From his mysterious disappearance in Antigua and Barbuda, the Mehul Choksi extradition drama moved to Dominica, where he was captured days later, and back to Antigua and Barbuda again after it suggested that the fugitive diamond trader could be shipped straight off to India from his island of escape. It held up the possibility of an intriguing denouement to the saga that began with coming to light of the PNB in 2018, but Choksi’s lawyer pointed out that it was not for Dominica to extradite Choksi to India as he was a citizen of neither of those two countries but of Antigua and Barbuda.
Who Can Be Extradited?
It all depends on the agreement the country has with another country, but there is enough elbow room to jockey around for achieving the ends of justice when pursuing a fugitive from law. India can extradite any national to a requesting country and can seek the extradition to its shores of any foreign national provided New Delhi has such a treaty with that country.
For example, in the case of the US, UK, etc., India can transfer a citizen to that country and vice-versa. But with the likes of France, Germany, Spain, Bulgaria, Bahrain, the treaty does not cover the extradition of nationals of either country.
In cases where a citizen cannot be extradited, the requesting country can press that they face prosecution in their home country for the charges for which it is pursuing extradition. However, the only condition is that the alleged offence for which extradition is being sought has to be an offence in both the countries concerned. This is called the requirement of dual criminality. It lays down thus that extradition is possible only for the offences mentioned in the extradition treaty and the act has to be recognised as a crime in both countries.
Requirements of protocol play a role in extradition cases and, in those cases where a country decides to extradite a citizen, it can ask that the accused face trial only for the acts for which extradition was sought. This has relevance to 1993 Bombay Blasts accused Abu Salem’s case. Gangster Salem, an associate of Dawood Ibrahim, was arrested by Interpol in Portugal in 2002 and extradited to India in 2005. He was sentenced to life in prison in 2017 for his role in the blasts.
Two more persons tried with him, who were Indian nationals, were sentenced to death. The death sentence was not applicable to Salem because the terms of his trial were governed by the extradition treaty with Portugal. The court had sentenced Salem to life in prison, but he had challenged his extradition and sentencing in Portugal and in India, where the Extradition Act, 1962, governs such matters, saying the terms of the treaty had been violated. But his appeal was rejected by the top courts in both countries.
How Is Extradition Done?
Given that issues of countries’ sovereign jurisdiction impinge on the extradition process, an elaborate and formal process is usually involved in extraditing an accused person. To begin with, extradition can be sought only after a warrant of arrest is issued by a court in India.
According to research by Seema Jhingan and Monica Benjamin, “(I)ssuance of a warrant for arrest is only the first step in India in the detailed process of extradition of a person to India to face criminal proceedings (as also for the issuance of Interpol notices for surveillance and arrest of the accused person, once he/she is located)."
Eventually, the Ministry of External Affairs (MEA) enters the picture and it is through its officials that the extradition request is made. There is something called a provisional arrest that also comes into play and it has to precede the application for extradition.
There is a stipulated period after the arrest within which the requesting country can seek extradition, but the accused may be released if this period lapses without an extradition request being made.
How Many Countries Have Extradition Treaties With India? Can A Country Refuse Extradition?
According to MEA, India has extradition treaties with 47 countries, including the UK and the US, and extradition arrangements with 11 others. As the terms suggest, compared with an arrangement, a treaty is a more formal framework for facilitating extradition.
But in the absence of extradition treaties or arrangements other provisions can exist for pursuing extradition or prosecution of an alleged wrongdoer. Also, countries can take advantage of UN conventions that facilitate extradition if they are signatories to such a convention and so is the country from where extradition is sought.
Extradition treaties implicitly hold that the laws of the land are more important than the request for extradition and, if any legal ground exists for refusing it, then a country can withhold assent for extradition.
For example, Choksi, who had become a citizen of Antigua and Barbuda, had challenged extradition proceedings in the Caribbean country before he reportedly fled to Dominica. Which would explain why Gaston Browne, the Antigua and Barbuda Prime Minister, had said last year: “I can assure you that he (Choksi) will be ultimately deported after exhausting all his appeals. He will be extradited back to India to face whatever charges against him. It is just a matter of time."
India has an extradition arrangement with Antigua, but no such provision in place with Dominica, which it is now learnt, is sending Choksi back to Antigua and not, as PM Browne had said, straight to India.
A country can also refuse extradition citing legal and human rights-based issues, including if it believes that basic principles of fairness and international conventions will not be adhered to in the requesting country. That has been a line taken by fugitive former liquor baron Vijay Mallya in the UK, where he cited poor conditions in Indian jails to appeal against his extradition to India.
What Are Some High-Profile Extradition Cases?
The more well-known recent names in the extradition stakes are of those involved in financial fraud, for instance, Mallya, Choksi and his nephew Nirav Modi, the second accused in the Rs 13,500 PNB scam case along with his uncle. Mallya and Modi both have had their initial appeals against extradition dismissed by British courts, but they have avenues for appeal still open to them against extradition.
A 2018 paper by Aarshi Tirkey for the Observer Research Foundation (ORF) notes that “(A) large number of returned individuals have been accused of or charged with grave offences like murder, terrorism and criminal conspiracy. A relatively smaller section of these offenders have been surrendered for economic offences, financial fraud, bank fraud and cheating (in relation to economic crimes)."
The “low numbers" of extradited economic offenders — a report from November last year said the government had stated in a Right To Information (RTI) response that it managed to catch hold of only 2 out of 72 absconding economic offenders in the previous six years — is due, among other things, to the way these offences are typically seen as being civil rather than criminal offences. The argument is that since “fiscal offenders are of no immediate security threat to foreign nations, there is no urgency to expedite their extradition process and return them to the requesting state".
In any case, the more recent high-profile extradition cases have been of gangsters Salem in 2005 and Chhota Rajan, who was extradited by Indonesia in 2015.
According to a 2019 report by IANS, the Narendra Modi government had managed to bring back 18 fugitive offenders, including alleged AgustaWestland deal middleman Christian Michel James, extradited from UAE, in the five preceding years.