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Critical Analysis Of The Law Of Extradition

With so many economic and criminal offenders fleeing India in recent years, the law of extradition has piqued people's interest. But how does it function? What is the significance of it? What obstacles do authorities encounter in bringing a person accused of committing a crime in India back to India? Is it merely a legal procedure or is it tainted by political pressures?

What is Extradition?

Extradition is the process by which one jurisdiction or country hands over a person accused 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 countries that is dependent on the agreements reached. The Extradition Act of 1962 governs extradition in India. Extradition is followed internationally based on norms such as 1957 European Convention on Extradition (1964). Military and religious criminals are not subject to extradition.

What is the purpose of Extradition?

Every state has competent jurisdiction over the people who live inside its borders. However, a person may flee to another state after committing a crime. Due to jurisdictional concerns, the impacted state is rendered useless in this case. However, this condition is unsatisfactory in terms of law and order, and it defeats the objective of the law by sheltering the criminal. As a result, acknowledgment of the principle of extradition is required.

What is the procedure of Extradition?

To begin, the individual who will be extradited must have committed a crime and fled to another jurisdiction. When the first criteria are completed, the requesting step begins, in which the original state from which the accused or convicted individual fled will send a request to the second state to which the individual fled.

After the second state receives the request, they will begin looking for the accused or convicted person. The function of the treaty now comes into play; if one exists, the state that has received the request will begin the search for the accused or guilty. In the absence of a treaty, the state has the right to refuse such a request right away.

As a result, after the search for the accused or convicted individual is completed and the individual is apprehended, the most critical, though the slowest, step of the extradition procedure begins.[i] The trial by jurisdiction begins at this point which implies that if a person from India flees to England, the English court begins the trial and the English court begins to request all evidence from India, which India must deliver to the seeking state, i.e., England, and only on one hundred percent satisfactory with all the shreds of evidence, the last stage starts which is starting of extradition process and when it comes to England, the trial by jurisdiction stage is very slow and that is why India is struggling with them and that is why the majority of Indian criminals are happily running away to England.

Challenges Faced in Extradition

There are several challenges faced in the process of extradition as extradition is not a responsibility of a state as per international law as it completely depends on the treaties signed between the two countries. The sections that follow look at the many legal and non-legal problems that stymie the effective repatriation of fugitives from other nations.
Issues arise both within and outside of Extradition Treaties�

Extradition treaties, in general, follow a uniform structure and establish the criteria under which a fugitive can be extradited or not. Older bilateral treaties, such as India's with Belgium (1901), Chile (1897), the Netherlands (1898), and Switzerland (1880), describe extradition offenses through a "list system," which includes an extensive list of crimes for which fugitives might be surrendered.

The dual criminality strategy is more convenient than the list method since it assures that emerging offenses, such as cybercrime, are properly recognized in both nations and treaty conditions are not renegotiated. The idea of "dual criminality," however, is not without its drawbacks. To begin with, establishing treaty standards for offenses unique to India's socio-cultural circumstances, such as dowry harassment, is challenging.[ii]

A variety of legal objections can be brought against an extradition order in court. Extradition is rarely granted for political offenses,� for nationals of the requested country, for offenses that could result in the death penalty, for offenses that would result in double jeopardy,� or for offenses that could result in actual or potential discrimination based on religion, race, or nationality.[iii]

The double jeopardy� rule, which prohibits punishment for the same conduct twice, is one of the main reasons why India has been unable to extradite David Headley from the United States.[iv] Headley, an American terrorist implicated in the Mumbai attacks of 26/11, has already been condemned to life in jail by US courts for the murder of six Americans.[v]

Extradition orders can also be challenged outside of treaty provisions. Human rights abuses, such as torture or cruel, inhuman, or degrading treatment, are usually the basis for these. The importance of the judiciary in domestic judicial systems, as well as the size of the human rights movement in that nation, determine the amount to which international courts will investigate these concerns.

