Extradition Laws: Where the Indian and the UK's interest overlap?
States negotiate extradition accords in order to pursue fugitives and other wanted persons in foreign territories, a practice that dates back to ancient times. Extradition has become increasingly significant as international criminal groups, such as those linked to terrorism, narcotics trafficking, counterfeit, and cybercrime, have grown substantially. It can be said that the source of power of extradition arises from treaties. Upwards of a hundred nations have extradition treaties with the United States. Extraditions are typically problematic, and they may become mired in geopolitical tensions even when accords are in place. Formally, "Extradition" refers to the handover of any individual demanded by the requesting State seeking criminal prosecution or the imposition or implementation of a sentence in connection with an extraditable offence. The presence of an enforceable extradition treaty as well as the municipal laws of the land for which extradition is requested are two elements that influence international extradition proceedings. However, as a gesture of good faith, an extradition procedure between two nations can take place with no such agreement or arrangement. Although, the cases wherein a country extradites without the prior existence of a bilateral treaty are rare occurrences. The aim of this essay is to provide an insight into how countries like the United Kingdom and India have their extradition laws framed. Furthermore, popular case-laws pertaining to extradition will be employed to provide a practical understanding and application of the said laws.
Indian Extradition laws vis-à-vis that of the United Kingdom.
The Indian Extradition Act, 1962 is the source of law governing extradition in India. The legislation governs extradition of fugitives from India, as well as to India. The presence of any extradition treaty between India and a different country act as a basis of extradition. Section 2 (c) of the Act defines "extradition offence" as (i) "in relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty with that State;" Furthermore, (ii) "in relation to a foreign State other than a treaty State an offence punishable with imprisonment for a term which shall not be less than one year under the laws of India or of a foreign State and includes a composite offence;"
As per the provisions under Indian Extradition Act, 1962, extradition can be requested for criminals who are under investigation, awaiting trial, or who have been convicted. In instances under investigation, the law enforcement agency must work tirelessly to ensure that it has prima facie evidence to support the claim before the foreign state's courts of law. The Extradition Act is administered by the Ministry of External Affairs' Consular, Passport and Visa Division, that also processes incoming and departing Extradition Requests. To speed up and streamline the extradition process, the Indian government has bilateral Extradition Treaties with 42 nations and Extradition Procedures with nine other nations. Extradition might be based on a treaty involving India and a foreign country, or, in the lieu of a treaty, an extradition agreement. The Government of India might make a notice under Section 3 of the Act, extending the Act's provisions to the nation or countries notified. Section 3(4) of the Indian Extradition Act, 1962, stipulates that the Central Government may, by proclaimed order, treat any convention to which India and a foreign nation are parties as an Extradition Treaty formed by India with that foreign state allowing for extradition in respect of the offences mentioned in that Convention. India is also a signatory to the International Convention to Prevent Terrorist Bombings, which was signed in 1997. It also creates a legal foundation for extradition in cases involving terrorism. Where the participating nations have signed an Extradition Treaty, the extradition request must be made in accordance with the treaty's particular procedures. Extradition petitions are issued only after the lodging of a charge sheet, cognizance of the same, and issuing of an arrest warrant, according to the Ministry of Home Affairs' Comprehensive Guidelines for Investigation Abroad and Issue of Letters Rogatory (LRs). The extradition procedure is essential if the offender is to be apprehended and brought before Indian courts. The plea for extradition will be made to the Ministry of External Affairs after the Investigative Agency has filed the charge sheet and the Magistrate has taken cognizance of it, issuing rulings justifying the committal of the alleged perpetrator to trial and seeking the appearance of the alleged perpetrator to face trial. The Magistrate will be directed by the grounds listed above when executing any such arrest warrant for the accused. The request appears in the form of a self-contained affidavit from the Magistrate that establishes a prima facie suit against the accused. Defendant's identification is established through the affidavit's concise facts and history of the case, including witness testimony and pertinent documentary evidence. The acts for which the offender is charged, as well as the articles of law specifying the maximum penalty, must be specified. The extradition request should include a replica of the First Information Report (FIR) duly counter-signed by a qualified judicial authority, as well as an order of the Magistrate justifying the accused person's sentencing to trial based on the evidence made accessible in the charge-sheet, with instructions seeking to secure the perpetrator's appearance in Court to face prosecution in the said court from the nation of current stay. Any such request should be accompanied with an authentic, open-dated warrant of arrest stating the crimes for which the accused has been charged, as well as the fact that the Court has taken cognizance of the relevant provisions. In case wherein the specified procedure under the Indian Extradition Act, 1962 is not followed, any such extradition request may be denied.1
