Introduction:
It is widely acknowledged that the Government of India ("GOI"), in the recent years, has taken a tougher stance against economic offenders fleeing to foreign jurisdictions to evade criminal prosecution and to enjoy the fruits of their crimes. The GOI has made concerted efforts to increase the number of countries with which it has extradition treaties including with Afghanistan, Lithuania, Malawi and Morocco.1 The enforcement agencies such as the Central Bureau of Investigation and Enforcement Directorate have also been reinvigorated to pursue economic offenders to foreign shores through the mechanism of extradition.
Extradition is often a complex process and usually involves navigating the relevant extradition treaties or extradition arrangements, as well as the domestic laws of the country who receives the extradition request ("Requested State") from the country seeking extradition ("Requesting State") of the accused or convicted individual ("Requested Person"). India has extradition treaties with 50 countries and extradition arrangements with 11 countries.2 Extradition treaties are bilateral treaties which provide a defined legal framework and obligates the contracting states to extradite to each other, individuals that are accused, charged with or convicted of extraditable offences. On the other hand, extradition arrangements are non-binding and do not carry legal obligations on the party states.3
Since 2002, foreign countries have extradited 75 fugitive offenders to India. Of these, 24 fugitive offenders have been extradited to India in the last five years. These individuals have been extradited to India from more than 20 countries including the United Arab Emirates, Canada, United State of America and United Kingdom ("UK").4 At least 51 extradition requests by GOI are presently pending at various stages in different foreign jurisdictions.5
History of Extradition from UK to India:
Historically, India hasn't had an inspiring record when it comes to extraditing fugitives from the UK. India and the UK entered into an extradition treaty in 1992. However, between 1992 and 2016, India has successfully extradited only one individual from the UK: Mr. Samirbhai Vinubhai Patel who was extradited on 18 October 2016 in relation to the offence of murder.6 In contrast, India has made at least 23 extradition requests to the UK during this period.7
However, recently, India has had some success in terms of the extradition proceedings against Mr. Sanjeev Chawla, accused of being involved in a match-fixing scandal and Mr. Vijay Mallya accused of being involved in a banking fraud. In light of the outcome of these two cases, India is certainly turning the tides and the warning bells may be ringing for those economic offenders who considered the UK a safe haven.
Legal Framework:
- Extradition Treaty of 22 September 1992 ("Extradition Treaty")
The Extradition Treaty between the UK and India was signed on 22 September 1992 and was ratified on 15 November 1993. It provides that both countries will extradite individuals who have committed 'extradition offences' which are constituted by conduct and which under the laws of both countries is punishable for at least one year. In other words, the UK will not extradite an individual to India unless that individual is accused of an offence that would be criminal under the laws of the UK as well as India and unless the offence is serious enough that it attracts a sentence of one year. These are common requirements - i.e. double criminality and minimum punishment - which are included in most extradition treaties. Notably, the Extradition Treaty does not preclude the extradition of its own nationals by either the UK or India.
The Extradition Treaty also provides certain exceptions where extradition may be refused including where (i) the offences are of a political character; (ii) the Requested Person can satisfy the Requested State that, his extradition is being sought for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or (iii) the offence carries the death penalty in the Requesting State, to name a few. Since extradition may be refused on these grounds, they are often incorporated in the defense of Requested Persons resisting extradition.
- The Extradition Act, 2003 ("Extradition Act")
The Extradition Treaty provides the broad framework that governs the extradition between India and the UK. The relevant domestic UK law that governs extradition proceedings is the Extradition Act. The procedure provided under the Extradition Act differs depending on whether the Requesting State is a category 1 country (European Union member states) or category 2 country (other countries with which the UK has an extradition treaty). India is a category 2 country and therefore, Part 2 of the Extradition Act applies to extradition requests by India. As a category 2 country, an extradition request from India requires a decision from both the Secretary of State and the Court.
