The controversy of Neerav Modi and Vijay Mallya for extradition to India has brought the focus of the people on Extradition Process India. A brief write up by our expert on Extradition Process India for Vijay Mallaya and others.
The news of Vijay Mallaya being extradited from Britain by the London Court has again drawn the attention of the general public on various aspects of extradition of Vijaya Mallay and the issues related to it.
The definition of 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. An Extradition request for an accused can be initiated in the case of under-investigation, under-trial and convicted criminals. In cases under investigation, abundant precautions have to be exercised by the law enforcement agency to ensure that it is in possession of prima facie evidence to sustain the allegation before the Courts of Law in the Foreign State.
There are arrangements made through various international treaties and conventions and bilateral agreements between various countries for extradition. A Request for Extradition can be initiated against a fugitive criminal, who is formally accused of, charged with, or convicted of an extradition offence.
In India, The Extradition Act 1962 provides the legislative basis for extradition. India ratified two UN Conventions – the United Nations Convention against Corruption (UNCAC) and the United Nations Convention against Transnational Organised Crime (UNCTOC) and its three protocols in 2011 . Article 16 of UNCTOC can be used as a basis for extradition of fugitive criminals accused/convicted of offences that are classified as Organized Crimes.
Extradition vs Deportation
Extradition and Deportation are two distinct terms but often used loosely by us so let us understand the difference between the two first. Deportation is expelling any person from the country whereas Extradition is the delivery of a person to another country. In simple words, it means that a person involved in a criminal case in a country can be extradited by the other country where he is residing.
Extradition request for an accused/ fugitive can be initiated by the Government of India after chargesheet has been filed before an appropriate Court and said court having taken cognizance of the case has issued orders/directions justifying accused/fugitive’s committal for trial on the basis of evidence made available in the charge sheet and has sought presence of the accused/fugitive to face trial in the case. All extradition requests should be supported by the relevant documents and as per the format prescribed under the UNCTOC and to be signed by the authority designated under the said format. In India it is signed by the Minister of External Affairs with all supportive documents.
In plain and simple words if the criminal fugitive from one country runs away to the other country then also he can be brought back to the country by way of the extradition process India. The first requirement of such condition is that both the countries should have extradition treaty with each other then only the process of extradition can be initiated. In the absence of any such treaty, it is for the country to consider the request and return the fugitive subject to the law of his land.
An Extradition request for an accused can be initiated at the country where the fugitive is residing by a country who wants the custody of such fugitive. Extradition is by and large is a legal process but the final decision on it is political in most of the countries. Extradition process India is regulated under The Extradition Act 1962.
This Act contemplates signing of Extradition Treaties on a bilateral basis with other countries for the extradition of fugitive criminals on the basis of dual criminality. Comprehensive arrangements are made for defining various types of offenses and conditionality’s of extradition which is to be accepted by the signing states on a bilateral basis. Section 2(d) of Extradition Act 1962 defines an ‘Extradition Treaty’ as a Treaty,
Agreement or Arrangement made by India with a Foreign State, relating to the Extradition of fugitive criminals and includes any treaty, agreement or arrangement relating to the Extradition of fugitive criminals.
The main and important parameters of the extradition process India are dual criminality. It implies that the offense committed by the person should be an offense in both the countries then only the request for extradition of the person is initiated.
Some cases are very complex and peculiar when persons commit the crime in two countries and run to the third country thereby making the extradition process very complex. In some cases, the persons conspiring from other countries are also involved which also makes the extradition very complex.
In some countries the offenses of economic cheating, homosexuality are not criminal offenses hence it is very uncertain to get the fugitive criminals of such crimes back to India. Besides this whenever, Indian Government files an extradition process against a fugitive the defense is mainly taken against the Indian criminal justice system.
The provision of death penalty in India and alleged human rights violations in prisons/police torture have proved to be major hurdles in acceding extradition requests from India to other countries, especially the UK with the European Commission on Human Rights (ECHR). There are instances when the extradition of a fugitive criminal from India has been denied on these grounds.
Till date, India has the Extradition Treaty with 47 countries and 62 fugitive criminals have been obtained through the said treaty. Besides the Extradition Treaty, there are bilateral agreements with 42 countries which ensures that the criminals of one country are handed over to the other country on request.
Under the Indian set up Consulate Division, Ministry of External Affairs, Government of India is the Nodal Authority that administers the Extradition Act and it processes incoming and outgoing Extradition Requests.
Any request for extradition on behalf of the Republic of India can only be made by the Ministry of External Affairs, Government of India, which formally submits the request for Extradition to the requested country through diplomatic channels. Extradition is not available at the request of members of the public or a common citizen of the country.
