Recently, the news of the Hong Kong Extradition law protests and the extradition of the defaulter Liquid baron and Kingfisher Airlines Vijay Mallya have been making headlines in news. Vijay Mallya is a noted defaulter in India who dodged in loans worth 9000 crores which he had no intention of repaying the amount and took shelter in Britain and since then fighting the case in UK High Court. Similarly, the defaulter diamond businessman Nirav Modi is facing trial for extradition in the UK Court. Thus, it becomes much important for us to know a little about the concept of Extradition.
The Hon’ble Supreme Court of India has stated “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 justifiable in the courts of the other state”. It is a subject of International law where one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction over the new law enforcement as a result of any mutual agreement or treaty signed between them.
It is a cooperative law enforcement process between the two jurisdictions and is largely dependent on the arrangements and understanding made between them.
An extradition request for an accused can be initiated in case of under-investigation under trial and convicted criminals. Besides the legal aspects of the process, extradition also involves physical transfer of the custody of the person being extradited of the legal authority of requesting jurisdiction.
Through the process of the extradition, one sovereign jurisdiction typically makes a formal request to another sovereign jurisdiction (requesting state). If the fugitive is found within the territory of the requesting state arrest the fugitive and subject him /her to its extradition process. The process of extradition procedures to which the fugitive will be subjected to and dependent on the law and practice of the requested state.
The consensus in international law is that normally a state does not have any obligation to surrender an alleged criminal to a foreign state because one foreign state because the principle of sovereignty is that every state has legal authority over the people within its borders. Such an absence of international obligation and the desire for the right to demand such criminals from other countries have caused most of the countries to enter such agreements with the other countries.
Section 2(d) of the Indian Extradition Act 1962 defines an” Extradition Treaty as a Treaty, Arrangement/ Agreement made by India with a foreign state relating to the extradition of fugitive criminals. Traditionally speaking, most of the extradition treaties are bilateral in nature. However, most of them include the following five principles which have been endorsed by many judicial pronouncements.
1. Extradition applies only with respect to offenses clearly stipulated as such in the treaty.
2. The principle of dual criminality requires that the offenses for which the extradition has been sought to be an offense under the national laws of both the jurisdictions under the extradition.
3. The requested country must be satisfied that there is a prima facie case made out against the accused /offender.
4. The extradited person must be preceded against only the offense for which his extradition has been requested.
5. He must be accorded a fair trial taking care of the principles of natural justice.
In India, the Extradition Act 1962 provides India’s legislative basis for claiming extradition. The Act has the objective to” consolidate and amend the law relating to the extradition of the fugitive criminals from India to foreign states. The Indian Extradition Act 1962 was substantially modified in 1993 by Act 66 of 1993.
In cases of urgency, a country (for e.g. India) requests the other jurisdiction to make the provisional arrest of the fugitive pending presentation of an extradition request. A provisional arrest may be required that may be appropriate when it is believed that the fugitive may flee the jurisdiction. Such a plea may be transmitted through the diplomatic channels through the CPV Division of the Ministry of External Affairs.
Each extradition treaty specifies certain no. of documents required for a provisional arrest request and specifies the means by which the provisional arrest request must be made. The Enforcement Authority in India prepares the request for a provisional arrest and sends the same to the concerned authority of a foreign country through a diplomatic channel.
An alleged offender may not be extradited to the requesting state in following cases-
i. No Treaty in Existence between the countries;
ii. The crime committed by the offender in the requesting country is not identified in the treaty as a crime which may vary in relation to one state from the other as provided in the treaty;
iii. In cases of purely military and Political Offences;
iv. For the want of dual criminality(i.e. if the conduct is not a crime in both countries);
v. Procedural considerations i.e. if the procedure provided in the treaty or the law governing the offense is not properly followed.
The cases related to extradition are decided on the basis of conduct alleged against the defendant on the basis of whom 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. That is the mandate of the trial-court in the requesting country.