Judicial review of extradition requests

In judicial review of extradition requests, the United States, for example, normally observes the concept of "non-inquiry," and does not delve into the conditions or situations that await the sought individual.[vi] European nations, on the other hand, particularly the United Kingdom, have been more willing to reject extradition requests based on human rights concerns, such as the risk of undergoing "torture, cruel, or degrading treatment" at the hands of the seeking state.[vii] As a result of the strong individual rights movements in European countries, human rights issues have gained precedence.

Following World War II, Europe and the United Kingdom established the European Convention on Human Rights (ECHR) and the European Court of Human Rights to provide a solid system for the protection of human rights. All member states are required by the ECHR to defend the human rights and political freedoms of people under their jurisdiction. When it comes to extradition, India is particularly concerned with Article 3 of the ECHR, which "prohibits torture, cruel or degrading treatment or punishment."[viii]

Indian jails serving primarily as places of punishment rather than rehabilitation�

Poor jail circumstances were linked with "torture" and "inhuman or humiliating treatment" in Soering v. United Kingdom, a landmark decision by the European Court of Human Rights.[ix] As a result, the UK and other EU nations have frequently refused extradition petitions based on the risk that the individual sought may be held in India's jails in deplorable circumstances or be subjected to custodial violence.

Indeed, overpopulation, failing infrastructure, poor sanitary conditions, and a lack of basic facilities, among other factors, all contribute to Indian jails serving primarily as places of punishment rather than rehabilitation. When considering suspected Article 3 violations, frequent instances of police misbehaviour, such as custodial assault, poor treatment, arbitrary arrests, torture, and extrajudicial killings, are also considered.

The repatriation of Sikh separatist Karamjit Singh Chahal to India was barred by the European Court of Human Rights in 1996 due to the likelihood of wrongdoing by Punjab police personnel.[x] Foreign courts looked at prison guidelines and independent studies from organisations like Amnesty International, the UK High Commission, the US Department of State, and the Indian National Human Rights Commission to come to this conclusion.[xi] Sanjeev Kumar Chawla, an accused bookie, was denied extradition to the United Kingdom in 2017, citing concerns that his human rights will be infringed at the Tihar Prison in Delhi.[xii] Although Sanjeev Kumar Chawla was eventually extradited to India in 2019. Similarly, owing to human rights concerns and jail circumstances in India, the Netherlands declined to extradite Neils Holck (alias Kim Davy), who is charged in the Purulia weapons drops case.

Because UK and European courts are inclined to view bad jail circumstances as a sort of human rights violation, fugitives frequently cite this as a point of contention during extradition proceedings. Vijay Mallya's attorneys, for example, maintained that the deplorable circumstances at Mumbai's Arthur Road Jail amounted to inhumane and humiliating punishment. In response to Mallya's lawsuit, the UK court ordered the Indian government to submit a video of Arthur Road Jail so that the circumstances may be assessed, Mallya has now been convicted for defrauding Indian banks of INR 90 billion and has also lost his final appeal against extradition, However, the Indian government was informed in October 2020 that Mallya could not be extradited at this time owing to an unnamed "secret legal matter." As a result, India must assess whether these nations are at risk of becoming "safe havens" for fugitives, considering the importance of human rights issues.

Law of Speciality

If India is successful in reclaiming custody of a fugitive, treaty requirements must be followed. The "law of specialty," a key treaty article, states that an extradited fugitive will only be punished for the crime for which he was surrendered. For example, after securing Abu Salem's return from Portugal, Indian authorities filed further accusations against him for his part in the 1993 Mumbai serial attacks.[xiii]

The act was highly panned in Portugal, and the Supreme Court of Lisbon ruled that India had broken extradition regulations. Treaty promises must be kept, since they assist to sustain mutual confidence, collaboration, and reciprocity between countries. Even though Portugal and India have a bilateral extradition deal, the MEA's revised list of India's extradition treaties makes no note of it. It is impossible to tell if the pact has been suspended or repealed without an official notification. The current state of India's pact with Portugal, however, is uncertain.

