The Author, Roshni Bagai, is a 4th-year, LLB student at City University of Hong Kong. She is currently interning with LatestLaws.com.

Introduction

International and cross border crimes present unique challenges with regards to detection, arrest, extradition and trial. Given the rise of syndicated crimes globally, it has become extremely crucial for countries to define its rights and obligations in combating international crime and lay down the due process of law and pertinent procedures. To further this aim, many countries have adopted extensive extradition frameworks. Extradition refers to a diplomatic and formal process vis-à-vis the return of custody of a fugitive offender for crimes committed outside the jurisdiction of the country where the fugitive takes refuge and is punishable by the laws of the requesting State. International extradition processes are subject to two factors, namely, the existence of a binding extradition agreement and the municipal laws of the country for which the extradition is being requested. Nonetheless, an extradition process can take place between two countries without any agreement or arrangement, as an act of good faith.

General Principles of Extradition Cases

There are numerous general principles applied to extradition cases internationally.

  • Principle of Dual Criminality: Extradition can only be enforced when the act in question is an offence in both jurisdictions (i.e. the State requesting and State requested). The raison d'être is to provide the State requested with the volition to refuse to extradite the fugitive offender if their conduct is, according to them, not considered to be of criminal nature. 
  • Principle of Specialty: In order to inhibit blanket extradition requests, an extradited individual may only be tried for offences explicitly stated in the extradition request. Only upon the fugitive offender’s surrender to the requesting State can this principle be waived. This allows the fugitive offender to be tried for offences in furtherance of the offences for which they were surrendered for.
  • Exception for Political and Military Offences: Any extradition must be declined if the request is being made in attempts to charge an individual for a political or purely military offence. Although the term ‘political offence’ has not been clearly defined in international law, it is thought to include, but is not limited to, the expression of political opinions. However, it is largely subject to the domestic law of the State requested. It must be noted that acts of terrorism committed with a political motive and other violent crimes do not fall under this exception.

Indian Extradition Laws and Procedures

The Government of India has entered into bilateral Extradition Treaties with thirty-eight countries such as the United Kingdom, the United States of America, Hong Kong, Germany, etc. and Extradition Arrangements with nine other countries so as to ease and expedite the process of extradition. The difference between a treaty and an arrangement is that in the former, the country is bound by the treaty and is therefore obliged to act upon the enshrined articles of the treaty. The latter simply denotes that the fugitive offender’s detention is determined by the local laws of that particular jurisdiction. If detained, the offender can only be extradited in accordance with the International Regulations.

Since 1997, India has been a party to the International Convention for the Suppression of Terrorist Bombings, which proves a legal basis for extraditing individuals in relation to terror crimes. Additionally, the government signed and ratified two United Nations Conventions in May 2011, namely the United Nations Convention against Transnational Organised Crime (thereafter UNCTOC) and its three protocols, as well as the United Nations Convention against Corruption (thereafter UNCAC).

Domestically, the Extradition Act, 1962 (thereafter “Extradition Act”) governs the laws and processes for the extradition of fugitives from India to a foreign country, or vice versa. The Ministry of External Affairs (thereafter “MEA”) is the designated central authority for all incoming and outgoing extradition requisitions for the surrender of a fugitive criminal.

Extradition of a Fugitive Offender from India to a Foreign State

  1. Procedure for Extradition

Where a treaty is enforced between India and another country, a requisition for the surrender of a fugitive offender must be submitted to the Central Government by:

  1. A diplomatic representation by the Foreign State at Delhi; or
  2. The government of the Foreign State may communicate with the Central Government through its diplomatic representation in that State; or
  3. Through any other modes agreed upon by the two States.

Upon requisition, the Central Government may, if it thinks fit, order for an inquiry by a Magistrate. It must be noted that Magistrate refers to a Magistrate of First Class or Presidency Magistrate and who would have jurisdiction to enquire into the offence if it had been committed locally. Subsequently, on receipt of an order from the Central Government, the Magistrate will issue an arrest warrant. A person arrested on a warrant issued shall not be detained for more than three months unless within that period the Magistrate receives an order from the Central Government.

On appearance of the fugitive offender before the Magistrate, they shall inquire into the case, take evidence in support of the requisition and on behalf of the fugitive offender. The relevant evidence may include exhibits, dispositions, official certificates of facts and judicial documents, if duly authenticated (i.e. signed or certified under the hand of a judge, magistrate or officer of the State, or by the official seal of a Minister of the State).

If a prima facie case is not made out, the Magistrate must discharge the fugitive offender. However, if there is a prima facie case made out in favour of the requisition, the Magistrate is permitted to imprison the fugitive offender and must report the result of the inquiry to the Central Government. If there is a written submission filed by the fugitive offender, this should also be submitted by the Magistrate to the Central Government for consideration. Upon the approval of the Central Government, the fugitive offender will be surrendered to the Foreign State. Bail is applicable to the detainee - it would be applicable in the same manner as if the person were accused of committing the said offence in India.

The fugitive offender will not be returned to the Foreign State if the said offence falls in the exception category aforementioned, the prosecution of the offence is barred by time in the Foreign State, if the person is accused of any offence in India, other than the offence for which extradition is sought, or is undergoing sentence under any conviction in India until after he has been discharged, whether by acquittal or on expiration of his sentence or otherwise; and until the expiration of fifteen days from the date of his being committed to prison by the Magistrate.

  1. Provisional Arrest Requests by Foriegn States

A provisional arrest request is issued in urgent situations where the presentation of an extradition request is pending and it is anticipated that the accused may flee the jurisdiction before the extradition request can be made. This allows for the immediate arrest of a fugitive offender.

