Extradition Laws: Where the Indian and the UK’s interest
overlap?
Introduction
States negotiate extradition accords in order to pursue
fugitives and other wanted persons in foreign territories, a
practice that dates back to ancient times. Extradition has become
increasingly significant as international criminal groups, such as
those linked to terrorism, narcotics trafficking, counterfeit, and
cybercrime, have grown substantially. It can be said that the
source of power of extradition arises from treaties. Upwards of a
hundred nations have extradition treaties with the United States.
Extraditions are typically problematic, and they may become mired
in geopolitical tensions even when accords are in
place. Formally, “Extradition” refers to the
handover of any individual demanded by the requesting State seeking
criminal prosecution or the imposition or implementation of a
sentence in connection with an extraditable offence. The presence
of an enforceable extradition treaty as well as the municipal laws
of the land for which extradition is requested are two elements
that influence international extradition proceedings. However, as a
gesture of good faith, an extradition procedure between two nations
can take place with no such agreement or arrangement.
Although, the cases wherein a country extradites without the prior
existence of a bilateral treaty are rare occurrences. The aim of
this essay is to provide an insight into how countries like the
United Kingdom and India have their extradition laws framed.
Furthermore, popular case-laws pertaining to extradition will be
employed to provide a practical understanding and application of
the said laws.
Indian Extradition laws vis-à-vis that of the United
Kingdom.
The Indian Extradition Act, 1962 is the source of law governing
extradition in India. The legislation governs extradition of
fugitives from India, as well as to India. The presence of any
extradition treaty between India and a different country act as a
basis of extradition. Section 2 (c) of the Act defines
“extradition offence” as (i) “in
relation to a foreign State, being a treaty State, an offence
provided for in the extradition treaty with that State;”
Furthermore, (ii) “in relation to a foreign State
other than a treaty State an offence punishable with imprisonment
for a term which shall not be less than one year under the laws of
India or of a foreign State and includes a composite
offence;“
As per the provisions under Indian Extradition Act, 1962,
extradition can be requested for criminals who are under
investigation, awaiting trial, or who have been convicted. In
instances under investigation, the law enforcement agency must work
tirelessly to ensure that it has prima facie evidence to support
the claim before the foreign state’s courts of law. The
Extradition Act is administered by the Ministry of External
Affairs’ Consular, Passport and Visa Division, that also
processes incoming and departing Extradition Requests. To speed up
and streamline the extradition process, the Indian government has
bilateral Extradition Treaties with 42 nations and Extradition
Procedures with nine other nations. Extradition might be based on a
treaty involving India and a foreign country, or, in the lieu of a
treaty, an extradition agreement. The Government of India might
make a notice under Section 3 of the Act, extending the Act’s
provisions to the nation or countries notified. Section 3(4) of the
Indian Extradition Act, 1962, stipulates that the Central
Government may, by proclaimed order, treat any convention to which
India and a foreign nation are parties as an Extradition Treaty
formed by India with that foreign state allowing for extradition in
respect of the offences mentioned in that Convention. India is also
a signatory to the International Convention to Prevent Terrorist
Bombings, which was signed in 1997. It also creates a legal
foundation for extradition in cases involving terrorism. Where the
participating nations have signed an Extradition Treaty, the
extradition request must be made in accordance with the
treaty’s particular procedures. Extradition petitions are
issued only after the lodging of a charge sheet, cognizance of the
same, and issuing of an arrest warrant, according to the Ministry
of Home Affairs’ Comprehensive Guidelines for Investigation
Abroad and Issue of Letters Rogatory (LRs). The extradition
procedure is essential if the offender is to be apprehended and
brought before Indian courts. The plea for extradition will be made
to the Ministry of External Affairs after the Investigative Agency
has filed the charge sheet and the Magistrate has taken cognizance
of it, issuing rulings justifying the committal of the alleged
perpetrator to trial and seeking the appearance of the alleged
perpetrator to face trial. The Magistrate will be directed by the
grounds listed above when executing any such arrest warrant
for the accused. The request appears in the form of a
self-contained affidavit from the Magistrate that establishes a
prima facie suit against the accused. Defendant’s
identification is established through the affidavit’s concise
facts and history of the case, including witness testimony and
pertinent documentary evidence. The acts for which the offender is
charged, as well as the articles of law specifying the maximum
penalty, must be specified. The extradition request should include
a replica of the First Information Report (FIR) duly counter-signed
by a qualified judicial authority, as well as an order of the
