Vijay Mallya is one of the most talked-about and prominent business
personalities of India. Vijay Mallya owned India's biggest liquor company,
private jet, an Airbus, and many other riches such as a fleet of luxury cars and
a private yacht. Mallya left India in 2016 in the wake of cases registered by
the ED as well as the CBI for alleged fraud and money laundering of around 9000
crores. In January 2019, he was declared a Fugitive Economic Offender by the
Indian Government under the Fugitive Economic Offenders Act 2018. Mallya was
allegedly involved in false representation to the bank on his financial
condition and the value of his securities to be relied upon.
The funds raised through loans were diverted and laundered. He flew to the UK.
Now, The United Kingdom HC has rejected his application for appeal to the UK
Supreme Court against the extradition to India in the IDBI Bank fraud case.The
UK government's Home Office may soon issue a directive allowing his extradition.
In this article, the author has given a piece of background information on
Extradition in India, the India-UK treaties, and the development in the Vijay
Extradition is a system where one sovereign surrenders the fugitive offender,
criminal, or an accused to another sovereign. This delivery of individuals to
the requesting sovereign is based on treaties or bilateral arrangements.
Sometimes it is a matter of courtesy or to maintain goodwill between the
According to Black's Law Dictionary, extradition means:
The surrender by one State or Country to another of an individual accused or
convicted of an offense outside its territory and within the territorial
jurisdiction of the other, which, being competent to try and punish him, demands
The principle is based on the interest of the civilized community that the
criminal should not go unpunished and it's the comity of nations that each
country should assist the other country in delivering justice.
Principles Of Extradition In India
The concept of extradition in India revolves around three principles of
extradition. The following:
- Principle of Double Criminality
The principle of dual criminality states that, Extradition can only be made
available if the offense committed by the Individual is an offense in both
the jurisdictions.it means that the requested state can refuse to extradite
the fugitive offender if the offense is not a criminal act in their state.
- Principle of Specialty
The extradition is first requested to the state. The Individual can only be
tried to the offense mentioned in the extradition request by the state. The
main object of the principle is to prevent blanket from extradition
requests. He can be only extradited for the crime he committed which is
mentioned in the request.
But the principle can be waived after the arrest of the fugitive offender.
He can be tried for the crimes which are not mentioned in the extradition
- Political exception
The request albeit extradition can be declined if the real purpose of the
extradition is backed by political purposes. The extradition can be
requested by the states for his political opinion rather than the crime
committed by him. Also, there are exceptions like if the person has
committed acts of terrorism, even it is backed by political motives he will
be extradited. The term 'Political Offense' is not defined in
International Law. It is backed by the precedents in the respective
Analysis On Extradition In India
Law relating to extradition in India is governed by the Extradition Act, 1962.
Extradition Treaties obtained between India and other countries govern the
extradition principles between the said countries. Section 34 of the 1962 Act,
has extra-territorial jurisdiction.
It envisages that:
Extradition offense committed by any person in a Foreign State shall be deemed
to have been committed in India and such person shall be liable to be prosecuted
in India for such offense.
In the case of Daya Singh Lahoria v. Union of India
, The Supreme Court
expatiated the importance of extradition. The Court observed that the laws of
extradition in India are a great step for international cooperation in dealing
with crime. It is for this reason that the Congress of Comparative Law at Hague
in 1932, resolved that States should treat extradition as an obligation
resulting from the international solidarity in the fight against crime.
India- Uk Extradition Treaty
The Government of India presently has bilateral Extradition Treaties with
forty-two countries and Extradition Arrangements with nine more countries to
quicken and ease the process of extradition. The extradition treaty between the
Government of India and the Government of the United Kingdom of Great Britain
and Northern Ireland was signed and came into force in December 1993.
The largest number of fugitives have been extradited from the UAE (19), followed
by the US (nine). So far, only one fugitive has been extradited from the UK,
namely Samirbhai Vinubhai Patel, on charges of murder and criminal conspiracy.
According to Article 1 of the Extradition treaty of India and the UK, India and
the UK have to extradite any person being accused or convicted of an extradition
offense committed within the territory of one State either before or after the
entry into force of this Treaty. Each contracting state shall afford each other
mutual assistance in criminal matters. An extradition offense is defined as
the offense which is punishable in both the contracting States by a term of
imprisonment for more than one year excluding offenses which have political
character but inclusive of terrorism, causing an explosion, etc.