- Procedure
In order to commence the extradition proceedings, the GOI must send an extradition request through the Ministry of External Affairs to the Home Office, UK. The extradition request must be accompanied by details of the Requested Person, details of the offence, authenticated copy of the arrest warrant issued against the Requested Person etc. If the Secretary of State, Home Office certifies the extradition request, the same is forwarded to the Westminster Magistrate Court ("Magistrate Court") designated to conduct all extradition proceedings for England and Wales.8
Thereafter, the Magistrate Court may issue a warrant for arrest of the Requested Person. The Requested Person is brought to the Magistrate Court and an extradition hearing is scheduled. Pursuant to the extradition hearing, if the Magistrate Court determines that all the procedural requirements have been satisfied, and there is no statutory bar to extradition, it must send the case back to the Secretary of State for a decision on whether to order extradition of the Requested Person. The Requested Person has a right to appeal the decision of the Magistrate Court to the High Court (with leave of the High Court). However, the High Court will not hear the appeal until the Secretary of State orders the Requested Person's extradition.9
The Secretary of State must extradite the Requested Person unless the same is prohibited under the Extradition Act for the reason that the Requested Person could face the death penalty, there is no specialty arrangement between the UK and the Requested State or the Requested Person was extradited to the UK from a third state (where the consent of the third state is required and such consent has been withheld). If no statutory prohibitions apply, the Secretary of State must order extradition within 2 months from the date he or she received the case. The Requested Person has the right to appeal the decision of the Secretary of State to the High Court (with leave of the High Court). In case the Requested Person has filed an appeal against the Magistrate Court's decision, both appeals may be heard simultaneously by the High Court.10
The High Court's decision may be appealed to the Supreme Court (subject to leave being granted by the High Court or the Supreme Court itself). Leave to appeal to the Supreme Court will only be granted in specific cases involving a point of law or public importance. Subject to any pending appeal, the Requested Person must be extradited within 28 days of the Secretary of State's decision to order extradition.11
- Prima Facie Requirement
The prima facie requirement is not a prerequisite for European Union member states and category 2A territories. However, India is a category 2B territory, hence, in a case where the Requested Person has not been convicted, the Magistrate Court is required to decide whether there is enough admissible evidence to satisfy the prima facie test that there is a case to answer and that a trial of the Requested Person would be required had the offence taken place in the UK.12 In order to determine whether there is a prima facie case, the Requesting State must identify the notional offence under the UK law which corresponds to the extradition offence for which the Requested Person's extradition is being sought by the Requesting State.
In deciding whether the Requested State has established a prima facie case, the Magistrate Court may consider various types of evidence including a statement made by a person in a document, if the statement is made to a police officer or someone charged with the duty of investigating offences or charging offenders, and if direct oral evidence by the person of the fact would be admissible. 13 The Magistrate Court will evaluate a number of factors while deciding whether a statement made in a document is admissible including the nature/source of the document, relevance of the evidence etc.14 The issue of admissibility of evidence is often raised before the Magistrate Court as part of the Requested Person's defence.
- Bars to Extradition
The Extradition Act bars the extradition of a Requested Person in certain circumstances, even if there is no corresponding bar under the Extradition Treaty. In the event that the Magistrate Court determines that any of the statutory bars to extradition apply, the Requested Person must be discharged. Consequently, these are often the grounds that are taken in the defence of Requested Persons. Some of the statutory bars to extradition include, amongst others, the following:
- Double Jeopardy: - where the Requested Person would be entitled to be discharged under any rule of law relating to previous acquittal or conviction assuming he was charged with the extradition offence in the part of the UK where the judge exercises his jurisdiction;15
- Extraneous Considerations: where the extradition of the Requested Person is barred because (a) the request for his extradition is made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or (b) if extradited the Requested Person might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions;16 and
- Passage of Time: where it would be unjust or oppressive to extradite him by reason of the passage of time that has passed since the offence or since the person has been unlawfully at large.17
- Human Rights
While deciding whether a Requested Person may be extradited, the Magistrate Court must also consider whether or not extradition would be permissible in terms of the same not being in violation of the Requested Person's Convention Rights as defined under the Human Rights Act, 1988 (UK) ("Human Rights Act") which include the right to fair trial, prohibition of torture or degrading treatment etc. In case the Magistrate Court determines that the extradition of the Requested Person would result in a violation of these rights, then it cannot order the extradition.
- Letters of Assurance
In the event that there is evidence that there is a real risk of impermissible treatment that bars the Requested Person's extradition, a Requesting State may overcome this hurdle by issuing a letter of assurance. Letters of assurances provide assurance that the Requested Person will not be exposed to such a risk and will be held in particular conditions, thus discounting the perceived risk. Such assurances are an important part of extradition law. While assessing the adequacy of a letter of assurance, the Magistrate Court may consider various factors such as (i) whether the assurances are specific or are general and vague; (ii) who has given the assurances and whether that person can bind the Requesting State; and (iii) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms.18 Since a letter of assurance is a diplomatic assurance provided by the Requesting State about the future of the Requested Person, the Requested State will also evaluate whether the Requesting State is a friendly country and whether it is governed by the rule of law where there is the expectation that the assurance given will be kept.
