Nisman Parpia
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 within the Courts of the opposite State.” An Extradition includes a formal procedure of one state surrendering an individual to another state for prosecution or even punishment for a number of crimes committed in the requesting country’s jurisdiction.
Under international law, extradition is a diplomatic process by which one state requests another to effect the return of custody of a fugitive criminal or in other words an escapee for crimes punishable by the laws of the requesting state and committed outside the jurisdiction of the particular country where such person has taken refuge. The process of extradition is subject to two factors, they are:
- Existence of a binding extradition agreement.
- The municipal laws of the country from which the extradition is being requested.
Extradition is known as an obligatory initiative undertaken by the state in good faith to promote and execute justice. Some states do allow extradition requests in some cases where they have exchanged declarations of reciprocity with the requesting states, while others don’t.
There has indeed been a practice of refusing extradition requests in the absence of binding international obligations between the states because often escapees are surrendered on the basis of municipal law or as malafide by the state authorities. The basis of extradition could be a treaty between India and a foreign country.
When can it be initiated?
Extradition requests for an accused are often initiated within the case of under-investigation, under-trial and convicted criminals. In cases under investigation, abundant precautions need to be exercised by the enforcement agency to make sure that it’s in possession of clear evidence to sustain the allegation before the Courts of Law within the Foreign State.
The Indian Extradition Act, 1962
In India, the extradition of a fugitive from India to a foreign country or vice versa is governed by the provisions included in the Indian extradition act 1962 (5) which was modified in 1993 by Act 66 of 1993. It also helps to amend and consolidate the law relating the extradition of fugitive criminals providing for matters connected to it or even incidental thereto.
Under Section 3 of the Act, a notification might be issued by the government of India extending the provisions of the Act to the country/ countries notified. The legal basis for extradition with states with whom India does not have an extradition treaty is provided by section 3 (4) of the Indian extradition act, 1962 which states that the central government may treat any convention (by notified order) to which India and a foreign state or parties as an extradition treaty made by India with that foreign state providing for extradition in respect of the offences laid out in that convention.
Procedure of enactment
If there exists an extradition treaty between two particular countries, an extradition request has to be made mandatorily in terms of some specific requirements.
In terms of the comprehensive guidelines for investigation Abroad and issue of letters rogatory (LR’s) issued by the Ministry of home affairs, extradition requests can be made only after the filing of the charge sheet and cognizance of the same and issue of an arrest warrant.
It had to be noted that If the accused is to be arrested and produced in any court of India the requisite action is through the extradition process.
Hence after the filing of charge sheet by the Investigative Agency, the Magistrate takes cognisance of the same, issues orders/directions justifying the committal of the accused to trial and then seeks the presence of the accused to face trial, the request for extradition would be made to the Ministry of External Affairs.
The request is made in form of a self-contained affidavit by the Magistrate, making out a prima facie case against the accused which includes an affidavit; brief facts along with history of the case referring to the statements of witnesses adding to it relevant documentary evidence, provisions of law invoked with description of the accused specifying the offences for which the accused is charged adding to it the provisions of law which depict the maximum sentence thereof.
An order of the magistrate justifying the accused person’s committal to trial must be made available in the charge-sheet of the extradition request, it is to include directions seeking to secure the presence of the accused in court to stand trial in the said court from the country of present stay along with a copy of the first information report countersigned by the competent judicial authority.
Conditions under which Extradition cannot be applied-
Section 31 of the Extradition Act sets out the circumstances in which a fugitive offender shall not be surrendered or returned to a foreign state. These restrictions include the following:
- An alleged offender might not be extradited to the requesting state within the absence of a treaty.
- The state is not obligated to extradite aliens/nationals.
- The state isn’t obligated to extradite where the crime isn’t identified as an extraditable offence within the treaty.
- Terrorist offences and violent crimes are excluded while defining political offences for the purposes of extradition treaties.
- Extradition is denied where due procedure under the Extradition Act of 1962 is not followed.
- where the extradition of the Requested Person is barred because the request for his extradition is made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or he/she might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.
- where it would be oppressive to extradite him/her by reason of the passage of time that has passed since the offence or since the person has been unlawfully at large.