Extradition Treaty between India and the UK
Since both the US and Indian extradition laws have been discussed, lastly, the extradition treaty between India and the United Kingdom will be addressed. The reasoning behind the same is such that there is one treaty which has been a constant source of challenges for India since it was struck, i.e., the infamous India-UK bilateral treaty. In 1992, India and the United Kingdom struck an extradition deal. Just two petitions for extradition of fugitives living in the UK have been approved ever since. Until now, all previous pleas have remained unanswered. Extradition procedures in the United Kingdom are sluggish. UK extradition has encountered a brick block due to either general extradition conditions not being satisfied or relevant impediment to the procedure being triggered. Throughout all cases, the defense teams sought to smear the Indian authorities, charging them of ill faith and heinous conduct. For the past several years, it has been difficult to keep Indian fugitives' white-collar offences out of the press. To mention a few from a lengthy array, Vijay Mallya, Nirav Modi, and Lalit Modi. Vijay Mallya, accused of the biggest economic frauds and financial crimes, is yet to be extradited due to allegations of political motivation and human rights violations in Indian jails. Affluent fugitive Nirav Modi has relied heavily on the Vijay Mallya case rulings. His claim is based on human rights, citing a dreadful physical state in Indian Prisons that leads to suicide. Most extradition cases involve significant financial criminals, like the ones mentioned above. As per Article 1 of the Extradition Treaty involving India and the United Kingdom, it is India's and the United Kingdom's responsibility to extradite any individual charged or convicted of an extradition crime committed inside the territory of one State before or after the Treaty's entering into force.2 In criminal proceedings, each contracting state must provide mutual aid to the other. An extradition offence is characterized as one that is chargeable by a prison term of at least one year by the laws of both contracting States, excluding political offences but including pecuniary offences or major crimes such as murder, triggering an explosion, terrorism, and so on. If the individual is being prosecuted for the extradition offence in the requested State's courts, or if the accused can show that the trial in the requested State is unfair, repressive, biased, or discriminating, the plea for extradition may very well be declined. A certificate of conviction is essential when the request is for someone who has already been convicted. The individual may be temporarily detained by the requesting State before his extradition request is processed in emergency circumstances. Assuming his extradition request has still not been received within 60 days from the date of detention, he may be released. After being extradited to the asking State, a person can only be prosecuted for the crime sought, any lesser crime, or any crime agreed to by the requesting State within 45 days. Extradition may be rejected for an offence that carries the death penalty in the seeking state but does not carry the death penalty in the requested state for a similar offence.3
Extradition was originally employed to protect states' political and religious interests, but it progressively evolved into an international collaboration to protect global social values and fight crime. In a politically divided world, governments must overcome sovereign impediments to expand their criminal justice systems beyond national borders. As a result, the offender's (accused or convicted) inability to enter the country is a substantial hindrance to the victim state's criminal justice system. When a criminal escapes to another nation to avoid prosecution in a certain state, extradition allows the state to reclaim the fugitive and prosecute him. Extradition is therefore a method that helps a state that is politically handicapped owing to sovereign obstacles. Despite the political obstacles, extradition is a vital legal tool in assisting a state's criminal justice system.
1. Faraz Alam Sagar and Pragati Sharma, 'Extradition Law: Fundamentals And Processes - Part I' (India Corporate Law, 2022) < https://corporate.cyrilamarchandblogs.com/2019/08/extradition-law-fundamentals-processes-part1/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration > accessed 14 April 2022.
2. Extradition Treaty between the Government of the Republic of India and the Government of the United Kingdom of Great Britain and Northern Ireland, signed September 22, 1992, ratified November 15th, 1993.
3. Vaishali Basu Sharma, 'As UK Becomes A Haven For Financial Fraudsters, How Can India Improve Its Extradition Success Rate?' (The Wire, 2022) < https://thewire.in/business/uk-haven-financial-fraudsters-india-extradition > accessed 15 April 2022.
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