includes convicts charged but not tried, those who have escaped in custody, and those prosecuted in absentia. Generally, states do not apply their penal laws in crimes committed outside their territory and have been willing to assist in surrendering fugitives for the sake of justice. Extradition is typically enabled through treaties between countries. Countries also tend not to extradite fugitives for military or political offenses and capital punishment or life imprisonment. Also, countries will not extradite their citizens to other jurisdictions for a crime they committed abroad. Some lacunae and loopholes in international cooperation about extradition are often exploited by criminals who take shelter abroad. This makes their case into a complex legal issue involving jurisdictions of different states.
India’s Fugitive Economic Offenders Act, 2018
Fugitive Economic Offenders Act, 2018, seeks to confiscate properties of fugitives who have fled to evade conviction and refuse to return. A Fugitive Economic Offender (FEO) is against whom charges of an offense under this act of the minimum value of 100 crores are levied. A few offenses listed in this act are money laundering, forging currency or government stamps, transactions duping creditors, and cheque dishonor. FEO is defined by the Fugitive Economic Offenders Act, 2018, Section 2 as any person against whom a warrant for detention concerning a scheduled offense has been declared by any court in India, who
- has left India to dodge criminal prosecution; or
- being abroad denies returning to India to face criminal prosecution.
The FEO Act aims “to provide for means to hinder fugitive economic offenders from circumventing the process of law in India by staying outside the jurisdiction of Indian courts, to protect the sanctity of the rule of law in India and for circumstances connected in interest to that or incidental thereto.” The court has the power to declare any individual a fugitive economic offender after hearing their case. It can also direct the Central Government to confiscate proceeds from the crime and property under the name of such an offender.
Role of enforcement directorate (ED)
The authority to enforce laws and investigate crimes of economic nature in India are rested upon the directorate of enforcement(ED).
It is law enforcement and economic intelligence agency. It comes under the Government of India and the Ministry of Finance’s Department of Economic Affairs. It is the main body that is responsible for fugitive economic offenders. The key role of the agency is as follows:
- Investigate the provisions of the Foreign Exchange Management Act (FEMA), 1999, which has been violated. The penalties that are imposed are up to three times the sum involved.
- While investigating the crime, the property attached shall be seized if the same is determined to be proceeds of crime inferred from a scheduled offense under the Prevention of Money Laundering Act (PMLA), 2002 and to prosecute the individuals involved in the malfeasance of money laundering.
- Notice shall be given under the Foreign Exchange Regulation Act (FERA), 1973 for the alleged infringement of the provisions of the concerned Act, which may result in punishment.
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA),1974 regarding violations of FEMA shall sponsor cases of precautionary detention.
- In matters relating to money laundering and restoration of assets under the provisions of PMLA, render cooperation to foreign countries and seek cooperation in such matters.
The Vijay Mallya case
He is a businessman who fled to the United Kingdom and is presently fighting extradition. He was accused of money laundering and fraud of an estimated Rs. 900 crores.
Mallya was declared a fugitive economic offender by a special court in Mumbai, the first such denotation under the Fugitive Economic Offenders Act, 2018.
The ED’s charges have pitched five occurrences of alleged digression of loan funds given to Kingfisher Airlines by moneylenders:
- The alteration of Rs 3,432.40 crores through over-invoicing of lease rentals of aircraft.
- The deviation of Rs 45.42 crores for securing an amount towards the rental lease of a corporate jet which Mallya used.
- The digression of Rs 50.90 crore from Kingfisher Airlines to the Force India Formula One team that Mallya managed.
- The diversion of Rs 15.90 crore from Kingfisher Airlines to Mallya’s firm that owned the Indian Premier League cricket team Royal Challengers Bangalore.
- The diversion of Rs 2.80 crore to ICICI Bank as reparation of an earlier credit to Kingfisher Airlines.
The ED, as per their investigation, accused Mallya of covering, possession, purchase, and use of proceeds of crime.
The Nirav Modi case
The Enforcement Directorate claimed it had seized Rs 17.25 crore from an account in the United Kingdom belonging to Purvi Modi, opened by fugitive diamond jeweler Nirav Modi.
Purvi Modi, Nirav Modi’s sister, turned approver in the money laundering case against him, notified the ED about the account. The ED said the money did not belong to Purvi, and Nirav Modi was operating the account.
Modi and his uncle Mehul Choksi are implicated in routing about Rs 13,600 crore through swindling Letters of Undertaking (LoUs) of Punjab National Bank (PNB). Both are being investigated under PMLA. Modi left India and fled to Britain in January 2018 before the PNB scam became known.
So far, the ED has confiscated assets worth Rs 2,400 crore belonging to Modi in India and abroad.
Human rights and the UK
Since 2013, over 5,500 people from India have sought political asylum in the UK. UK is a signatory to the European Convention of Human Rights and therefore, has to comply with denying extradition requests if any UK court deems a person will likely face life imprisonment or capital punishment upon extradition.
