EXTRADITION LAW IN INDIA AND RECENT TRENDS

INTRODUCTION

With the increase in global cooperation and a rise in international treaties and agreements, a law that comes to the forefront is Extradition. Extradition in earlier times was a much more stringent and complicated operation due to the lack of friendly relations and the existence of animosity between many nations. Now that there exists a global platform for countries to voice their concerns and negotiate conflicts, extradition has become an exercisable venture. A number of treaties exist between countries providing for the transfer and punishment of fugitives with crimes that transcend boundaries. International Crime has risen as a result of the dilution of boundaries in trade and business. Many transactions have adopted a trans-border character, which has a possibility of crime with many people in different parts of the world, who are likely to flee from the country alleging the offence. In such a scenario, extradition becomes more relevant.

Extradition has come to play in a number of recent instances where India wished to exercise its jurisdiction with respect to a number of fugitives who fled abroad. These Cases include names such as Vijay Mallya, Nirav Modi, Abu Salem and, many more. Extradition is a very complicated policy, as it requires the consent and compliance of two or more nations. This complication needs to be examined closely in order to resolve disputes similar to the ones mentioned above more freely in the future.

EXTRADITION LAW IN INDIA

Extradition Law in India is majorly overseen by the Extradition Act 1962[1], as well as various judicial precedents. In the case of State of West Bengal v. Jugal Kishore[2], the Apex Court defined Extradition and discussed contentions regarding it. It stated that “Extradition is the delivery on the part of one State to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and are justifiable in the Courts of the other State.”

The Extradition Law in India has evolved from colonial provisions for extradition and statutes passed by the British. The Extradition Act 1870[3], which was passed by the British Parliament was originally made applicable to India. In 1903, India passed its first indigenous Extradition Act[4]. This Act held major importance until independence, post which, the Act of 1962 was passed which now holds legal prominence.[5]

Under the Extradition Act 1962, Sections 20[6] and 21[7] state what constitutes extradition and what conditions need to be fulfilled for such an operation. These sections deal with both the transfers of offenders from India and to India. The most important condition when dealing with extradition is the existence of a treaty between the state the accused has fled from and the state where he or she is seeking refuge.[8] An important necessity while extraditing an individual is that double criminality is required; this means that the offence he has been accused or convicted of is a crime both in India and the Foreign State, and should also be in the list of offences stated in the second schedule of the Act.[9] The provisions also include that extradition can only be granted or asked for when dealing with a non-treaty state only when it involves offences mentioned in the second schedule. The offender can be tried by the state he has fled from only for those offences that he was extradited for.

JUDICIAL DECISIONS DEALING WITH EXTRADITION

Extradition law has also evolved in India, owing to a number of judicial decisions that have laid down the law or clarified certain terms regarding extradition. In the State of West Bengal v. Jugal Kishore More, the Supreme Court defined extradition, which was not done in the Act. It laid down how the process of extradition works and details regarding treaties, implementation, and the procedure that is to be followed to extradite an individual.

The Court has also specified that a fugitive who has been extradited to India under a certain offence can only be tried for those offences in Daya Singh Lahoria v. Union of India[10], it was also mentioned that the Doctrine of Speciality was to be upheld. The Rule of Speciality was also taken into account by the Apex Court in Abu Salem Abdul Qayoom Ansari v. the State of Maharashtra[11], a case that involved a fugitive who was involved in the 1993 Bombay Blasts. Extradition Law has also been laid down in a number of other cases by the Supreme Court such as Sarabjit Rick Singh v. Union of India[12], Rosiline George v. Union of India[13], and Marie-Emmanuelle Verhoeven v. Union of India[14].

RECENT CASES OF EXTRADITION

In the recent past, India has had to deal with a few complicated cases of extradition that have made the headlines. More often than not, the crimes related to these cases have been involving financial crime or fraud. So, what are the systems that we need to have in place to prevent such instances?

In 2016, Indian Liquor Baron, Vijay Mallya fled to London, when he was accused as a fugitive under the Economic Offenders Act, after the failure to repay a 6000 Cr loan from the State Bank of India. His arrest has still not been extradited. Similarly, in 2018, Nirav Modi, an Indian Diamond Industrialist, fled India, after Interpol issued a red notice against him for money laundering. Both these individuals have been arrested in the United Kingdom but their extradition has not been possible.

Such instances make it clear that India’s Extradition Mechanism needs better implementation and treaties in place that ensure justice. An example of this is India’s extradition relations with the U.K., there have been a number of attempts in the past few years, few of which have succeeded.[15] There is a need to have treaties in place with a number of countries and better diplomatic relations in such circumstances, to, ensure the arrest of escaped fugitives. Even though most of our extradition law has evolved from, or is a successor to British Law, we are having legal complications while trying to extradite fugitives from Britain. Certain Nations hold a larger amount of bargaining power as a result of international power dynamics, which gives them an upper hand in executing extraditions. Therefore, it is imperative, that India revisits its negotiating powers, and brings a change in order to successfully deal with a wider range of countries.

CONCLUSION

Systems of Extradition have always been very useful in maintaining peaceful diplomatic relations as well as keeping crime and offenders under control. Escaped fugitives not only put diplomatic relations under tension but also put the international society at risk. To deal with these problems, international extradition law has evolved over the decades of years. In the Indian Scenario, we have seen in recent years that the individuals who have created issues with extradition have more often been those accused of financial crimes or frauds, moreover being people of means they have found ways to escape trial and imprisonment. The need of the hour is to have systems in place for the early detection of such cases, and better extradition mechanisms in place so that legal complications do not help the fugitives.

Author(s) Name: Arijit Sirpurkar (Maharashtra National Law University, Nagpur)

Reference(s):

[1] The Extradition Act 1962

[2] State of West Bengal v. Jugal Kishore More, 1969 1 SCC 440

[3] The Extradition Act 1870

[4] The Indian Extradition Act 1903

[5]  Saxena, J. “India—The Extradition Act, 1962”. (1964)  International and Comparative Law Quarterly, 13(1), pp.116-138.

[6]  The Extradition Act 1962, s (20)

[7]   The Extradition Act 1962, s (21)

[8] Shivani Vashisth, ‘Extradition: Its Meaning and Function in India’ (2020) 17 Supremo Amicus 540

[9] R. K. P. Sarup, ‘ Indian Extradition Law: Effect of Foreign Decrees in Indian Courts’ (1973) 15 JILI  553

[10] Daya Singh Lahoria v. Union of India, 2001 4 SCC 516

[11] Abu Salem Abdul Qayoom Ansari v. State of Maharashtra, (2011) 11 SCC 214

[12] Sarabjit Rick Singh v. Union of India, (2008) 2 SCC 417

[13] Rosiline George v. Union of India, (1994) 2 SCC 80

[14] Marie-Emmanuelle Verhoeven v. Union of India, (2016) 6 SCC 456

[15] Arnell, P. . ‘India–UK extradition law and practice–the case for reform.’(2019) Commonwealth law bulletin, 45(3), pp.411, 430.