An overview of the Indian extradition laws and the challenges in extraditing fugitives from India

INTRODUCTION

Extradition is the legal process through which one country transfers a person accused or convicted of a crime to another country where the person is sought for trial or to serve a sentence. Extradition is a crucial aspect of international cooperation in law enforcement and a key tool in the fight against transnational crimes such as terrorism, drug trafficking, and financial fraud.[1]

In India, extradition is regulated by a complex legal framework that includes domestic laws, international treaties, and diplomatic agreements. The primary law governing extradition is the Extradition Act, 1962, which defines the legal procedure for extradition and the conditions under which a person can be extradited from or to India.

The importance of the topic of Indian extradition laws and the challenges in extraditing fugitives from India cannot be overstated. India has been a safe haven for several high-profile fugitives from around the world, including Vijay Mallya, Nirav Modi, and Mehul Choksi. These fugitives are accused of multi-million-dollar financial frauds and have been on the run from Indian authorities for years. Despite multiple attempts by the Indian government to extradite them, they have managed to evade justice by exploiting the loopholes and challenges in the Indian extradition system.[2]

In recent years, the challenges and limitations of the Indian extradition system have been highlighted by several court cases and international disputes. The case of Christian Michel, the alleged middleman in the AgustaWestland VVIP chopper scam, is a good example of the challenges faced by India in extraditing fugitives. Michel was extradited to India from Dubai in 2018, but his lawyers have been challenging his extradition on legal and procedural grounds, leading to a protracted legal battle.[3]

Another example is the case of extraditing Vijay Mallya, the former owner of Kingfisher Airlines, who has been residing in the UK since 2016 to avoid legal proceedings in India. Despite India’s efforts, Mallya has not been extradited yet, and the case is still pending in the UK courts.

The challenges in extraditing fugitives from India pose a significant hurdle in the fight against international crime and have highlighted the need for reforms and improvements in the Indian extradition system. In the next sections of this blog, we will provide an overview of the extradition laws in India, the challenges faced by India in extraditing fugitives, recent developments and reforms in the system, international comparisons, and conclude with recommendations for improvement.

EXTRADITION LAWS IN INDIA

India has a complex legal framework for extradition that includes domestic laws, international treaties, and diplomatic agreements. The primary law governing extradition in India is the Extradition Act, 1962[4], which sets out the legal procedure for extradition and the conditions under which a person can be extradited to or from India.

Under the Extradition Act, a person can be extradited to or from India if the offence for which the person is sought is an extraditable offense under Indian law and the law of the foreign country. Extradition can be requested for both accused and convicted persons, and the request can be made through diplomatic channels or through mutual legal assistance treaties.[5]

India has signed extradition treaties with over 40 countries, including the UK, the US, and the UAE. These treaties set out the terms and conditions under which extradition can be granted, including the offenses for which extradition can be sought, the documentation and evidence required, and the safeguards for the human rights of the accused[6]. India has also signed several multilateral treaties and conventions on extradition, including the SAARC Convention on Mutual Assistance in Criminal Matters, the UN Convention against Transnational Organized Crime, and the UN Convention against Corruption.

The Extradition Act, 1962 provides for the extradition of fugitive offenders who have committed an offence in a foreign country and are present in India, and vice versa. The Act sets out the procedures for extradition and provides for the establishment of a Central Authority to facilitate the extradition process.

Under the Act, the Indian government can make an extradition request to a foreign government if the offence is punishable under Indian law and is also an offence under the law of the foreign country. Similarly, a foreign government can make an extradition request to India if the offence is punishable under its law and is also an offence under Indian law.

However, there are certain conditions that must be met for extradition to take place. These include:

1. The offence for which extradition is requested must be an extraditable offence under the law of both countries.
2. The person must have committed the offence in the requesting country or must be wanted for prosecution or sentencing in that country.
3. The person must not have already been acquitted or convicted of the offence in another country.
4. The offence must not be political in nature.
5. The person must not be at risk of torture or the death penalty in the requesting country.

In addition to the Extradition Act, India has also signed bilateral and multilateral treaties on extradition with various countries around the world. These treaties provide for specific procedures for extradition between the signatory countries. The Ministry of External Affairs (MEA) is the nodal agency in India for handling extradition requests and matters related to extradition. The MEA works closely with other government agencies, including the Ministry of Home Affairs and the Central Bureau of Investigation, to coordinate and facilitate the extradition process[7].