As per the existing practice, the country with whom the extradition treaty has been signed is under obligation to consider the extradition request and in the absence of a treaty, it is at the discretion of the said foreign country, in accordance with its domestic laws and procedures, to determine whether the country can agree to India’s extradition request on the basis of assurance of reciprocity. Similarly, any country can make an extradition request to India.
During the extradition proceedings, one of the main and important aspects considered that post-surrender the fugitive will get a fair trial in the requesting country. A broad examination of judicial procedures in the requesting state is done.
This is not an absolute principle and the requested state may question the procedure of the requesting state if the same is prima facie contrary to fundamental principles of justice and there is a high risk of a fugitive being prejudiced by the process of extradition.
For extradition from the UK for an Indian citizen, the issues such as human rights violations in jails, minority rights, possible political motivation, have weighed heavily with UK authorities in not acceding to extradition requests made by India.
EXTRADITION REQUEST AND PROCESS FROM AN INDIAN COURT ( NOT INDIAN GOVERNMENT) TO A FOREIGN COURT.
This process is regulated through the Mutual Legal Assistance Treaty (MLAT). India has MLATs with various countries. The authority notified under the MLAT is entrusted with the task of facilitating service of Summons/Warrants in the foreign country by the Indian courts. Section 105 of the Cr.P.C stipulates that the Court desiring to issue summons/warrant to any person residing in any country/place outside India has to issue the summons to the authority in the foreign country notified by the Central Government.
Even after the accused does not appear after the proper service of the summons of the Indian courts, and the court has a reason to believe that the accused is trying to avoid the process of law, the India court may proceed to issue warrants.
The process of extradition is thereafter started by Indian Government against the said accused for which specific procedure is prescribed. In most of the cases, the the request also has to be supported by information describing the facts of the offense and procedural history of the case. In addition to this, a statement of the provisions of law describing the essential elements of the offense/punishment is also required.
The request for extradition also has to be accompanied with a copy of the warrant/order of arrest issued by the judge, charging document. Once the extradition request is made in conformity with the provisions of the MLAT, the foreign government takes a decision on the same the and may also precede grant or denial of such a request.
Pending extradition of any fugitive, provisional arrest request can be made in cases of urgency. A provisional arrest request may be appropriate when it is believed that the fugitive may flee the jurisdiction of that country as well. The request for provisional arrest may be transmitted through diplomatic channels through the Consulate Division of Ministry of External Affairs.
The facilities of International Criminal Police Organization (ICPO- INTERPOL) may also be used to transmit such a request through the National Central Bureau of India, CBI, New Delhi. Each extradition treaty specifies the documents required for a provisional arrest request and specifies the means by which a provisional arrest request must be made.
The Police/Law Enforcement Agency concerned in India, prepares the request for a provisional arrest and sends it to the MEA, which in turn forwards the same to the concerned authority of the foreign country through diplomatic channels.
Similarly, India can accept a provisional arrest request from any foreign State. On receipt of an urgent request from a foreign State for the immediate arrest of a fugitive criminal, the Central Government may request the Magistrate having competent jurisdiction to issue a provisional warrant for the arrest of such fugitive criminal. Section 34B of the Extradition Act provides for Provisional arrest.
After the person is arrested, he is brought before a magistrate and remanded in custody or released on bail if there are special circumstances that justify the grant of bail. The foreign country which made the provisional arrest request has a limited time to make a formal extradition request to India, which is, usually 45 or 60 days from the day on which the person was arrested.
Extradition process for a fugitive from India can be started by a request submitted through diplomatic channels by a foreign country. In India, it proceeds through Ministry of External Affairs and may be presented to an Extradition magistrate to order to determine whether the request is in compliance with an applicable treaty, whether it provides sufficient evidence to believe that the fugitive committed the identified offense(s), and whether other treaty requirements have been met. If so, the magistrate certifies the case for extradition at the discretion of the External Affairs Minister.
Except as provided by treaty, the magistrate does not inquire into the nature of foreign proceedings likely to follow extradition. Extradition cases are decided on the basis of the conduct alleged against the fugitive. The court takes a prima facie view of the allegations and reasonable grounds for suspicion have to be established for which prima facie determination of committal of an offense is made. The court deciding on extradition is not supposed to conduct a mini-trial to decide whether the allegations are justified.
India adheres to the principle of extraditing its own nationals. The memorandum on “Extradition” submitted by the Government of India to the Asian-African Legal Consultative Committee at its Third Session (Colombo, 1960), leaves no doubt on this matter. However, in practice, India follows the dual system, by extraditing nationals on the basis of reciprocity. If the other treaty State does not extradite, India also bars extradition of own nationals.
The Government of India has taken up the matter of extradition of Vijay Mallaya from London courts vigorously and has now been successful which is a very good news. It also shows that the political will supported with the extradition treaties entered by India are effective and result oriented.