The request for extradition could be refused if the person is being tried for
the extradition offense in the courts of the requested State or else if the
accused satisfies that the prosecution in the requested State is unjust,
oppressive, prejudiced, or discriminatory.
Where the request is for a person already convicted, then a certificate of
conviction is necessary. In urgent cases, the person may be arrested by the
requested State until his extradition request is processed. However, he may be
set at liberty after the expiration of 60 days from the date of arrest if his
extradition request has not been received. Once a person is extradited to the
requesting State, he can only be prosecuted for the offense requested, any
lesser offense, or any offense consented to by the requested State within a
period of 45 days.
Extradition may be refused for an offense involving capital punishment in the
requesting State whereby no death penalty is given in the requested State for
the same offense. After extradition is granted, the requested State shall
surrender the accused at an indicated point, or the requesting State shall
remove the person from the territory within one month or as specified.
With the advent of Globalization and the connectivity with other countries, it
has been less difficult for the States to catch hold of the fugitive offender of
the country. But there are several complexities which the Government would face
during the extradition process. India's unsuccessful attempts to bring back
offenders like David Headley, Warren Anderson, and Vijay Mallya, for example, it
becomes important to understand the obstacles that face the country in
extraditing fugitives from abroad.
Generally, extradition treaties follow a standard framework and specify the
conditions under which a fugitive may or may not be extradited. Older bilateral
treaties, specify extradition offenses through the list system and contain an
exhaustive list of offenses for which fugitives can be surrendered. Newer
treaties adopt the dual criminality
approach, which provides that a
fugitive will be extradited for an offense, only if it is a crime in both
countries. To begin with, it is difficult to establish treaty principles for
crimes peculiar to India's socio-cultural conditions, such as dowry harassment,
The double jeopardy
clause, which debars punishment for the same crime
twice, is the primary reason why India, for example, has been unable to
extradite David Headley from the US. Headley, an American terrorist involved in
plotting the 26/11 Mumbai attacks, has already been sentenced to imprisonment by
US courts, for 22 killings six Americans. However, Headley is yet to be tried by
Indian courts for the deaths of nearly 140 Indian nationals in the same attacks.
Soering v. the United Kingdom
, a landmark judgment decided by the European Court
of Human Rights equated poor prison conditions with “torture” and “inhuman or
degrading treatment”. As a result, the UK and other European countries have
often denied extradition requests on the possibility that the requested person
will be subject to poor conditions or custodial violence in India's prisons. In
2017, British courts rejected the extradition of alleged bookie Sanjeev Kumar
Chawla, stating that his human rights may be violated over 30 severe conditions
in Delhi's Tihar jail.
Because of the strong inclination of UK and European courts to consider poor
prison conditions as a form of human rights violation, fugitives often raise
this as a challenge during extradition hearings.
Of late, instances of high-profile fugitives involved in economic offenses and
financial irregularities have surfaced in India. Notably, jeweler diamond Nirav
Modi and his uncle Mehul Choksi, who have allegedly duped the Punjab National
Bank of approximately INR140 billion. Modi has escaped to London, while Choksi
has reportedly taken up citizenship of the Caribbean island of 38 Antigua.
Extradition procedures are further complicated by unreasonable delays and
variance in the documentary requirements of foreign countries.
Despite binding treaty mechanisms, the process of extraditing fugitives is
lengthy, complex, and heavily depends on domestic law and politics of the
requested state. This is not surprising as extradition is, after all, a
sovereign decision. Nonetheless, there are factors involved in extradition over
which India can exercise control. India could adopt a targeted approach to
resolve these issues, and thereby improve its success rate.
Now, those bankers have rejected Vijay Mallya's proposal to accept 4000 crores.
The UK Home Secretary Sajid Javid orders Mallya's extradition to India and
recently the Royal Court dismissed the appeal of Mallya against a 2018
extradition order by a lower court in the country.
Written By: Ukkash F,
- 2001 (4) SCC 516
Sastra School of Law, Tamil Nadu.