In India, there have recently been reports of high-profile fugitives implicated in economic crimes and financial irregularities. Notable among them are diamond jeweller Nirav Modi and his uncle Mehul Choksi, who are accused of defrauding the Punjab National Bank of INR 140 billion. Modi has fled to London, while Choksi has obtained citizenship in Antigua and Barbuda.

The track record of India in gaining the return of fugitive economic offenders raises doubts about the speed with which these cases would be settled. The low number of extradited economic offenders (13 compared to 28 continuing investigations) can be ascribed in part to the history of extradition treaties and legal opinion about financial irregularities being classified as a civil rather than a criminal offence.

In the past, several extradition treaties did not allow for the surrender of fugitives accused of financial and tax crimes. The exclusion for fiscal offences was based on the belief that they were not criminal acts and hence had a lower moral burden. Furthermore, because fiscal criminals pose no imminent security danger to other countries, there is no need to rush their extradition and return to the asking state.

In Conclusion, the majority of India's bilateral treaties state that anyone accused of committing fiscal crimes will be extradited back to India. However, given that India has only been able to gain the repatriation of 13 economic offenders since 2002, the chance of Modi and Choksi, as well as other economic criminals, returning to India is grim.

Reciprocity: A Solution?
The Indian government's pledge that it will extradite fugitives in comparable circumstances, known as "reciprocity," is a significant diplomatic gesture that can increase India's extradition success rate. Extradition between non-treaty nations requires reciprocity as a requirement. Reciprocity, on the other hand, can play an essential role in the repatriation of fugitives between treaty states.

In 1993, India requested that Dawood Ibrahim, a prominent underworld don sought for the 1993 Mumbai serial explosions, be extradited from the UAE. Dubai, on the other hand, did not reply favourably to India's plea. The UAE claimed that extradition is based on reciprocity, and that India has been slow to respond to extradition requests for Indians wanted in Dubai, including Sitharaman, who embezzled 42 million dirhams (INR 340 million) from a state-owned travel agency, and Ravji Bhai Pawar, a domestic servant who allegedly assaulted a family in the UAE. Ibrahim relocated to Karachi in 2015, according to reports, and given India's lack of extradition treaties with Pakistan, his return to India is doubtful.

India's extradition ties with the UAE have greatly improved over the years. According to statistics dating back to 2002,[xiv] India has returned the greatest number of fugitives from the United Arab Emirates. These figures might be attributed to the ease with which individuals, and hence fugitives, may transit between the two nations. After all, there are 2.8 million Indian expats in the UAE. However, the thawing of bilateral ties between the two nations may also be to blame for the increase in extradition cooperation. The UAE supported the US throughout the Cold War and was a close supporter of Pakistan.

With the conclusion of the Cold War and India's emergence as a key South Asian partner, the two nations have developed significant connections through energy cooperation, investment, commerce, and labour mobility. These considerations have bolstered bilateral ties and aided in the development of improved extradition agreements.

With the advantages of globalisation and integration comes the urgent problem of criminals escaping India. Given the challenges it confronts in securing the return of these fugitives, India must quickly implement reforms and use diplomacy to build a more efficient and frictionless extradition system.

  6. Ned Aughterson, The Extradition Process: An Unreviewable Executive Discretion�, Australian Yearbook of International Law 24, (2005): 13.
  7. Article 3 of the European Convention on Human Rights prohibits torture and inhuman or degrading treatment or punishment.
  9. Soering v. United Kingdom, 161 Eur. Ct. H. R. (ser. A) (1989); Also see, Daniel J. Sharfstein, European Courts, American Rights: Extradition and Prison Conditions�, Brooklyn Law Review 67, no. 3, (2002): 745.
  10. Ved P. Nanda, Bases for Refusing International Extradition Requests � Capital Punishment and Torture�, Fordham International Law Journal 23, no. 5, (1999): 1395.
  11. Daniel J. Sharfstein, European Courts, American Rights: Extradition and Prison Conditions�, Brooklyn Law Review 67, no. 3, (2002): 759.

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