Extradition: Procedure, Need And Justice

Key Takeaways

• Extradition is a well-established international process for bringing fugitives back to their home nations in a timely manner.
• Treaties and agreements govern the process, which follow globally recognised legal norms for surrendering fugitives.
• It is critical to repatriate offenders from other nations in order to provide speedy justice and restitution of grievances.
• Taking advantage of the developments and the sovereign powers of every country, the offenders have used escaping to another country a way of evading charges and for the same reasons, the Indian legislature has made provisions to extradite the offenders.
• The article discusses the process of extradition and the legal footing of the provision, in India and the world.

Introduction

When an offender escapes from the country to go and settle in another country, it becomes extremely difficult for the country to bring the offender to the Court without compromising the sovereignty of the country where the offender is hiding. With a steady rise in international and cross-border crimes, the world has a huge hurdle in terms of identification, arrest, extradition, and trial. It is important for each country to define its rights and obligations in combating international crime, as well as to establish the due process of law for the arrest, interrogation, surrender, and transfer of suspected individuals, as well as the eventual trial and conviction of those accused.

Extradition is the process by which one jurisdiction hands over a person suspected or convicted of committing a crime in another jurisdiction to the law enforcement authorities in that jurisdiction. It is a joint law enforcement effort between the two jurisdictions that is dependent on the agreements reached. Extradition includes the physical transfer of custody of the individual being extradited to the legal authority of the requesting jurisdiction, in addition to the legal parts of the process.

The Extradition Act, 1962

The Extradition Act 1962 is the law that oversees the extradition of a fugitive from India to a foreign country or vice versa. The Extradition Act has to be read in conjunction with the treaties that India has signed with other countries. Extradition is governed by two principles, i.e., Principle of Relative Seriousness of the Offence and the Principle of Dual Criminality.

Principle of Relative Seriousness of Offence: The most significant premise that governs Extradition Law is this principle. It requires that the crime that the fugitive is accused of committing be a crime in both the requesting and requested states.

Principle of Dual Criminality: Extradition is only applicable in circumstances when the offence for which extradition is sought by a requesting state is recognised as a crime in the requested state, according to the basic criteria of determining dual criminality. The offence's name is unimportant, but the substance of the offence is examined using the dual criminality principle. Extradition request forms normally include a need for requesting states to define the fundamental elements of the crime and provide information on the legal status of the crime. This is a criterion for determining whether or not an extradition request meets the dual criminality test.

India has signed Extradition Treaties with 47 Countries, the last treaty being with Lithuania in 2017 and Extradition Arrangements with 11 countries out which the arrangements with Italy and Croatia are only with respect to crimes related to Illicit Traffic in Narcotics Drugs and Psychotropic Substances as both the countries are a part of the UN Convention against Illicit Traffic in Narcotics Drugs and Psychotropic Substances of 1988 along with India.

Section 3 (4) of the Extradition Act requires the Central Government to make a notification under which an international convention signed by both India and the non-treaty partner countries is recognised as an extradition treaty for the crimes specified in the convention. The only offences for which extradition can be sought in these circumstances are those specifically listed in the applicable international convention.

India is also a signatory to the International Convention for the Prevention of Terrorist Bombings, which was signed in 1997. This also establishes a legal foundation for extradition in cases involving terrorism. If an extradition request is submitted by a country with which India does not have a common international convention, or by a country with which India does have a common international convention but the extradition request is for an offence not covered by that convention, India does not have to comply.

On April 21, 2018, India passed the Fugitive Economic Offenders Ordinance, 2018, which allows for the start of various measures against fugitive economic offenders who depart the nation after defaulting on multi-billion dollar bank loans and other forms of fraud. A fugitive economic offender is a person who has fled India to avoid criminal prosecution for a scheduled offence of more than Rs. 100 crores, or who has refused to return to India to face criminal prosecution while abroad. According to the Ordinance, certain authorised officers can file an application in a special court to have fugitive economic offenders declared.

Extradition Process

Extradition process starts with extradition petitions are made only after the filing of a charge sheet, cognizance of the same, and issuing of an arrest warrant, in accordance to the Ministry of Home Affairs’ Comprehensive Guidelines for Investigation Abroad and Issue of Letters Rogatory. The extradition process must be followed if the accused is to be apprehended and brought before Indian courts.

The request for extradition would be made to the MEA after the Investigative Agency has filed the charge sheet and the Magistrate has taken cognizance of it, issued orders/directions justifying the committal of the accused to trial and asked the attendance of the accused to face trial. The Magistrate has to follow the grounds listed above when issuing such a warrant for the arrest of the accused.

The request comes in the form of a self-contained affidavit from the Magistrate that establishes a prima facie case against the defendant. To establish a prima facie case, the affidavit must provide brief facts and a history of the case, including witness statements and relevant documentary evidence, legal provisions invoked, and a description of the accused that establishes his identification. The offences, under which the offender is charged, as well as the articles of law specifying the maximum sentence, have to be specified.

The extradition request is accompanied with a copy of the First Information Report (FIR) duly counter-signed by the Magistrate justifying the accused person’s committal to trial on the basis of the evidence provided in the charge-sheet, as well as directions seeking to secure the accused’s presence in Court to stand trial in the said Court from the country of present stay. Such a request must be supported with an original, open-dated warrant of arrest specifying the offences for which the accused has been charged, as well as the fact that the Court has taken cognizance of the relevant sections.

States are not compelled to extradite foreigners or nationals if the crime is not listed in the treaty as an extraditable offence. Extradition can be denied when the matter is of military or political offences. For the purposes of extradition treaties, terrorist offences and violent crimes are excluded from the scope of political offences. If the activity creating the charge is criminal in both the requesting and the foreign countries, the offence may be tried in either of the countries depending on variables such as the region where the offence was committed and the nationality of the accused. In case of any deficiency in proper implementation of the procedure for extradition, the extradition can be denied.

Conclusion

Extradition is a significant step forward in international crime-fighting cooperation. Extradition should be regarded as a legal necessity arising from international cooperation in the fight against crime. Extradition law is in a state of flux due to the growing internationalisation of crime and judicial reforms. It goes without saying that it allows fugitive criminals accused of crimes in India to avoid arrest and prosecution for years. The Ordinance is a positive step in the right direction, but its long-term advantages and potential to urge foreign countries to cooperate with India to speed up the extradition process remain to be seen. The recent instances of Mehul Choksi or the Sanjay Chawla case give us a little hope that we may be going forward but there are still plenty of provisions which the fugitives use to escape.