Magistrate justifying the accused person’s sentencing to trial
based on the evidence made accessible in the charge-sheet, with
instructions seeking to secure the perpetrator’s appearance in
Court to face prosecution in the said court from the nation of
current stay. Any such request should be accompanied with an
authentic, open-dated warrant of arrest stating the crimes for
which the accused has been charged, as well as the fact that the
Court has taken cognizance of the relevant provisions. In case
wherein the specified procedure under the Indian Extradition Act,
1962 is not followed, any such extradition request may be
denied.1
Extradition Treaty between India and the UK
Since both the US and Indian extradition laws have been
discussed, lastly, the extradition treaty between India and the
United Kingdom will be addressed. The reasoning behind the same is
such that there is one treaty which has been a constant source of
challenges for India since it was struck, i.e., the infamous
India-UK bilateral treaty. In 1992, India and the United Kingdom
struck an extradition deal. Just two petitions for extradition of
fugitives living in the UK have been approved ever since. Until
now, all previous pleas have remained unanswered. Extradition
procedures in the United Kingdom are sluggish. UK extradition has
encountered a brick block due to either general extradition
conditions not being satisfied or relevant impediment to the
procedure being triggered. Throughout all cases, the defense teams
sought to smear the Indian authorities, charging them of ill faith
and heinous conduct. For the past several years, it has been
difficult to keep Indian fugitives’ white-collar offences out
of the press. To mention a few from a lengthy array, Vijay Mallya,
Nirav Modi, and Lalit Modi. Vijay Mallya, accused of the
biggest economic frauds and financial crimes, is yet to be
extradited due to allegations of political motivation and human
rights violations in Indian jails. Affluent fugitive Nirav Modi has
relied heavily on the Vijay Mallya case rulings. His claim is based
on human rights, citing a dreadful physical state in Indian
Prisons that leads to suicide. Most extradition cases involve
significant financial criminals, like the ones mentioned above. As
per Article 1 of the Extradition Treaty involving India and the
United Kingdom, it is India’s and the United Kingdom’s
responsibility to extradite any individual charged or convicted of
an extradition crime committed inside the territory of one State
before or after the Treaty’s entering into
force.2 In criminal proceedings, each contracting
state must provide mutual aid to the other. An extradition offence
is characterized as one that is chargeable by a prison term of at
least one year by the laws of both contracting States, excluding
political offences but including pecuniary offences or major crimes
such as murder, triggering an explosion, terrorism, and so on. If
the individual is being prosecuted for the extradition offence in
the requested State’s courts, or if the accused can show that
the trial in the requested State is unfair, repressive, biased, or
discriminating, the plea for extradition may very well be declined.
A certificate of conviction is essential when the request is for
someone who has already been convicted. The individual may be
temporarily detained by the requesting State before his extradition
request is processed in emergency circumstances. Assuming his
extradition request has still not been received within 60 days from
the date of detention, he may be released. After being extradited
to the asking State, a person can only be prosecuted for the crime
sought, any lesser crime, or any crime agreed to by the requesting
State within 45 days. Extradition may be rejected for an offence
that carries the death penalty in the seeking state but does not
carry the death penalty in the requested state for a similar
offence.3
Conclusion
Extradition was originally employed to protect states’
political and religious interests, but it progressively evolved
into an international collaboration to protect global social values
and fight crime. In a politically divided world, governments must
overcome sovereign impediments to expand their criminal justice
systems beyond national borders. As a result, the offender’s
(accused or convicted) inability to enter the country is a
substantial hindrance to the victim state’s criminal justice
system. When a criminal escapes to another nation to avoid
prosecution in a certain state, extradition allows the state to
reclaim the fugitive and prosecute him. Extradition is therefore a
method that helps a state that is politically handicapped owing to
sovereign obstacles. Despite the political obstacles, extradition
is a vital legal tool in assisting a state’s criminal justice
system.
Footnotes
1. Faraz Alam Sagar and Pragati Sharma,
‘Extradition Law: Fundamentals And Processes – Part I’
(India Corporate Law, 2022)
> accessed 14 April 2022.
2. Extradition Treaty between the Government of the
Republic of India and the Government of the United Kingdom of Great
Britain and Northern Ireland, signed September 22, 1992, ratified
November 15th, 1993.
3. Vaishali Basu Sharma, ‘As UK Becomes A Haven
For Financial Fraudsters, How Can India Improve Its Extradition
Success Rate?’ (The Wire, 2022)
https://thewire.in/business/uk-haven-financial-fraudsters-india-extradition
> accessed 15 April 2022.
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