There have been several cases in which India has successfully extradited fugitives from other countries. In 2019, the United Arab Emirates extradited Christian Michel, the alleged middleman in the AgustaWestland VVIP chopper scam, to India. Michel was wanted in India for his alleged involvement in the scam, which involved kickbacks and bribes in the sale of helicopters to the Indian government.[8]

Another case is that of Samirbhai Vinubhai Patel, an accused in the 2002 Gujarat riots. He was extradited from the UK to India in 2016.[9] The Indian government had sought his extradition under the UK-India Extradition Treaty, 1992. However, despite these successful cases, India has faced several challenges in extraditing fugitives from other countries, as we will discuss in the next section of this blog.

CHALLENGES IN EXTRADITING FUGITIVES FROM INDIA

While India has been successful in extraditing several fugitives from other countries, there have also been high-profile cases where extradition has been difficult or impossible. Some of the reasons for these challenges include diplomatic and political considerations, legal barriers, and procedural delays.

One such high-profile case is that of Vijay Mallya, the former chairman of Kingfisher Airlines. Mallya is wanted in India for his alleged involvement in financial fraud and money laundering. He fled India in 2016 and has been living in the UK since then. India has been seeking his extradition since 2017, but the process has been delayed due to legal and procedural challenges. Mallya has challenged his extradition in the UK courts, arguing that the charges against him are politically motivated and that he will not receive a fair trial in India.[10]

Another case is that of Nirav Modi, a diamond merchant who is wanted in India for his alleged involvement in a multi-crore bank fraud. Modi fled India in 2018 and has been living in the UK since then. India has been seeking his extradition since 2019, but the process has been delayed due to legal and diplomatic challenges. Modi has also challenged his extradition in the UK courts, arguing that he will not receive a fair trial in India.

These cases highlight some of the challenges that India faces in extraditing fugitives from other countries. Some of the reasons for these challenges include:

• Legal and procedural barriers: The extradition process can be lengthy and complex, involving multiple legal and procedural hurdles. The accused may challenge their extradition in the courts, which can lead to further delays and complications.
• Political and diplomatic considerations: Extradition can be a politically sensitive issue, especially if the accused is a high-profile individual or the extradition request involves sensitive diplomatic relations between countries.
• Limitations of the Indian legal system: The Indian legal system is often criticized for its slow and cumbersome processes, which can make it difficult for India to effectively prosecute cases and provide assurances to foreign governments that the accused will receive a fair trial.

While India has made significant strides in extraditing fugitives from other countries, there are still several challenges that the country faces in this regard. These challenges are often rooted in legal, political, and diplomatic considerations, as well as the limitations of the Indian legal system. Addressing these challenges will require a concerted effort from the Indian government and the international community to strengthen legal frameworks, streamline extradition processes, and provide assurances of fair trials for the accused.

REFORMS PROPOSED TO MAKE EXTRADITION EASIER:

Extradition law in India has been criticized for being slow and complicated. To make the process easier, several reforms have been proposed, including:

• One of the main proposed reforms is to sign more extradition treaties with other countries. India has already signed treaties with several countries, including the UK, the US, and the UAE. However, signing more extradition treaties with other countries would help to make the process easier.
• Another proposed reform is to streamline the extradition process to make it more efficient. The extradition process in India involves multiple stages and can take several years to complete. Streamlining the process would help to expedite the process and make it more effective.[11]
• Finally, the Indian government is proposing to enact a comprehensive extradition law that would cover all aspects of the extradition process. India currently does not have a comprehensive extradition law, and enacting such a law would help to simplify the process and make it more transparent.[12]
• A case that illustrates the complexities of Indian extradition law is the case of Sanjeev Chawla. Chawla, an Indian bookie, fled India in 2000 to the UK to avoid facing charges of match-fixing. He was extradited to India in 2020 after a lengthy legal battle in the UK.[13]

India has made progress in its extradition efforts, but there is still much work to be done to make the process easier and more efficient. The proposed reforms, if implemented, could help streamline the process and make it more effective.