Sanjeev Chawla Case:
The GOI issued an extradition request dated 1 February 2016 seeking the extradition of Mr. Sanjeev Chawla for allegedly acting as a conduit between bookies who wanted to fix cricket matches and Hansie Cronje, the then captain of the South African test cricket team. It was the GOI's case that Mr. Sanjeev Chawla's conduct amounted to the offence of cheating under the Indian Penal Code ("IPC") and the nominal UK offence of 'conspiracy to give or agree to give corrupt payments in England and Wales".
One of the primary issues involved in this matter was the prison conditions of the Tihar Jail, New Delhi and whether the same would be a bar to Mr. Chawla's extradition as not being compatible with his right guaranteed by Article 3 of the Convention rights i.e. prohibition of torture and degrading treatment, as contended by Mr. Chawla. This objection was based on a report of Dr. Alan Mitchell on prison conditions, which contained findings of overcrowding, violence and lack of medical facilities. In response to this objection, the GOI provided two letters of assurance regarding the prison conditions.
The Magistrate Court only considered the first letter of assurance and decided that the same was inadequate as it was in general terms, and that the evidence established that there was a real risk of inhuman and degrading treatment to Mr. Chawla, which would violate his human rights. Therefore, the Court discharged Mr. Chawla. The GOI appealed the decision to the High Court. The High Court considered the second letter of assurance. However, it concluded that both the letters of assurance were inadequate and therefore "that there remains a real risk that if Mr Chawla is extradited and held at Tihar prison that he will be subjected to inhuman or degrading treatment contrary to article 3 of the ECHR". However, the High Court indicated that the GOI may rectify the situation by providing a more suitable assurance.19
The GOI subsequently filed a third letter of assurance which, amongst other things, gave specific assurances that Mr. Chawla would be accommodated in a cell to be occupied exclusively by him, the ward where he would be lodged had inmates who had not violated any prison rules and were of satisfactory conduct and Mr. Chawla would be provided immediate medical attention if required, during his stay in the Delhi prisons. The High Court held that the information available about Tihar prisons and the terms of the third assurance were sufficient to show that there would be no real risk that Mr. Chawla would be subjected to impermissible treatment. Consequently, the High Court quashed the Magistrate Court's order discharging Mr. Chawla and directed the Magistrate Court to proceed as if Mr. Chawla had not been discharged.20
Subsequently, the Magistrate Court sent the case to the Secretary of State for his decision. The Secretary of State approved the extradition. Mr. Chawla's application seeking leave to appeal was rejected by the High Court. After an attempt to move the European Court of Human Rights by Mr. Chawla failed, he was extradited to India in February 2020.
Vijay Mallya Case:
The GOI submitted an extradition request on 9 February 2017 seeking the extradition of Dr. Vijay Mallya in relation to his involvement in a banking fraud and for the commission of the offences of cheating and criminal conspiracy under the IPC read with offences under the Prevention of Corruption Act, 1988 and Prevention of Money Laundering Act, 2002 which corresponded to the notional UK offences of 'conspiracy to defraud', 'making false representations', 'diversion and dispersal of the proceeds of lending' and 'money laundering'.
