“No one can outrun the long arms of Law” this adage illustrates the true nature and objective of the Legal System. Upon committing an offence, the person will be eventually brought to Justice, this is the assurance that is given by the Law. With globalisation and interconnectedness between the countries, it has become easier for the offenders in India to travel abroad and try to safeguard themselves against the prosecutions faced in India.
The instance of Extradition recently came up in Abu Saleem’s Case. India’s diplomatic relation with the Portugal Government and its commitment in the case were discussed and made to the leading newspaper headlines. In this article, we will see what the case was and what are the laws that govern extradition matter, and what is the actual scenario with the Portuguese.
Extradition: Meaning and Application
Extradition is recognised as international machinery for the timely return of fugitives from foreign countries. It is defined as the “delivery of an accused or convicted individual from the country he is found in, to another country that requests his extradition.”
Section 2 (d) of the Extradition Act, 1962 defines the term “Extradition Treaty”. It says, "extradition treaty" means 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 made before the 15th day of August 1947, which extends to, and is binding on, India.
An extradition offence is one that, under the laws of both contracting States, carries a sentence of imprisonment of at least one year; it excludes political offences but includes serious offences like murder, causing an explosion, terrorism, etc., as well as offences that are solely related to the fiscal system.
Law of Extradition in India
In India, the Law that governs extradition matters is known as “The Extradition Treaty, 1962”. This law extends to the whole of India and has applied to India since 15th September 1962. This law is for extraditing persons to India and from India to foreign countries. The basis of the extradition could be a treaty between India and another country.
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Extradition Treaties
Extradition treaties are the agreements between Countries that govern the matters of extradition of persons. India currently has extradition treaties with 48 countries. The nodal government body for the extradition matters of India is the Ministry of External Affairs. It provides a detailed account of the number of fugitives surrendered from different countries.
India is a signatory to a number of multilateral treaties that offer a legally enforceable framework for extradition in order to combat international crimes, including drug trafficking, terrorism, and the hijacking of aeroplanes. Fugitive prisoners may also be demanded to be turned over to non-treaty governments. With the promise of reciprocity from India, these requests may be taken into consideration in line with the rules and regulations of the foreign state.
Abu Salem’s Case
Abu Salem is a notorious gangster currently serving multiple life sentences under separate cases. Salem was one of six individuals found guilty in 2017 under the Terrorist and Disruptive Activities (Prevention) Act of being responsible for the explosions in Mumbai in 1993 that left 257 people dead and 713 wounded. Taher Merchant and Feroz Abdul Rashid Khan received death sentences from the TADA court, while Salem and Karimullah Khan received life sentences.
In another instance, a TADA court condemned Salem to life in prison in 2015 after finding him responsible for the murder of builder Pradeep Jain in 1995. He was convicted under various provisions under the TADA Act, Explosives Act, 1884 and Arms Act, 1959, among others.
While extraditing Salem, the then Deputy Prime Minister of India, L K Advani, gave solemn sovereign assurance to Portugal that Salem would not face a Death Penalty and will not be imprisoned for more than 25 years. On this assurance, Salem was handed over by the Portugal Government to the Indian Authorities.
In September 2011, on a plea filed by Salem, the High Court in Lisbon passed a judgement saying that there had been a breach of the Indian undertaking given to the Portuguese Authorities by slapping new charges invoking the death penalty. In 2012, the Portugal Supreme Court rejected an appeal by the Central Bureau of Investigation (CBI).
Later in 2012, the Constitutional Court of Portugal stayed the decision of the Portugal High Court, alleging India for the violation of the extradition agreement. India, in its plea, also mentioned an order of the Supreme Court of India where it stayed the additional charges levelled against Salem.
In 2022, the Supreme Court Bench consisting of SK Kaul and MM Sunderesh said that India should honour the commitment given to Portugal and asked the Central Government to advise the President to use its powers under Article 72 of the Constitution of India titled “Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases”.
The Court further added that the necessary papers should be forwarded within a month on completion of 25 years of Imprisonment of Salem. For this purpose, the Central Government may also invoke the provisions of Section 432 and 433 of the Code of Criminal Procedure (Cr.PC).
The Government added and assured that the question of release of Salem will arise only in the year 2030 after the completion of 25 years of imprisonment, and the matter will be dealt with the relevant provisions of law at that point in time.
Mehul Choksi’s Case
The owner of the Gitanjali Group, a chain of retail jewellery stores with 4,000 locations across India, is Mehul Choksi, a wanted businessman from India. Choksi presently resides in Antigua and Barbuda, the country of which he is a citizen now. Indian authorities are seeking Choksi and his nephew Nirav Modi in connection with the Punjab National Bank (PNB) case, in which it is claimed that the duo cheated the bank of more than Rs 14,000 crore. Choksi is sought in India on charges of criminal conspiracy, criminal breach of trust, fraud, including conveyance of property, corruption, and money laundering. An arrest warrant has been issued against him for these charges.
Recently on 14th July 2022, the CBI filed a new FIR against fugitive diamantaire Mehul Choksi for allegedly defrauding a Canara Bank-led consortium out of Rs 55.27 crore. Additionally, Bezel Jewellery and its full-time directors, including Choksi, Chetna Jhaveri, Dinesh Bhatia, and Milind Limaye, have been booked by the agency.
Under a consortium agreement, the Canara Bank NSE 1.65% and the Bank of Maharashtra NSE 0.93 % each approved Rs 30 crore and Rs 25 crore in working capital facilities for Bezel Jewellery. The corporation is accused of not using the account for any commercial operations in order to conceal money laundering, even though the loan was provided for the production and sale of jewellery set with gold and diamonds. The company did not repay the said loan amount, the agency added.
Earlier, when Choksi was in Dominica, India was in negotiations with them, as there were no treatises or any agreement between the two countries regarding Extradition. Now, since Choksi has been shifted and is currently staying in Antigua, where India has an extradition treaty, the process may take place. Nirav Modi, Mehul Choksi's nephew, left India in 2018 when information about his suspected involvement in a bank scam surfaced. Modi filed an appeal in the UK against his extradition, claiming that he might not receive a fair trial in India in an attempt to postpone his extradition.
A UK court acknowledged the anti-Modi evidence in February 2021 but stated that there is "no evidence to suggest that Modi may not obtain a fair trial in India." Such defences and counter defences often cause his extradition to be delayed.
Conclusion
To Conclude, we can say that even when a treaty is in place, political friction can arise throughout the extradition process, which allows countries to send fugitives overseas to justice. Extradition agreements assist governments in bringing criminals who have escaped justice.
Apart from the challenges faced in extradition, lengthy procedural delays also play a vital role in the unnecessary delays and bringing the culprit to justice. What do you think?