INTERNATIONAL PERSPECTIVE AND COMPARISON

The extradition laws vary from country to country. Some countries have more streamlined and efficient extradition processes than others. Here is an overview of the extradition laws in a few other countries:

1. United States: The US has a comprehensive extradition law that governs the process. The law provides for the extradition of people who are accused of a crime or have been convicted of a crime in another country. The US also has extradition treaties with over 100 countries.[14]

In the case is that of Huawei CFO Meng Wanzhou, who was arrested in Canada in 2018 at the request of the US. The US wants to extradite her to face charges of fraud and violating US sanctions against Iran. Meng’s lawyers have argued that her arrest was politically motivated and that she would not receive a fair trial in the US[15].

• United Kingdom: The UK has a similar extradition law to the US. The Extradition Act of 2003 governs the process, and the UK has extradition treaties with over 100 countries[16].

One recent case that highlights the challenges and limitations of international extradition is that of Julian Assange. Assange, the founder of WikiLeaks, was arrested in the UK in 2019 and is currently fighting extradition to the US. The US wants to extradite him to face charges of computer hacking and espionage. However, Assange’s lawyers have argued that he would not receive a fair trial in the US and that he could face mistreatment if he is extradited.[17]

• Canada: Canada has an extradition law that is similar to the US and UK. The process is governed by the Extradition Act of 1999, and Canada has extradition treaties with over 40 countries.[18]
• Australia: Australia has an extradition law that is similar to the US, UK, and Canada. The process is governed by the Extradition Act of 1988, and Australia has extradition treaties with over 50 countries.[19]

Compared to other countries, India’s extradition laws are considered slow and complicated. India does not have a comprehensive extradition law, and the process involves multiple stages and can take several years to complete. India has signed extradition treaties with several countries, including the US, UK, and UAE, but the number of treaties is relatively low compared to other countries.

The challenges and limitations of international extradition are significant and varied. Political considerations can heavily influence the decision to extradite someone, and a country may refuse to extradite someone if they believe that the person will not receive a fair trial in the requesting country. The differences in legal systems can also pose a challenge, as a person may not be extradited if the crime they are accused of is not a crime in the country where they are currently residing.

Additionally, extradition can raise human rights concerns, such as the risk of torture or mistreatment in the requesting country. Cross-border enforcement is also challenging, and it can be difficult to track down and apprehend someone who is in another country. These challenges and limitations of international extradition require careful consideration to ensure that the process is fair and just for all parties involved. [20]

CONCLUSION

In conclusion, extradition is a complex legal process that allows a person accused of a crime to be transferred from one country to another to face trial. India’s extradition laws have undergone significant reforms in recent years, with the introduction of new treaties, laws, and policies. These changes have made the process more efficient, streamlined, and in line with international standards. However, there are still some challenges and limitations that need to be addressed, such as political considerations, differences in legal systems, human rights concerns, and the challenges of cross-border enforcement.

To improve the extradition system in India, there are a few recommendations that can be considered.

• First, the government can work towards negotiating more extradition treaties with other countries to facilitate the process.
• Second, there needs to be more training and resources provided to law enforcement agencies involved in the extradition process to ensure that they can carry out their responsibilities efficiently and effectively.
• Third, human rights concerns must be taken seriously, and there should be a rigorous examination of the human rights records of the requesting countries before agreeing to an extradition.
• Finally, there should be more transparency and accountability in the extradition process to ensure that the process is fair and just for all parties involved.

Improving the extradition system in India will require a collaborative effort between the government, law enforcement agencies, and other stakeholders involved in the process. By taking steps to address the challenges and limitations of the system, India can strengthen its legal framework and improve its ability to extradite accused persons and promote justice.

This article is authored by Arghya Sen, student at Amity University, Kolkata.  

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[1] “Extradition.” United Nations Office on Drugs and Crime. Accessed on February 19, 2023. https://www.unodc.org/unodc/en/extradition/index.html.

[2] TIMESOFINDIA.COM / Updated: Feb 23 2022, “Rs 18,000 Crore Returned to Banks from Vijay Mallya, Nirav Modi & Mehul Choksi: Centre Tells SC – Times of India” (The Times of India) <https://timesofindia.indiatimes.com/business/india-business/rs-18000-crore-returned-to-banks-from-vijay-mallya-nirav-modi-mehul-choksi-centre-tells-sc/articleshow/89777317.cms> accessed February 18, 2023  

[3] India TO, “AgustaWestland Chopper Scam: Middleman Christian Michel Being Extradited to India: India News – Times of India” (The Times of IndiaDecember 4, 2018) <https://timesofindia.indiatimes.com/india/christian-michel-taken-to-dubai-airport-for-flight-to-india-report/articleshow/66939527.cms> accessed February 18, 2023

[4] Extradition Act, 1962, Act No. 34, India.

