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Nirav Modi PNB Scam Case – Nirav Modi to be extradited to India says UK Court

Nirav Modi PNB Scam Case – Nirav Modi to be extradited to India says UK Court

Relevance:

  • GS 2 II International Relations II Indian Foreign Policy II Challenge to IFP

Why in the news?

Punjab National Bank (PNB), India’s second-largest state-run bank, accuses Mr Modi of being one of the main suspects in a scam which defrauded it of $2bn.

What happened recently?

  • The U.K. court hearing the extradition case of Modi reviewed a recently-shot video of Mumbai’s Arthur Road Jail where the fugitive is to be held if he is extradited to face the fraud and money laundering charges brought by the Indian government
  • Barrister Helen Malcolm told Westminster Magistrates’ Court in London on Monday that the video proves that the prison conditions pose no risk of breaching the U.K.’s Article 3 obligations under the European Convention on Human Rights.

All about extradition:

Introduction:

  • 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 two factors, namely, the existence of a binding extradition agreement and the municipal laws of the country for which the extradition is being requested. Nonetheless, an extradition process can take place between two countries without any agreement or arrangement, as an act of good faith.

Indian Extradition Law:

  • In India, the extradition of a fugitive from India to a foreign country or vice versa is covered by the provisions of the Extradition Act, 1962 which forms the extant legislative basis for this area of law.
  • The act lays down the first principles of extradition law. The obligation to extradite springs out of treaties/arrangements/conventions entered into by India with other countries.
  • Under Section 3 of the Extradition Act, a notification can be issued by the Government of India extending the provisions of the Act to the countries notified. Therefore, for a comprehensive understanding of the law of Extradition, one has to read the Extradition Act in conjunction with specific treaties.

Extradition Treaty:

  • Extradition treaty, as per Section 2(d) of the Extradition Act means ‘a treaty, agreement, or arrangement with a foreign state relating to extradition of fugitive criminals.
  • An extradition treaty also spells out the conditions precedent for an extradition. It also includes a list of crimes which are extraditable.
  • Generally, extradition treaties follow a standard framework and specify the conditions under which a fugitive may or may not be extradited. Older bilateral treaties, such as India’s own with Belgium (1901), Chile (1897), Netherlands (1898) and Switzerland (1880) specify extradition offences through the “list system” and contain an exhaustive list of offences for which fugitives can be surrendered.
  • Newer treaties adopt the “dual criminality” approach, which provides that a fugitive will be extradited for an offence, only if it is a crime in both countries.
  • The dual criminality approach is more convenient than the list system and ensures that newer offences such as cybercrime, will be given due recognition in both countries and will not require renegotiation of treaty terms.
  • However, the principle of “dual criminality” is not without its challenges. To begin with, it is difficult to establish treaty principles for crimes peculiar to India’s socio-cultural conditions, such as dowry harassment, for instance.

Extradition Offence:

  • Section 2 defines Extradition Offence as:-
    • Offence provided in the extradition treaty with the foreign states; (with respect to treaty states)
    • An offence punishable with imprisonment not less than one year under India Law or law of a foreign state. (non treaty states)
    • Composite offence – offence committed wholly, or in part, in India and Foreign State, which would constitute an extradition offence in India.
  • A fugitive criminal may be extradited. A fugitive criminal as Per S.2(f) is a person who:
    • Who is accused or convicted of an extradition offence committed within the jurisdiction of a foreign state;
    • If a person is participating in the commission of an offence in a foreign state from within the shares of India then he is also liable to be extradited and is included within the expansive definition of a ‘fugitive criminal’. S.2(f) of the Extradition Act further applies to :
    • A person who, while in India:
  1. conspires,
  2. attempts to commit
  3. incites
  4. Participates – as an accomplice in the commission of extradition offence in a foreign state.
  • Therefore, a person in India, attempting/conspiring/abetting the commission of the offence from within the shores of India, is also covered in the definition of a ‘fugitive criminal’ and liable to be extradited.

Extradition Challenges to India:

  • Earlier extradition treaties, like that of Belgium (1901) and Chile (1897) with India, contained an exhaustive list of offences for which offenders will be extradited but now the dual criminality approach is followed.
  • It essentially requires the offence to be accepted and criminalized by both nations. Even though it is a more convenient process and can include even more and newer offences like that of cybercrime, it poses several challenges for India. Socio-cultural centric offence such as dowry harassment which is dominant in a country like ours is not considered or accepted as a serious offence in some other country.
  • One more principle which has its pros and cons is double jeopardy which debars punishment for the same crime twice but has been the biggest challenge for India in recent times.
  • Sometimes the challenges lie beyond treaty restrictions as that in cases where concerns of human rights violations are highlighted. For example, United Kingdom has rejected requests in the past owing to human rights concerns such as that of possibility of receiving torture, inhuman and degrading treatment.

Example of extradition cases:

  • It took nearly eight years for the Netherlands government to initiate the extradition process for Neils Holck (also known as “Kim Davy”) involved in the “Purulia Arms drop case” and charged with weapons smuggling in India.
  • In 2017, British courts rejected the extradition of alleged bookie Sanjeev Kumar Chawla, stating that his human rights may be violated over severe conditions in Delhi’s Tihar jail.

How the process of extradition can be made more smooth?

  • Extradition procedures are further complicated by unreasonable delays and variance in documentary requirements of foreign countries.
  • The first step of the extradition process is to transmit a formal extradition request through diplomatic channels to the foreign government. Once investigations are completed by state or central agencies, they forward a request containing full details of the case accompanied with translations (where required) detailing the offences charged with, witness testimonies, arrest warrant, and documents establishing identity of the requested person.
  • Irregularities that arise at this stage, such as delays in investigation, misbehaviour by police officials, improper or fabricated documents, and incorrect format of affidavits and certificates, may come to fore at the penultimate stage of judicial review before foreign courts.
  • Delays in investigation also retard the process of submitting extradition requests, or invoking Interpol mechanisms like the Red Corner Notice (RCN) that help in locating and provisionally arresting offenders.

Conclusion:

Extradition is a great step towards international cooperation in the suppression of crime. States should treat extradition as an obligation resulting from the international solidarity in the fight against crime. With the growing internationalization of crime and judicial developments, extradition law is in a state of great flux.

Mains oriented question:

What does extradition mean? In India, what is the legal basis for extradition? Discuss. (250 words)