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Mainstream, VOL LVI No 40 New Delhi September 22, 2018

Extradition of Fugitives

Tuesday 25 September 2018

by B.K. Pal

In continuation of the “Extradition Act 1962” the enactment of the “Fugitive Economic Offenders Bill 2018”, passed by the Lok Sabha and Rajya Sabha on 19-07-2018 and 25-07-2018 respectively, has also recently received the President’s Assent, as reported by The Times of India on August 5, 2018.

The issue of “Extradition” has been a matter of serious debate on account of the declining of the Government of India’s request by the governments of the UK and Malaysia to extradite fugitives like Vijay Mallaya, owner of Kingfisher Airlines and Chairman of UB Group —charged for non-payment of Rs 9000 crores of loan taken from different banks; Nirav Modi and Mehul Choksi—both accused of defrauding Punjab National Bank of over Rs 13,500 crores; and Zakir Naik—controversial Islamic preacher.

In this regard India’s earlier requests to extradiate Warren Andersen—CEO of Union Carbide responsible for the Bhopal Gas Leak disaster; Tiger Hanif — key suspect in the 1993 Surat Bomb Blasts; Ottavio Quarttocchi—wanted in connection with the Bofors Scandal, 1984; David Coleman Headley—Pakistani-American terror suspect; Gangster Chotta Rajan and Dawood Ibrahim; Zakiur Rehman Lakhvi and Hafeez Saeed—in connection with the 1993 Mumbai Blasts have also been unsuccessful.

The Extradition Act 1962 lays down the procedure for extradition of fugitive criminals from India to a foreign country or vice-versa. The clause 2 (f) of the Extradition Act 1962 describes the “fugitive” as a person who is accused or convicted of an extradition offence within the jurisdiction of a foreign state and includes a person who, while in India, conspires, attempts to connect or incites or participates as an accomplice in the commission of extradition in a foreign state, whereas the “extradition’s offence” as defined under Section 2(c) of the Extradition Act 1962 means:

(i) In relation to a foreign state, being a treaty state, an offence provided for in the extradition treaty with that state;

(ii) In relation to a foreign state other than a treaty state an offence punishable with imprisonment for a term which shall not be less than one year under the laws of India or of a foreign state and includes a composite offence.

It is also a matter of fact that due to the fleeing of such criminals the need for one state to surrender such a criminal to the other state has arisen for bringing him to justice in the country in whose jurisdiction the offence was committed. It is to be noted that basic human rights of the fugitive are to be protected. The obligation to extradite arises from the treaties/ arrangements/conventions entered into by India with other countries. At present India has extradition treaty with 37 countries and extradition arrangements with eight countries.

The extradition treaty as per section 2(d) of the Extradition Act 1962 means “a treaty, agreement or arrangement with a foreign state relating to extradition of fugitive criminals. It also spells out the conditions precedent for an extradition and provides a list of crimes which are extraditable. Even in the absence of an extradition treaty the extradition is permitted in terms of the Principles of Reciprocity.”

The Extradition Law requires that the offence alleged to have been committed should be an offence both in the requesting as well as in the requested state and there should be a triable case against the fugitive that can be issued by a Magisterial inquiry which is to precede the actual surrender/extradition.

The UK and European Commissions on Human Rights strictly adhere to the principle that the accused should not suffer political persecution or death sentence in the requesting country. In India the existence of death penalty and violation of human rights in prison and by the police are the major problems coming in the way to accede to India’s requests for extradition of such fugitives. In addition the fair trial is also to be ensured before the request of extradition is processed.

The Supreme Court, as reported in The Economic Times and The Free Press Journal on December 13, 2017, has also asked “The Centre whether it had a policy to seek extradition of persons who fled the country and refused to subject themselves to the jurisdiction of Indian courts after giving undertaking to return to face proceedings. Frequent violations of undertaking given to the Supreme Court including by businessman Vijay Mallaya, made the court ask the Centre to respond on how to deal with such cases and what action could be taken against such fugitives.”

In order to deal with the situation the Govern-ment of India has enacted “The Fugitive Economic Offenders Bill 2018” which has received the President’s assent also recently on August 5, 2018 as reported after passing of the same by the Lok Sabha and Rajya Sabha. This Act mainly deals with attachment of property of economic offenders which is described as a very weak measure to deal with fugitives.

Keeping in view the ongoing controversy in this regard, the United Lawyers Association (ULA) held a meeting on “Extradition of Fugitives—Government and People’s Role” on Friday, August 3, 2018 at the Indian Society of International Law (ISIL), Krishna Menon Bhawan, Bhagwan Das Road, New Delhi at 4:30 pm. The meeting, attended by a large number of lawyers, was presided over by the ULA President, Soli J. Sorabjee, the former Attorney General of India. It observed silence in memory of the late P.P. Rao, Senior Advocate and Founder President of the ULA, followed by speeches of K.T.S. Tulsi, Senior Advocate and MP, Rajya Sabha, Prof Sanjay Bhardwaj, Chairperson of South Asian Studies, JNU, and Dr John Dayal, a human rights activist. They all felt that the reported escape of Vijay Mallaya, Nirav Modi, Mehul Choksi and Zakir Naik was shocking and the Central Government’s helplessness in the matter was deplorable but how they are to be extradited was very much relevant as it was desired by the people. R.S. Suri, senior Advocate and former President of the SCBA, in his vote of thanks, echoing the people’s opinion, described the prevailing situation as the manifestation of a murky scenario.

The author is the General Secretary of the United Lawyers Association (ULA). He can be contacted at e-mail: bkpalsi[at]rediffmail.com

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