Why Extraditing Fugitives is an Uphill Task for India?

Did you know in India, the success rate in extraditing fugitives is as low as 30%, with only one in every three fugitives being successfully extradited to India. Considering India’s success is abysmally low, it is important to note the challenges the country faces while extraditing fugitives from abroad. Here, we will understand the issues and the challenges!

But first, let’s see what exactly is Extradition?

The Hon’ble Supreme Court of India defined the term “extradition” as the delivery on the part of one State where the accused or convicted is found in, to the other State that requests the extradition. Extraditions are usually requested in the cases of under-investigation, under-trial, and convicted criminals. 

The entire procedure in any country depends on the existing extradition policies and its relationship with other countries, which are governed by treaties and arrangements. Apart from treaties, factors including bilateral relations and reciprocity, laws and regulations of foreign jurisdictions and human rights concern also, directly have an affect on the extradition order. Taking into account all these factors, it can be understood that the process of extradition is quite complex, involving huge amounts of resources and time. 

How does the process begin?

The process of extraditions begins with Ministry of External Affairs, which receives the requests from investigation agencies or the court of law and then transmits it to the foreign governments, who then begins the extradition inquiry and the Magistrate issues an order for the extradition of the requested person. In the next stage, the matter is brought before the foreign court for judicial review in case the fugitive challenges the extradition order. After affirmation of the extradition order by the court, the government finalizes the extradition order and asks the accused to surrender.

It is important to bring back the offenders from foreign countries to deliver timely justice as any form of delay in arrest and prosecution acts as a threat to the country’s peace and security.

India and Extradition

Extradition treaties lays down a legal framework for the return of the fugitives between country. Till date, India has bilateral extradition treaties with 47 countries and extradition arrangements with 11 countries. Under treaty mechanisms, states are obligated to consider the request of a country for extradition. However, “extradition arrangements” are non-binding with no imposition of any legal obligations on the countries.

Compared to other countries, India has lesser number of bilateral extradition treaties. One of the main concerning facts is that India does not have extradition treaties with its neighbouring states like China, Pakistan, Myanmar and Afghanistan. With the absence of the treaties, India might face issues trying to secure the surrender of the criminals who flee to the border states. The Ministry of External Affairs, in its reports provides that since 2002, India has been able to secure the return of 74 fugitives.

Challenges arising with and without Extradition Treaties

The extradition treaties adopt the “dual criminality” approach, by which a fugitive will be extradited for an offence, only if it is a crime in both countries. This approach is more convenient as it ensures that the newer offences like cybercrime is given recognition in both countries and will not require renegotiation of treaty terms. However, this approach is not free from challenges, as it is difficult principles for certain crimes that are in relation to India’s culture such as the dowry harassment. Extradition is not granted for:

• Political Offences

• Offences where death penalty is given.

• Where there will be “double jeopardy”- 

1. This clause debars punishment for the same crime twice.

2. This is the reason for which India has not been able to extradite David Headley, from U.S.

3. David, an American terrorist who was involved in plotting the 26/11 Mumbai attacks, was already sentenced to imprisonment by the U.S. courts for killing 6 Americans.

4. He is yet to be tried by the Indian Courts for the death of around 140 Indians.

• There is an actual or potential discrimination on account of religion, race and nationality.

Extradition orders can be challenged outside treaty terms as well:

• Mainly based on concerns of human rights violations, such as torture, inhuman treatment.

• UK and other European countries have an inclination towards considering poor prison conditions as a violation of human rights. The fugitives raise this issue as a challenge while extradition hearings. Vijay Mallya, who is accused of defrauding Indian banks of Rs 90 billion, is facing charges from both CBI and Enforcement Directorate. His lawyer raised the issue that the poor condition of the Arthur Road jail in Mumbai is equivalent to inhuman treatment, which lead the UK Court to issue an order requesting the Indian Government to send a video of the jail in order to evaluate the conditions.

India’s record in securing the return of economic offenders raises concerns as to whether these cases will be resolved swiftly or not.

Investigation, Procedural and Evidentiary Irregularities

The process of extradition is complicated by unreasonable delays in the documentary requirements of the foreign countries. Extradition procedure starts with sending a request to the foreign government. On completion of the investigations by the central or state agencies, they forward a request consisting of the details of the case including the offences charges with, witness testimonies, arrest warrant and the documents that establish the identity of the accused.

Here is when irregularities arise, such as delays in the investigations, improper or fabricated documents and incorrect formats of certificates and affidavits. When these issues fall below the standards of the criminal procedure of the foreign countries, the request of extradition can be denied. Documents should not only comply with the treaty conditions but also with the laws of the foreign country. When any document is not authentic and the translations are not certified by a translator, it creates a doubt regarding the validity of the allegations which ultimately leads to the denial of the request of extradition.

The UK Court, while denying the extradition request for fraud against a British Indian couple, Jatinder and Asha Rani Angurala, criticised the Central Bureau of Investigation for delays in investigation which caused the case to stay pending for 25 years.

Political Concerns

Political concerns in extradition matters arise when the requested state’s legal and political concerns are given precedence over those of India. During the Bhopal Gas Tragedy in 1984, there were evidences that the then CEO of the Union Carbide, Warren Anderson was aware of the untested technology, the faulty design and also, regarding the unsafe location of the lethal methyl isocyanate. When Anderson visited Bhopal, few days following the tragedy, he was arrested by the authorities, although he was released soon released on bail on the directions of the central government under the pressure of the U.S. After almost 20 years, in May 2003, India requested for Anderson’s extradition on the basis of criminal charges which the U.S. declined on the grounds that it did not fulfil the conditions under the treaty due to lack of evidence.

In 1993, when India requested for extradition of Dawood Ibrahim, an underworld don wanted for the 1993 Mumbai blast, the UAE said the extradition is based on reciprocity and that India did not respond quickly to the extradition requests of Indians wanted in Dubai including V. Sitharaman who robbed Rs 340 million from a state-owned travel agency. It is also now reported that Dawood has fled to Karachi in 2015 and the fact that India has no extraction treaty with Pakistan, his return to India seems very unlikely. However, India’s relation with UAE has improved with India securing the return of highest number of fugitives from the United Arab Emirates since 2002.

Conclusion

Indian Government should process extradition requests from foreign states efficiently and it must conclude extradition treaties with as many countries as possible. The Government should make efforts to enter into more bilateral extradition relations. Legal assistance treaties, issuing letters and information exchange can facilitate extradition. Apart from these India should also take into account the concerns regarding the poor conditions of the prison which is a violation of human rights of the accused. In order to improve the investigation delays, it is important to improve the capacity and organisational efficiencies of the agencies.