23 March 2020

By: Shubham Shree, Partner, Atharva Legal & Kritika Swami, Director, Field and Academia Program, Atharva Legal

As defined by The Hon'ble Supreme Court of India, 'Extradition is the delivery on the part of one State to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and are justifiable in the Courts of the other State'[i]

 An Extradition request for an accused can be initiated in the case of an under-investigation, under-trial and convicted criminals. In cases under investigation, abundant precautions have to be exercised by the law enforcement agency to ensure that it is in possession of prima facie evidence to sustain the allegation before the Courts of Law in the Foreign State.

The Extradition Act 1962, provides the legislative basis for extradition within the territorial jurisdiction of India. To consolidate and amend the law relating to the extradition of fugitive criminals and to provide for matters connected therewith, or incidental thereto, the Extradition Act of 1962 was enacted. It consolidated the law relating to the extradition of a criminal fugitive from India to foreign states. The Indian Extradition Act, 1962 was substantially modified in 1993 by Act 66 of 1993.

Section 2(d) of Extradition Act 1962 defines an 'Extradition Treaty' as a Treaty, Agreement or Arrangement made by India with a Foreign State, relating to the Extradition of fugitive criminals and includes any treaty, agreement or arrangement relating to the Extradition of fugitive criminals made before the 15th day of August 1947, which extends to and is binding on, India. Extradition treaties are traditionally bilateral in character. Yet most of them seem to embody at least five principles, as endorsed by several judicial pronouncements and state practice with respect to domestic extradition legislation:

• First, the principle of extraditable offences lay down that extradition applies only with respect to offences clearly stipulated as such in the treaty;
• Second, the principle of dual criminality requires that the offence for which the extradition is sought, be an offence under the national laws of the extradition requester country as well as that of the requestee country;
• Third, the requestee country must be satisfied that there is a prima facie case made out against the offender/accused;
• Fourth, the extradited person must be proceeded against only with regard to the offence (rule of specialty) for which his extradition was requested; and
• Finally, he must be accorded a fair trial (this is naturally, part of international human rights law now). Judiciary and other legal authorities are likely to apply these principles equally to situations where no extradition treaty exists.

The Consular, Visa and Passport Division of the Ministry of External Affairs (CPV), Government of India is the Central/Nodal Authority that administers the Extradition Act and it processes, as well as all incoming and outgoing Extradition Requests.

Requests for extradition on behalf of the Republic of India can only be made by the Ministry of External Affairs, Government of India, which formally submits the request for Extradition to the requested State through diplomatic channels. Extradition is not available at the request of members of the public.

India is able to make an extradition request to any country. India's treaty partners have obligations to consider India's requests. In the absence of a treaty, it is a matter for the foreign country, in accordance with its domestic laws and procedures, to determine whether the country can agree to India's extradition request on the basis of assurance of reciprocity. Similarly, any country can make an extradition request to India. Extradition is possible from non-treaty States as Section 3(4) of the Indian Extradition Act, 1962 provides for the process of extradition with non-treaty foreign States.

Generally, the following documents must be included in a provisional arrest request to be sent to a foreign country:

• A statement of why the request is urgent;
• A physical description of the person, including his/her nationality, his/her photograph and his/her fingerprints, if available, a list of the offences for which the person's arrest is sought;
• The location of the person sought, if known;
• A brief statement of the facts of the case, including, if possible, the time and location of the offence;
• A brief description of the offences committed by the fugitive and availability of prima facie evidence against him;

A prima facie case "means at first blush or at first sight, a complete case against the accused ... in order to prove a prima facie case, there must be evidence direct or circumstantial on each element."

• A copy of the legal provision(s) setting out the offence(s) and the penalty for the offence(s);
• A statement of the existence of a warrant of arrest or a finding of guilt or judgment of conviction against the person sought; a copy of the warrant issued by the Court of law in India for the person's arrest may have to be enclosed; and
• A statement that if the person is provisionally arrested, India will seek the person's extradition within the period required by that country's law.

What is a pandemic?

A pandemic describes an infectious disease where we see significant and ongoing person-to-person spread in multiple countries around the world at the same time. The last time a pandemic occurred was in 2009 with swine flu, which experts think killed hundreds of thousands of people. Pandemics are more likely if a virus is brand new, able to infect people easily and can spread from person-to-person in an efficient and sustained way.

Coronavirus (COVID-19), which has been declared as a pandemic by the World Health Organization (WHO) appears to tick all of these boxes. With no vaccine or treatment that can prevent it yet, containing its spread is vital.

Coronavirus and Extradition

The recent incident of the process of the court being affected by the epidemic has led to suspension of work as happened in the UK in the trial of fugitives like Nirav Modi and in Irish High court where Donald Binchy J. is of opinion that making any order of extradition "might encourage flight" and incarceration would only lead to an increase in the chance of the accused being exposed to COVID-19.

Another case appeared in the case of an accused named Mark John Rumble who has been extradited from Thailand and is being tested for the virus.

The abovementioned cases are a few instances of extradition proceedings being affected by COVID-19 which raises the dilemma whether extradition of the accused is as important as his right to health and safety vis-a-vis safety of the law enforcement agency and that of the prisoners who may get exposed if an infected fugitive is kept in their vicinity. The economic cost of the arrangement to be made in bringing the fugitive and the peculiar scenario of keeping him quarantined raises another important issue, which is yet to be answered.

Recently, the Supreme Court Bench comprising of Chief Justice SA Bobde and Justice Nageswara Rao took suo moto cognizance of the need to seek means for social distancing in prisoners across correctional homes in the country, and how this situation is complicated by overcrowding. Expressing concerns on overcrowding in prisons, the Apex Court has consequently issued notice to Chief Secretaries of all states and UTs, and Prison Departments. The government of Punjab is mulling the idea of release of more than 5000 prisoners to prevent the outbreak of the epidemic in the prisoner.

Therefore the only way to deal with the peculiarity of this situation is to adjourn the proceedings sine-die as carrying on the proceedings will only be halted by various issues like absence of attorneys, limitations on modes of travel for the concerned officer to go to the foreign land for representing the nation and further risking exposure to them. Although there are technological tools like videoconference through which proceedings of courts can be carried on but they will be limited to the decision of the concerned authorities in foreign land.

The right to health and safety of the accused as well as the standard of care adopted towards government personnel responsible for bringing back identified fugitives under the extradition law must be of paramount importance. Failure to do so can give rise to grave consequences and a snowball effect, which can jeopardize the health of many.

[i] State of West Bengal vs. Jugal Kishore More &. Anr. 1969 (1) SCC 440 6.

 

This article was published at Live Law.in on 23 March 2020 but was taken down by Atharva Legal LLP owing to Live Law's ideologically biased, Hinduphobic and politically inclined editorial policy.