By Kashish Batta
Increased inter relations between countries and also with advent of the globalization, offenders can easily escape to other nation to avoid the prosecution. With the advent of various laws still India is facing issues in order to extradite offenders from requested state or nation. This article talks regarding the various issues, suggestion and also cases where India failed to extradite offender back.
INTRODUCTION
Crime is increasing day by day at an alarming rate and turning into international. Serious offences have cross many border implication. So to avoid the trial or punishment, criminal fugitive flees to other country. In India, Extradition act 1962 [i]deals with the extradition of the fugitive accused. Comity of nation principle evolves the device of extradition in which one state (requested state) surrender offender person (requested person) to other state (requesting state) in whose jurisdiction offence was committed. The word extradition arises from two words ex and traditum means the delivery of criminals. In simple terms, extradition is the formal process of a state that hands an individual over to another state to be prosecuted or punished for the crimes committed in the jurisdiction of the requesting country.
Starke defined the term “extradition” as the process by which on the basis of the treaty or on the basis of reciprocity a State surrenders to another State at its request an accused person or convicted of an offense committed against the laws of the requesting State, that requesting State has jurisdiction to prove the alleged offender.
Grotius- defined “extradition” as the duty of state to return the accused person to the requesting state in whose jurisdiction offence was committed or to punish the offender.
Currently, India has bilateral extradition treaty [ii][section 2(d) of Extradition act, 1962] with the 43 countries and extradition agreements with 10 countries. Thus, the main reason for the enactment of Extradition act, 1962 is to prevent crimes and punish criminals as it is in the interest of all countries to punish criminals and prevent crimes because the country where a person of a criminal character resides is in the interest of that country to ensure the extradition of such person but also depends on a bilateral treaty and the principle of reciprocity but where there is no treaty or agreement then the country can ask the other country in which the perpetrator of the crime resides to extradite the fugitive or the perpetrator of the crime and it is in the interest of security and the law and order of that country to extradite the accused.
PRINCIPLES GOVERNING EXTRADITION ARE AS FOLLOWS:-
- Dual criminality
- Extraditable offence
- Competence
- Reciprocity
- Specialty
- Prima facie case which is against fugitive
- Relative seriousness of offence or crime
- Fair trial
- Proportionality between sentence and crime or offence
ISSUES
India is having extradition treaties with various nation, despite the mechanisms of the binding treaty, the extradition process of fugitives is long, complex and highly dependent on domestic law and the policy of the requested state. This is not surprising as extradition is, after all, a sovereign decision. There are various issues with the extradition law in India and also various issues emerge between the nation not having extradition treaty and arrangements {section 3(4) of extradition act 1962}. As Autrefois convict or double jeopardy principle is incorporated in our Indian constitution under Article 20(2) [iii]which means that no person will be punished for the offence twice. Because of the principle of double jeopardy, India is not able to given punishment to David Hedley who was sentenced to 35 years in prison by a US court for the 2008 terrorist attack in Mumbai which killed more than 160 people.
Another issue is delayed responses by the Indian agencies and this can be explained by the case of lalit modi or IPL SCAM, Board of Control for Cricket in India (BCCI) filed a complaint against Mr. Lalit Modi and others in October 2010, accusing them of indulging in criminal conspiracy, cheating and forgery of accounts. The charge was that funds amounting to ₹ 468 crore had been embezzled in conducting the IPL. Lalit modi went to UK and also he ignored various summon. After many years when the case was registered, the enforcement direction, which had also registered a money laundering case against Mr. Lalit Modi and others, wrote a strong message to the Tamil Nadu police to expedite the investigation. As no significant progress was made by the Central Crime Branch of the city police, the DGP transferred the case to CBCID. This shows that India failed to extradite him from UK because of the requesting state (India) is not able to extradite Lalit modi from UK.
Poor condition of prison is a major problem with the extradition law. Due to fall short of the desired facilities like bedding, good quality food, facilities for health etc. this discourages Western nations from extraditing fugitives for human rights violations. In sanjeev chawla case[iv], he was charged for cricket match fixing and was extradited to India only by the requested nation when the judges of High court of India assured that accused person will be provided proper health facilities, personal space and with proper security and safety as cell to be occupied by the accused person exclusively. Another case of Vijay Mallya, accused of defrauding Indian banks for 90 billion rupees, is accused by both the CBI and the enforcement directorate. His lawyer raised the question that the poor conditions of the Arthur Road prison in Mumbai amounted to inhumane treatment, which led the British court to issue an order asking the Indian government to send a video of the prison to assess the conditions. Serious punishment like of life imprisonment, death penalty can also be the reason and requested state can refuse to grant extradition of the accused person to the requesting state.
Compared to other countries, India has fewer bilateral extradition treaties. One of the main troubling facts is that India has no extradition treaties with its neighboring states such as China, Pakistan, Afghanistan etc. with the absence of the treaties, India could face problems in trying to ensure the surrender of criminals fleeing to the border state. So if there is absence of this extradition treaty then this can also be major drawback or bar of the extradition law in India.
Political concerns which are regarding to the extradition arise when the legal and political concerns of the requested state take precedence over those of India. During the Bhopal gas tragedy[v] in 1984, there was evidence that then Union Carbide CEO-Warren Anderson was aware of this untested technology, flawed design, and also the dangerous location of the lethal methyl isocyanate. When Anderson visited Bhopal, a few days after the tragedy, he was arrested by the authorities, although he was soon released on bail at the order of the central government under U.S. pressure. After nearly 20 years, in May 2003, India has asked for Anderson’s extradition on the basis of criminal charges that the United States refused as it did not meet treaty conditions due to lack of evidence.
SOLUTION AND CONCLUSION
Extradition is a big step towards international cooperation in the suppression of crime. States should consider the extradition as responsibility resulting from the international solidarity in the fight against crime. In order to have the better laws, India need to maintain harmony with other nation by signing more extradition treaties and arrangements and also must improve their domestic framework. This will help in transparent and speedy extradition process. India must also take measures to regarding the poor prison conditions and potential violations of the requested person’s human rights. Indian government assurances of this are often not accepted by foreign courts. As a short-term measure, India could propose to detain the delivered offenders in prisons with better facilities. It has been rightly said by Gary becker that if cost or the penalties will be high this will directly affect the crime numbers also. As the cost of the apprehension and the conviction changes similarly the number of the offences also changes.
[i] Faraz alam sagar & pragati sharma/ extradition law: fundamental and process part 1/ mondaq (august 8, 2019)
[ii] https://indiankanoon.org/
[iii] India Const. art 20, cl.2
[iv] Devika sharma/ Sanjeev Chawla alleged in the criminal conspiracy of match fixing to be in police custody for investigation at Tihar only/ SCC online blog/ February 21, 2020/ fullur/.
[v] 1989 SCC (2) 540
[vi] Picture: Indian corporate law CAM
PROLAWFIC 