In his defence, Dr. Mallya argued that the GOI failed to establish a prima facie case. Furthermore, he contended that his extradition was being sought for extraneous considerations, namely his political opinions. Dr. Mallya also argued that his extradition was barred since the same was not compatible with his Convention rights within the meaning of the Human Rights Act. Specifically, Dr. Mallya argued that there would be a risk to his right to a fair trial (Article 6) and prohibition of torture (Article 3). Dr. Mallya also made detailed arguments objecting to the admissibility of the GOI's evidence including witness statements under Section 161 of the Code of Criminal Procedure, 1973 ("CrPC"). Dr. Mallya relied upon the evidence of several experts including a report prepared by Dr. Alan Mitchell regarding prison conditions (this expert also provided evidence during Mr. Chawla' extradition hearing). For its part, aside from placing on record substantial evidence in support of its allegations, the GOI also gave a number of assurances regarding prison conditions.21
The Magistrate Court held that that there was a prima case that Dr. Mallya had committed the offence of conspiracy to defraud and conspiracy to launder money. It did not find any evidence to support Dr. Mallya's contention that his extradition was being sought for the purpose of prosecuting or punishing him on account of his political opinions. The Magistrate Court also accepted the assurances given by the GOI with respect to prison conditions and held that there were no grounds for believing that the Requested Person would face a real risk of being subjected to treatment contrary to Article 3. Likewise, it also held that there was no evidence that Dr. Mallya was at a real risk of suffering a flagrant denial of justice in terms of Article 6. Notably, the Magistrate Court held that the witness statements under Section 161 of the CrPC were admissible. Consequently, the case was sent to the Secretary of State for a decision to be taken on whether to order his extradition. The Secretary of State approved Dr. Mallya's extradition.22
Dr. Mallya sought leave to file an appeal to the High Court against the decisions of the Magistrate Court and the Secretary of State under various grounds. Permission was refused on all grounds save one: the ground that the Magistrate Court was wrong to conclude that there was evidence "which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him".23 The thrust of Dr. Mallya's defence was that the Magistrate Court had erred in determining that the prima facie test had been satisfied and in admitting the evidence filed by the GOI. The High Court rejected both contentions, it held that the Magistrate Court was correct in determining that there was a prima facie case and that the GOI's evidence, including the witness statements under Section 161 of the CrPC, were admissible. The appeal was dismissed on 20 April 2020.24 Dr. Mallya's application seeking leave to file an appeal before the Supreme Court was dismissed on 14 May 2020. Consequently, unless Dr. Mallya is able to secure relief from the European Court of Human Rights, his extradition to India is now imminent.
Conclusion:
The successes of these two high profile extradition cases is a clear feather in the GOI's hat. Both these cases were vehemently contested by the concerned Requested Persons, and their respective defences made great efforts to prevent extradition. What emerges from these cases is that, when facing extradition to India, Requested Persons will commonly take up similar human rights and extraneous consideration arguments. In both these cases, the conditions of prisons in India was made a primary issue of the defence. However, the GOI has been able to dispel any perceived risk by giving adequate assurances. India ought to ensure that it lives up to its assurances so that the UK and other jurisdictions continue to have confidence that India will not breach assurances given by it. This may be important in case of future extradition cases. In light of these recent verdicts, the UK may no longer be a preferred destination for fugitive offenders from India. India's aggressive approach towards extradition undoubtedly is a deterrent and advances the principle that no one can escape the long arm of the law.
Footnotes
1 Lok Sabha Unstarred Question No. 2528 - Extradition of Offenders: 26.12.2018
2 Rajya Sabha Unstarred Question No. 1164 - Extradition of Criminals: 28.11.2019
3 Aarshi Tirkey, "India's Challenges in Extraditing Fugitives from Foreign Countries", Issue Brief No. 270, November 2018, Observer Research Foundation.
4 https://mea.gov.in/emtsp.htm
5 Rajya Sabha Unstarred Question No. 1664 - Fugitive Economic Offenders
6 Rajya Sabha Unstarred Question No. 1164 - Extradition of Criminals: 28.11.2019
7 Lok Sabha Unstarred Question No. 2842- Extradition from UK: 02.08.2017
9 Ibid
10 Ibid
11 Ibid
12 See Section 84(1) of the Extradition Act
13 See Section 84(2) of the Extradition Act
14 See Section 84(3) of the Extradition Act
15 See Section 80 of the Extradition Act
16 See Section 81 of the Extradition Act
17 See Section 82 of the Extradition Act
18 See Barde vs Court of Florence [2014] EWHC 614 (Admin)
19 See The Government of India vs Sanjeev Kumar Chawla [2018] EWHC 1050 (Admin)
20 See The Government of India vs Sanjeev Kumar Chawla [2018] EWHC 3096 (Admin)
21 See Decision of Westminster Magistrates' Court in The Government of India vs. Vijay Mallya dated 10th December 2018
22 Ibid
23 See The Queen of the Application of Vijay Mallya vs Government of India & Ors [2019] EWHC 1849 (Admin)
24 See The Vijay Mallya vs. Government of India & Ors [2020] EWHC 924 (Admin).
Originally published June 01, 2020.
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