This Article has been authored by Sahana Priya Satish, a fourth year law student at Tamil Nadu National Law University, Tiruchirappalli.
In recent times, there have been a lot of cases where individuals who are accused of committing financial scams or frauds have fled the country in order to evade prosecution in India. When these offences relate to misappropriation of huge sums of money, it has a negative economic impact on the country. To deal with such a situation, the Indian government negotiates with the country in which the accused is absconding for the purpose of extraditing him so that he can be tried under the process of law in India. Under International law, extradition refers to the process by which one country, upon the request of another country, effectuates the return of an individual who is accused or convicted of a crime(s) which is punishable under the laws of the requesting state. The process of extradition is regulated between countries by becoming party to extradition treaties and within the countries by enacting specific legislations for this purpose.
Fugitive Economic Offenders Act, 2018
In India, there are a few legislations which deal with economic offences such as the Prevention of Money-Laundering Act, 2002, the Benami Properties Transactions Act, 1988 and the Companies Act, 2013. The Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973 also contain provisions relating to offences such as forgery and cheating. But these legislations were found to be inadequate when it came to dealing with cases of high-value economic offenders fleeing the country to avoid prosecution. The existing procedures were also found to be time consuming and inefficient.
Recognising this shortcoming and the urgent need to enact a law which dealt with the prosecution of absconding individuals who are accused of committing high-value white collar crimes, the Fugitive Economic Offenders Act was passed in 2018. Under Section 2 of the Act, a Fugitive Economic Offender (FEO) is defined as ‘an individual against whom a warrant of arrest in relation to a scheduled offence has been issued by any court in India, who (i) has left India so as to avoid criminal prosecution; or (ii) being abroad, refuses to return to India to face criminal prosecution’. In order to for an individual to be classified as an FEO, an application has to be filed by the Director, under Section 4 of the Act, asking the Special Court for such declaration along with sufficient information regarding the whereabouts of the FEO, the reasons for an individual being believed to be a FEO and a list of properties or the value of the properties which are considered to be the proceeds of the crime. Then, under Section 10, a notice is issued to the individual to appear at a specified place for hearing the application. Upon the Special Court’s satisfaction after hearing the application, the individual may be declared as a FEO and order the confiscation of his properties.
Process of Extradition in India
Currently, India has bilateral Extradition Treaties with 43 countries and Extradition Arrangements with 11 countries. When an individual who is to be tried in India has sought refuge in a foreign state, the Ministry of External Affairs makes a formal request for extradition of that individual on behalf of the Republic of India to the requested state through appropriate diplomatic channels. Under Indian law, the Extradition Act, 1962, deals with the law relating to extradition of fugitives from India to a foreign state and vice-versa. This Act is read along with the relevant extradition treaties, arrangements and conventions between India and the concerned country, which are recognised in the Act for the purpose of seeking surrender of the fugitive.
There are certain principles which are adhered to when it comes to extradition of fugitives. According to the principle of Dual Criminality, an offender can be extradited to the requesting state from the requested state only if the act in question is an offence in both the states. This is to ensure that the requested state has the liberty to refuse the extradition request if the act is not an offence within its jurisdiction. The Principle of Speciality states that an individual who has been extradited is only tries for the offences which have been enumerated in the extradition request. There also exists an exception in the practice surrounding extradition wherein, if the requested state is convinced that the individual in question has been requested to be extradited to be punished in the requesting state for holding a particular political opinion then the requested state can decline the extradition request. These principles are regarded as a fundamental part of international law of extradition.
Absence of Extradition Treaty or Arrangement
According to sub-clause 4 of Section 3 of the 1962 Act, in case of absence of an extradition treaty between India and another country, the Central Government has the power to regard an international convention to which both countries are parties as an extradition treaty limited to the offences which are specified in that convention. In cases where an extradition request is made (i) by a foreign state which does not share an International Convention with India and (ii) where there exists a common Convention between the two states, but the Convention does not cover the particular offence specified in the request then, India need not process the request. When India makes an extradition request to a country with which it has no bilateral treaty or other arrangement relating to extradition, the requested country, depending on its domestic laws and related procedures, decides whether the extradition request can be processed on the basis of assurance of reciprocity. In such a situation, the requested state does not have any obligation to grant the request for extradition. It is therefore a grey area which is fully exploited by offenders in India.
India and UK
In recent years, one of the popular destinations for economic offenders to seek refuge in while absconding from Indian authorities is the United Kingdom. High profile offenders such as Vijay Mallya, Nirav Modi and Sanjeev Chawla have chosen to escape to the UK to avoid prosecution under the Indian law.Since 2002, India has made a total of 28 requests to the UK for the extradition of fugitives, of which only one has come to fruition till date. It is imperative to look at the reasons for this as the prosecution of offenders who are absconding abroad becomes difficult if there are difficulties arising in the extradition of such individuals from the requested state.
The extradition process between India and UK is facilitated by the India-UK Extradition Treaty, 1992.The domestic law that governs the extradition of individuals from UK to other states is the Extradition Act, 2003. One of the reasons for the difficulty in the process of extradition of offenders from India to UK is the complexity of procedure of the domestic law in UK. When India sends a request for extradition through diplomatic channels, the UK Secretary of State decides whether to certify the request depending on the merits of the case. After this, the Court decides whether a warrant of arrest is to be issued and if it is satisfied to do so, the concerned person is arrested and brought before the Court. This is followed by a preliminary hearing and then an extradition hearing.During the hearing, the judge goes into the question of whether the conduct of the accused warrants an extradition offence and whether it meets the requirements that would amount to a criminal offence according to UK standards.
The Court also decides whether the extradition would be incompatible or disproportionate to the offender’s human rights. The UK is a strict defender of human rights and as a signatory of the European Convention on Human Rights, Article 3, which talks about the prohibition of torture, inhuman or degrading treatment or punishment, becomes relevant when it comes to extradition of individuals from UK to India. The UK considers poor prison conditions, such as overcrowding, lack of basic amenities, poor infrastructure etc., to be within the ambit of Article 3 which has quite often been a point of contention while dealing with India’s extradition requests.
If the Court decides in favour of the extradition of the person then, the Secretary of State decides whether an order of extradition should be passed. This decision of the Secretary of State is open to appeal at the High Court and subsequently at the Supreme Court. This shows that the process of extradition from UK is extremely time consuming and cumbersome which explains the inefficiency of the extradition process between the two countries.
When economic offenders abscond to other countries instead of facing trial in India, it is imperative to have a time efficient extradition process so that the offenders can be treated in accordance with the process of law. In order to resolve the shortcomings in the process, the extradition process in the requesting state as well as requested state should be in harmony so that they facilitate in the process of extradition. In India, the enactment of a specific law dealing with these types of offenders will hopefully lead to a more systematic procedure when it comes to extradition.