Akshata Manvikar
Jindal Global Law School
Vijay Mallya, who once lived a lavish lifestyle as the former chief of Kingfisher airlines, has now been seeking asylum in the United Kingdom. Another Indian who has been hiding in United Kingdom is the famous luxury diamond jeweller and designer Nirav Modi who was once ranked 57 in the Forbes billionaires list. He then became famously infamous for the Punjab National Bank Scam case. It is a subject of curiosity to know what will happen to these fugitives. Before dwelling deep into their extradition cases that the India Government has been striving to achieve, it is essential to understand what Extradition means and what are the International law requirements for the same.
Extradition is defined under the Black’s law dictionary as “the surrender of a criminal by a foreign state to which he has fled for refuge from prosecution to the state within whose jurisdiction the crime was committed, upon the demand of the latter state, in order that he may be dealt with according to laws.”[i] Interestingly enough, like many other legal terms the term extradition was derived from the Latin words ex and traditum that translate into ‘handover of fugitives’[ii]. The implication of this definition is that it involves more than two states making a deal in an International Law arena.
Following are the general principles of extradition:
- Principle of Specialty: This principle states that an individual is to be tried only for the offences that have been specified in the extradition request. This principle has been highlighted in the case of Daya Singh Lahoria v. Union of India[iii] where it was stated, “A fugitive criminal brought into this country under an extradition decree can be tried only for the offences mentioned in the extradition decree and for no other offence and the criminal courts of this country will have no jurisdiction to try such fugitive for any other offence.”
- Principle of Double or Dual Criminality: This principle states that only if the act in question is an offence in both the jurisdictions (the requesting as well as requested State) will the extradition be made available.
- Political Exception: There is an exception provided that a person cannot be extradited for an offence of political character. The term “Political offences” however has not been defined in international law[iv]
India has entered into bilateral Extradition Treaties with thirty eight countries including United Kingdom where two of India’s most wanted fugitives can be found. Further, India has signed and ratified two United nations Conventions which are the United Nations Convention against Transnational Organised Crime and United Nations Convention against Corruption. There is no extradition possible without these international treaties, thus enshrining the principle, nulla extradition sine lege which means no extradition without a law.
As we attempt to highlight the extradition problems in the case of Vijay Mallya and Nirav Modi it would make sense to understand the Extradition Treaty between India and United Kingdom. Article 1 of the Extradition Treaty between the two States clearly states that each one has the duty to extradite any person accused or convicted of an offence committed within the territory of one State. Therefore, contracting to provide mutual assistance in criminal matters.[v] The extradition request can be refused if the accused proves that the prosecution that has been requested by the State is discriminatory or unjust. Also, if the request is for a person who is already convicted for a particular crime then a conviction certificate is a must.
If it is a matter of urgency then he will be arrested but will be set free after expiration of 60 days from the date of arrest if a formal request has not been received.[vi] An additional rule laid down is that the extradited person shall be prosecuted within 45 days for the offence he committed, or lesser offence or any offence consented by the requested State.[vii]
If the offence committed is punished by capital punishment then extradition will be refused if the requested State does not provide capital punishment for the same offence. Once the extradition is granted then the accused shall be surrendered at a particular place or will be removed from the territory within one month or such time as specified.
Vijay Mallya and Nirav Modi both have sought asylum in the United Kingdom. It is rather fascinating that since the extradition treaty was signed between India and United Kingdom only two fugitives have been granted extradition out of which one is Mr Samirbhai Vallabhai Patel. The rest of them have been successfully living there whilst the proceedings go on slowly. The reason is that United Kingdom has become a go to destination for financial fugitives as there is limited restrictions on establishing a business. Additionally, it has now become the most significant tax haven and a known money laundering State. It has been established that the State is responsible for the breakdown of the global corporate tax system.[viii] It might not be surprising that the International Monetary Fund reported that approximately 14% of the foreign direct investment was booked in the United Kingdom network. The reason behind this is that post-Brexit the country has been trying to attract international investments by reducing the corporate taxes and easing the establishment of companies which is exploited by these criminals. Owing to the problems arising in getting back the fugitive economic offenders, the Indian parliament has passed the Fugitive Economic Offenders Act that allows the government to confiscate the properties and assets of the people who are fugitives seeking asylum in another State, outside India’s jurisdiction with the aim to evade prosecution.
Vijay Mallya has been using the defence of Article 9 (c-iii) of the Extradition treaty between the two States which states that one of the ground to refuse extradition would be that it has not been made in “good faith”. Therefore, the defence team has asserted that the Central Bureau of Investigation is influenced and hence the case against him is unjust in nature. Further, they added that the Jail in Mumbai has inhumane conditions. Nirav Modi has used the defence of “killing himself” and that he has wrongly been attacked. They further undermined the court’s trust in the Indian government by raising a scandalous allegation that the government leaked his medical report.
Despite all the hurdles, the Indian government has been adamant and is striving to get the fugitives back. There have been irregularities and delays in investigation, improper documents and wrong affidavits or incorrectly formed certificates.[ix] But the Indian government has been understanding the United Kingdom legal system and its standards and will follow accordingly. As of now Vijay Mallya seems unlikely to be extradited anytime soon as the legal issues need to solved and as far as Nirav Modi’s case is concerned the same is in a time consuming rut. The high profile economic cases have managed to find asylum in a country that is on their side. But if the extradition takes place then the connection between the two States will be tightened. Therefore, as stated by the Congress of Comparative Law at Hague in 1932, that the States should treat extradition as an obligation resulting from the international solidarity in the fight against crime. The United Kingdom if follows this principle will allow the fugitives to be successfully extradited to India in no time.
REFERENCES:
[i] See: Black‘s Law Dictionary, Centennial Edition (1891-1991), Sixth Edition, p. 585
[ii] Chatterjee, D., & Chatterjee, A. (2020, September 24). Extradition and Asylum: Concept and Important Case Laws. Retrieved from https://www.legalbites.in/extradition-and-asylum
[iii] (2001) 4 SCC 516
[iv] Goel, S. (n.d.). Extradition Law: Indian Perspective. Retrieved from http://ssrn.com/abstract=2712453
[v] Extradition Treaty between the Government of the Republic of India and the Government of the United Kingdom of Great Britain and Northern Ireland, signed September 22, 1992, ratified November 15th, 1993.
[vi] Sagar, F. (2019, August 08). Extradition Law: Fundamentals And Processes – Part I – Criminal Law – India. Retrieved from https://www.mondaq.com/india/white-collar-crime-anti-corruption-fraud/834852/extradition-law-fundamentals-and-processes-part-i
[vii] Sagar, F., & Sharma, P. (2019, August 08). Extradition Law: Fundamentals and Processes – Part I. Retrieved from https://corporate.cyrilamarchandblogs.com/2019/08/extradition-law-fundamentals-processes-part1/?utm_source=Mondaq
[viii] New ranking reveals corporate tax havens behind breakdown of global corporate tax system; toll of UK’s tax war exposed. (2020, November 24). Retrieved from https://www.taxjustice.net/press/new-ranking-reveals-corporate-tax-havens-behind-breakdown-of-global-corporate-tax-system-toll-of-uks-tax-war-exposed/
[ix] Fugitive Diamantaire Faces Extradition from UK to India: The Anticorruption Blog Fugitive Diamantaire Arrested in UK Faces Extradition to India. (2019, July 31). Retrieved from https://www.anticorruptionblog.com/commercial-bribery/fugitive-diamantaire-faces-extradition-uk-india/