[5] Supra; See 4

[6] Ghosh A, “Mehul Choksi’s Extradition: Here Is List of Nations That India Has an Extradition Treaty with & How Fugitives Delay Deportations” (Latest Asian, Middle-East, EurAsian, Indian NewsJune 3, 2021) <https://eurasiantimes.com/mehul-choksis-extradition-here-is-list-of-nations-that-india-has-an-extradition-with-how-fugitives-delay-deportations/> accessed February 18, 2023

[7] InsightsIAS. (2022, April 21). What is Extradition? Retrieved February 21, 2023, from https://www.insightsonindia.com/2022/04/21/what-is-extradition-2/#:~:text=The%20Consular%2C%20Passport%20%26%20Visa%20(,incoming%20and%20outgoing%20Extradition%20Requests

[8] Supra; see 3

[9] Times of India. (2016, October 19). Gujarat riots accused extradited from UK. The Economic Times. https://economictimes.indiatimes.com/news/politics-and-nation/gujarat-riots-accused-extradited-from-uk/articleshow/54918557.cms.

[10] Outlook India. (2021, February 11). Taking all efforts to extradite fugitive businessman Vijay Mallya: Centre to SC. Outlook India. https://www.outlookindia.com/website/story/india-news-taking-all-efforts-to-extradite-fugitive-businessman-vijay-mallya-centre-to-sc/370972#:~:text=Home%20National-,Vijay%20Mallya%20Extradition%20Delayed%20Due%20To%20Legal%20Issues%2C%20Making%20Consistent,extradition%20of%20Mallya%20to%20India

[11] India’s Extradition Process: In Need of Reform” by Kishan Dutt Kalaskar, published in the International Journal of Research and Analytical Reviews in 2020

[12] Extradition law in India: Need for reforms” by Srijoni Sarkar, published in the Journal of Indian Law and Society in 2018.

[13] Match-fixing accused Sanjeev Chawla extradited to India from UK,” India Today, February 13, 2020. (https://www.indiatoday.in/sports/cricket/story/sanjeev-chawla-match-fixing-accused-extradited-to-india-from-uk-1643617-2020-02-13)

[14] Mr. Helms, “ EXTRADITION TREATY WITH HUNGARY” (Senate Executive Report 104-27 – extradition treaty with Hungary) <https://www.govinfo.gov/content/pkg/CRPT-104erpt27/html/CRPT-104erpt27.htm> accessed February 18, 2023  

[15] ingh, S. (2021, July 27). Huawei CFO makes another push against US extradition as China raises pressure on Canada. ThePrint. https://theprint.in/world/huawei-cfo-makes-another-push-against-us-extradition-as-china-raises-pressure-on-canada/712853/.

[16] Gov.uk. (n.d.). Extradition processes and review. Retrieved from https://www.gov.uk/guidance/extradition-processes-and-review.

[17] O’Carroll, Lisa, et al. “Julian Assange Arrested at Ecuadorian Embassy.” The Guardian, Guardian News and Media, 11 Apr. 2019, https://www.theguardian.com/uk-news/2019/apr/11/julian-assange-arrested-at-ecuadorian-embassy-wikileaks.

[18] CFLAW.ca. “Extradition – Which Countries Have Extradition Treaties with Canada?” CFLAW.ca | Toronto Criminal Defence Lawyers, CFLAW.ca, 2021, www.cflaw.ca/practice-area/toronto-extradition-lawyer/extradition-which-countries-have-extradition-treaties-with-canada.

[19] Australian Government Attorney-General’s Department. (n.d.). Countries which Australia has a bilateral extradition treaty. Retrieved from https://www.ag.gov.au/international-relations/publications/countries-which-australia-has-bilateral-extradition-treaty.

[20] Abhijit Singh, India’s Challenges in Extraditing Fugitives from Foreign Countries, Observer Research Foundation, June 2018. https://www.orfonline.org/research/indias-challenges-in-extraditing-fugitives-from-foreign-countries-45809/