International and cross-border crimes present unique challenges with regard to detection, arrest, extradition, and trial. Given the increase of syndicated crimes globally, it’s become extremely crucial for countries to define their rights and obligations in combating international crime and lay down the group action 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 2 factors, namely, the existence of a binding extradition agreement and therefore the municipal laws of the country that the extradition is being requested.
Nonetheless, an extradition process can happen between two countries with no agreement or arrangement, as an act of excellent faith.
Indian Extradition Laws and Procedures
• The Government of India has entered into bilateral Extradition Treaties with thirty-eight countries like the US, USA Hong Kong, Germany, etc., and Extradition Arrangements with nine other countries so on ease and expedite the method of extradition. The difference between a treaty and a briefing is that within the former, the country is bound by the treaty and is therefore obliged to work the enshrined articles of the treaty. The latter simply denotes that the fugitive offender’s detention is set by the local laws of that specific jurisdiction. If detained, the offender can only be extradited in accordance with International Regulations.
• Domestically, the Extradition Act, 1962 (hereafter “Extradition Act”) governs the laws and processes for the extradition of fugitives from India to a remote country, or the other way around. The Ministry of External Affairs (hereafter “MEA”) is that 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 distant State
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:
a. A diplomatic representation by the Foreign State at Delhi; or
b. the govt. of the Foreign State may communicate with the Central Government through its diplomatic representation in this State; or
c. Through the other modes prearranged by the 2 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 offense if it had been committed locally. On the appearance of the fugitive offender before the Magistrate, they shall treat the case, take evidence in support of the requisition, and on behalf of the fugitive offender.
If a clear case isn’t made out, the Magistrate must discharge the fugitive offender. However, if there’s a clear case made enter favor of the requisition, the Magistrate is permitted to imprison the fugitive offender and must report the results of the inquiry to the Central Government. If there’s a written submission filed by the fugitive offender, this could even be submitted by the Magistrate to the Central Government for consideration. Upon the approval of the Central Government, the fugitive offender is going to be surrendered to the Foreign State. Bail is applicable to the detainee – it’d be applicable within the same manner as if the person were accused of committing the said offense in India.
Recent Developments in India
While India encompasses a strong regulatory framework with regard to extradition for syndicated crimes, loopholes were discovered for other crimes. Fraud cases had risen to approximately 6,000 cases within the year 2017-2018. it failed to 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 samples of recent fraud cases include the cases of Vijay Mallya and Nirav Modi, who are both facing the extradition process currently.
In light of those 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 method of law in India by seeking refuge in other jurisdictions and to preserve the sanctity of the Indian rule of law.