India can accept provisional arrest requests from any foreign State. When a foreign State sends such a request, the Central Government may request the Magistrate with competent jurisdiction to issue a provisional arrest warrant which in turn, would be executed by the concerned Indian Police agency. However, the issuance of the warrant is subject to the following conditions:

  1. An arrest warrant for the person exists in the foreign State or the person has been convicted of an offence against the law of the foreign State;
  2. The offence in question is an extradition offence; and
  3. The dual criminality principle is complied with.

Upon the fugitive offender’s arrest, the same process for an extradition is followed, as aforementioned. The foreign State that makes the provisional arrest request has a limited timeframe to make a formal extradition request to India, which is anywhere between 45 to 60 days from the day the accused was arrested. The exact number of days is subject to the extradition treaty signed with each respective country. For non-treaty States, they have 60 days. These timeframes are in place to safeguard the liberties of the accused in suspended animation for an indefinite period without any accusation or complaint. If no formal extradition request is received during this period of time, the accused is permitted to apply to the Magistrate for their release from custody. Nonetheless, their release does not prejudice any subsequent re-arrests and extradition after the receipt of the extradition request at any later point.

Extradition of a Fugitive Offender from a Foreign State to India

India has the ability to make an extradition request or provisional arrest request to any country. Nonetheless, India’s treaty partners are obliged to consider the country’s requests. As explained above, in the absence of treaties, the acceptance of an extradition request from India is subject to the local laws and procedures of that particular jurisdiction. 

  1. Procedure for Extradition

In order for the MEA to make an extradition request through diplomatic channels, a charge sheet must first be filed, with the cognisance of the same and issuance of an arrest warrant by the Magistrate. The request takes the form of an affidavit by a Senior Officer in-charge of the case and is sworn before a Judicial Magistrate of the Court in charge of the accused’s prosecution. It contains the following information:

  1. Brief facts, background, circumstances and history of the case with reference to the relevant evidence;
  2. Address, description, identity and nationality of the accused;
  3. Relevant provisions of the law invoked;
  4. Relation of the offence in respect of the law of the requested State to establish dual criminality;
  5. Offences for which the accused is charged in India;
  6. An undertaking to the effect that death penalty will not be sought or imposed. If imposed, it will not be carried out (only if the offence carries a death sentence and the Extradition Treaty with the requested State does not recognise the death penalty).
  7. An assurance that the fugitive offender will only be tried for the extradition offences when extradited to India;
  8. Specific confirmation that the offences are not barred by the period of limitation;
  9. References to documents and information that would establish the offences for which extradition is sought, together with a detailed written narrative setting out the acts or omissions which are alleged against the accused in respect of each offence for which his extradition is sought.

Besides the affidavit, the following documents are also necessitated as part of the extradition request:

  1. Certificate of Evidence
  2. Letter from the concerned court
  3. Copy of the First Information Report, duly countersigned by the competent judicial authority;
  4. Copy of the charge sheet, duly countersigned by the competent judicial authority;
  5. Open-dated, original warrant of the arrest
  6. Documents to evidence the nationality, identity and address of the accused;
  7. Photograph and/or fingerprints of the accused;
  8. Copy of the relevant provisions under which the accused is charged; and
  9. Any related evidence.

Notably, in the event that the offence calls for capital punishment in the requesting State, extradition may be refused by the requested State whereby no death penalty is enforced for the same offence.

  1. Provisional Arrest Request by India

To submit a provisional arrest request to a foreign State, India must refer to the respective extradition treaty (if they have one) to prepare the relevant documents. The Police/Law Enforcement Agency concerned in India will prepare the request and send it to the CPV Division of the MEA, which will then forward the same to the concerned authority in the foreign State through diplomatic channels. The International Criminal Police Organisation may also submit a request through the National Central Bureau of India, CBI, New Delhi. 

Generally, the following documents are required as part of the provisional arrest request:

  1. A statement justifying the urgency of the request;
  2. Identity, nationality, physical description of the accused;
  3. Photograph and fingerprints of the accused (if available);
  4. Description of offences for which the accused is sought and the availability of prima facie evidence against them; (Note: Prima facie evidence may include, but is not limited to, a copy of the legal provisions in relation to the relevant offences; a statement of the existence of an arrest warrant, etc.)
  5. Location of the accused (if known); and
  6. Description of the facts of the case.

Recent Developments in India

While India has a strong regulatory framework with regards to extradition for syndicated crimes, loopholes were discovered for other crimes. Fraud cases had risen to approximately 6,000 cases in the year of 2017-2018. it did not account for fugitive economic offenders until 2018, through the enactment of the Fugitive Economic Offenders Act. In 2019, the banking and finance sector suffered losses of a staggering ₹41,000 Crores resulting from frauds. Prime examples of recent fraud cases include the cases of Vijay Mallya and Nirav Modi, who are both facing the extradition process currently. In light of these fugitives using the loophole to their advantage and absconding from India, the Fugitive Economic Offenders Act was enacted in 2018 with the aim of deterring fugitive economic offenders from evading the process of law in India by seeking refuge in other jurisdictions and to preserve the sanctity of the Indian rule of law.

Recent Developments in Foreign Jurisdictions

Upon China’s enactment of the National Security Law in Hong Kong, various countries such as the United Kingdom, Australia and New Zealand have suspended their extradition treaties with the city. These actions come after the declaration of the National Security Law’s scope extending to worldwide criminal jurisdiction over overseas activism, its creation of special bodies and hand-picked judges for prosecution, its punitive sentencing in relation to a new array of draconian, vague and broadly-defined crimes.

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Roshni Bagai