Extradition procedures are slow in the UK. Only one Indian has been extradited to India by the UK since the inception of extradition treaties between both countries in 1992. The UK has rejected a large number of extradition requests made by India, citing different grounds. The legal system in India and Britain is almost identical, which means lawyers in the UK also have a vast knowledge of Indian law, which is an additional advantage to the Indian offenders. The British Human Rights Commission is considered very strict and severe. It protects the interest of every individual residing in its territory. The offenders are abusing this protection. While determining whether a requested person may be extradited, the Magistrate Court must also consider whether or not, extradition would be sanctioned in terms of the same not violating the requested person’s conventional rights as defined under Article 8 of Human Rights Act, 1988 (UK), which include the right to a fair trial, interdiction of torture and depraving treatment. If the Magistrate Court determines that the extradition of the requested person would infringe these rights, in that case, it cannot direct the extradition.
Way forward for India to increase its extradition success rate
Once the person has eloped to another country, that country becomes entitled to protect him and declines to let the country where he has committed the offense take him away. In other words, the country where he absconds is capable of providing him with refuge. When opposing extradition to India, requested persons will usually take up similar human rights and extrinsic deliberation arguments. The conditions of prisons in India were a central issue of the argument. However, the Government of India has been able to dissipate any perceived jeopardy by giving adequate convictions. India ought to guarantee that it lives up to its convictions. The UK and other jurisdictions remain to have a belief that India will not breach convictions given by it. This may be significant in case of imminent extradition proceedings. In light of recent India-UK extradition verdicts, the UK may no longer be a favored target for fugitive offenders from India. India’s proactive approach towards extradition, assuredly, is an impediment. It promotes the postulate that no one can evade the long arms of the law. Despite binding treaty mechanisms, the process of extraditing fugitives is lengthy, intricate, and heavily depends on domestic laws and the diplomacies of the requested state. This is not unusual as extradition is, after all, a sovereign choice. Nonetheless, there are determinants involved in extradition over which India can exercise authority. India could foster a targeted approach to settle these arguments and thereby improve its success rate.
Leveraging tact and bilateral mediations to persuade countries to process requests expeditiously is a critical step. Moreover, based on comity, India should concoct extradition requests from international states swiftly and efficiently. Also, India must arrange extradition treaties with as many countries as possible and enter into more extradition relations. Deterrent law and policy measures that can prevent the escape of offenders may also be investigated. The freshly passed Fugitive Economic Offenders Act, 2018, implies the government’s attempts to shift its focus to preventive, ex-ante legal procedures. India also needs to dispel concerns about poor prison conditions and inherent human rights breaches of the requested person. Assurances by the Indian Government concerning the same are frequently not affirmed by the international courts. As a short-term proposition, India could offer to detain surrendered offenders to reformatories with adequate facilities. Fugitives who are not involved in violent crimes, such as economic offenders, can be put on house arrest with minimum security. However, it is frugal to make a coordinated effort to introduce systematic prison reforms and transform Indian prisons into a safe area for rehabilitation.
Additionally, India could weigh in signing international instruments, such as the UN Convention Against Torture (1984), to ascertain India’s zero susceptibility towards torture and custodial brutality. At the same time, the advancing application of human rights interests to extradition requests beckons for the formulation of rules that deliver a fair balance amidst crime suppression and the fugitive’s security. To warrant that India’s extradition requests comply with treaty provisions and documentary obligations, India must bring an appropriate organizational agency into action to familiarise itself with the laws and ordinances of treaty states. India could adopt the US’ model of Office of International Affairs, Washington’s principal body to manage extradition requests, and employment lawyers and station qualified liaison deputies in countries with which the country has extradition associations. Setting up a separate chamber to provide proficient legal aid and assistance on drafting, certification, and interpretation of evidence will help mitigate the refusal of requests.
Along with the benefits of globalization and unification comes the critical challenge of offenders escaping India. Given India’s hindrances in ensuring the return of these fugitives, the country must swiftly introduce amelioration and leverage diplomacy to conceive a more straightforward, frictionless extradition procedure. For a long period, the UK has been one of the most preferred sanctuaries of indicted or sentenced people in India. The Government of India has finally realized the main reason behind its constant failure to extradite offenders from the UK. The inferior prison conditions in India have been a pivotal point of argument by many offenders and for the right acumens. Extraditing a person only to have them presented to a terrible prison environment may be something they warrant but is also uncompassionate and inhumane. India must guarantee that the person they are asked to extradite would not be managed degradingly by the seeking State. The Government of India has not always been that efficient in erecting reliable letters of assurance that would plead all the potential difficulties in prison and how such problems would be taken care of. This flaw has been enhanced to generate better outcomes in improved trust and reassurance in India. Still, India’s time to adjust for a favorable turn of events as the contemporary trend of extradition between India and the UK seems more likely than ever. Now, the Government of India should recreate the extradition treaty with Britain so that the extradition of fugitives can be done without any obstruction.
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