- The fugitive offender is already serving a jail sentence in India for any conviction.
Note- There are cases where dual criminality exists where the conduct constituting the offence amounts to a criminal offence in both the requesting country and the foreign country. Here the offence may be tried in either country depending on factors such as territory where the offence was committed as well as the nationality of the accused.
What are extradition treaties?
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 concerning the Extradition of fugitive criminals made before the 15th day of August 1947, which extends to and is binding on India.
Extradition treaties are traditionally bilateral in character. Yet most of them seem to embody a minimum of five principles, as endorsed by many judicial pronouncements and state practice in respect of domestic extradition legislation.
Requests 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 State through diplomatic channels.
History of extradition (UK to India)
India has entered into an extradition treaty with UK multiple times in 1992 however till 2016, India successfully extradited only a single individual from UK named Mr. Sakirbhai Vinubhai Patel Who was extradited on 18 October, 2016 for the offence of murder but surprisingly India has made at least 23 extradition requests to the UK during this period. Recently India has shown somewhat success in terms of the extradition proceedings against Mr Sanjeev Chawla, who has been accused of being involved in a match fixing scandal, let us know more about him.
- India’s recent success in extradition treaty:-
The Sanjeev Chawla case
The Government of India issued an extradition request on 1 February, 2016 seeking the extradition of Mr. Sanjeev Chawla for allegedly acting as a conduit between bookies who wanted to repair cricket matches and Hansie Cronje, the then captain of the South African test cricket team, the first issues involved during this matter was the prison conditions of the Tihar Jail, whether an equivalent would be a bar to Mr. Chawla’s extradition as not being compatible together with his right guaranteed by Article 3 of the Convention rights ( prohibition of torture and degrading treatment), it had been based on a report of Dr. Alan Mitchell on prison conditions, which contained findings of overcrowding, violence and lack of medical facilities.
Responding to the present objection, the GOI provided two letters of assurance in accordance to the conditions of prison. The magistrate Court considered the primary letter of assurance and decided that it had been inadequate generally, but the evidence established that there was real risk of inhuman and degrading treatment Mr Chawla. Hence the court discharged Mr Chawla on the other hand the GOI appealed this decision to the supreme court .
The supreme court considering the second letter of assurance concluded that both the letters were inadequate and thus “that there remains a true risk that if Mr Chawla is extradited and held at Tihar prison that he are going to be subjected to inhuman or degrading treatment contrary to article 3 of the ECHR”.
After this the government of India filed a 3rd letter of assurance which gave specific assurances that Mr Chawla is going to be accommodated during a cell which can be occupied exclusively by him and he would be provided immediate medical attention if required during his stay in Delhi prisons.
The HC held that the terms of third assurance was sufficient to point out that there would be no real risk to Mr Chawla.Consequently, it quashed the Magistrate Court’s order discharging Mr. Chawla and directed the Magistrate Court to proceed as if Mr. Chawla had not been discharged.
Subsequently, The Secretary of State approved the extradition. Mr. Chawla’s application seeking leave to appeal was rejected by the supreme court . After an effort to maneuver the Court of Human Rights by Mr. Chawla failed, he was extradited to India in February 2020.
Conclusion and alternatives
In the light of the result of this case, India is surely turning the tide and therefore the warning bells could also be ringing for those offenders who considered the united kingdom as a secure paradise. India’s aggressive approach towards extradition undoubtedly may be a deterrent and advances the principle that nobody can escape the long arm of the law. within the end i might wish to conclude by mentioning some alternatives to extradition:
- Deportation- instead of extraditing non nationals, some countries comply with deport them sometimes outside of any formal administrative procedure.
- aExtraordinary rendition- during this , a fugitive is spirited from a rustic refuge and denied access to its judicial process.
- Waiver – A fugitive can waive the formal extradition process and agreed to be transferred to foreign authorities.
- Lastly, foreign prosecution: The foreign government prosecutes the individual, which frequently occurs when the individual may be a national of that country and thus not extraditable.
*Fundamentals of extradition (corporate.cyrilamarchandblogs.com)