UK-India Extradition – What Goes Wrong?

Crime


The process of extraditing criminals from territories which we have no jurisdiction over is as difficult as it sounds. However, when it comes to the United Kingdom, this difficulty is multiplied manifolds. Ever since the extradition treaty between India and the UK was signed in 1992 and ratified the following year, India could be successful in bringing back only one criminal from the UK. Well, that was till 2016. By 2020, the number has increased to two, and will hopefully get to three if Vijay Mallya is successfully extradited as well. This research paper specifically tries to address and understand the different possible reasons behind such a unique scenario. I call this unique since India does not share the same fate with any other nation apart from, possibly, Canada. Eventually, the reasons that I discovered through my analysis seemed to be not just questionable, but also disturbing to some extent. To analyse the situation better, I have taken the help of numerous online and offline resources and referenced different extradition cases of India with the UK as well as with other countries.

INTRODUCTION

If a person commits an offence in India and escapes to the UK, India cannot simply enter the UK and bring him back by the collar. As easy as it would have been, that is not how our international laws work. Once the person has escaped to another country, the other country becomes entitled to protect him and refuse to let the country, where he has committed the offence, take him away. In other words, the country where he escapes is capable of providing him with asylum. Albeit not absolute, it is a sovereign power of a country to grant asylum to a fugitive. Asylum can be granted on many grounds, one of them being the possibility of inhumane and degrading treatment towards the fugitive.

India’s experience with extraditing criminals from the United Kingdom has not been smooth. Despite the existence of an extradition treaty between the two countries, the UK finds it difficult to extradite criminals to India, thanks to the deplorable condition of Indian prisons. However, that is just one reason why the UK refuses to extradite criminals to our country. This reason, nonetheless, is often taken up as a primary defence by the fugitive who is, more often than not, against the extradition. And why should he not be? Who would not like to escape the brunt of India’s justice system? Therefore, spending a decade debating on whether or not they should be extradited to the requesting State looks like a more optimal solution to the accused.

My research paper emphasises the problems that have been faced by India time and again while extraditing criminals from the UK. It tries to analyse such problems and fathom the degree of reasonability behind the same. But when you find a problem that surpasses all logic, what solution can you offer anyway? While some problems are legitimate, some are simply confusing. Nevertheless, I have tried to put a finger on the basic issues that we face here and humbly offered solutions that I think could be considered. 

 

 EXTRADITION WITH THE UK: AN INSIGHT

In 1991, Raymond Andrew Varley took to his heels and landed at the United Kingdom sometime later after molesting more than a hundred orphaned children at a shelter home in Goa.[1] After successfully setting off two bombs at Surat in 1993, Mohammed Hanif Umerji Patel, commonly known as Tiger Hanif, was finally discovered in the UK in 2010.[2] In the same year, ex Indian naval officer Ravi Shankaran was arrested in the UK after having escaped from India for jeopardising national security by leaking to outside agencies thousands of pages of India’s confidential military information.[3] In March 2019, Nirav Deepak Modi was finally arrested in London for committing one of the biggest banking scams in India after which he fled to the UK to seek refuge.[4]

All these cases have one thing in common: justice has not been served. These are but only a handful of stories about people who fled to the United Kingdom after committing statutory offences in their own country, with an expectation that it would be the right place to go.

Thanks to the development of effective air transport, the practice of escaping to another country after having committed a crime in one’s own country is becoming more and more rampant with the passing years. Once the accused reaches the other country, it becomes quite difficult for his home country to fetch him back. In other words, his extradition becomes a challenging scenario. In such a situation, the country to which he flees is called the territorial State or requested State, and the country that he commits the crime in is known as the requesting State, i.e., the State that requests for the extradition. Although it may appear to be quite reasonable to extradite a convict, there is no customary international law that binds the territorial State to do the same. This is where extradition treaties come into play.

An extradition treaty is defined in The Extradition Act, 1962 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.” After signing it in September 1992, the extradition treaty between India and the United Kingdom was ratified on November 15, 1993.[5] This made the UK the seventh country in the world to have an extradition treaty with India.

However, the extradition treaty between India and the UK has not proven to be of much consequence when it comes to actual extradition of convicts from the latter to the former. India’s extradition requests have been granted by more than 20 countries in the last couple of decades, which has resulted in the extradition of about 75 fugitive convicts to India. These countries included the United States of America, Canada as well as the UK Nevertheless, most of the extradition requests to the UK by the Government of India are still pending to this day.[6]         

Before we move on to the reasons for why our extradition process with the UK is so much more challenging than with that of any other country who we have extradition treaties with, let us look into the legal structure of the treaty itself.

  • AN UNDERSTANDING OF THE EXTRADITION TREATY BETWEEN INDIA AND THE UK

The extradition treaty between the United Kingdom and India lays down the premise, procedure and exceptions in relation to extraditing an accused from under the jurisdiction of one country to that of the other. Let us have a look at some important aspects of the treaty.  

As provided by Article 1, the extradition treaty shall deal with the accused retrospectively if he commits an offence that is recognised within the purview of this treaty. As laid down in Article 2 of the Model Treaty on Extradition adopted by the UN General Assembly on December 14, 1990, the doctrine of double criminality and minimum punishment in the case of extradition has also been followed by India and the UK in their treaty. Article 2 of the treaty provides that an offence that is punishable in both the contracting States with imprisonment of at least one year shall amount to an extradition offence under the treaty. This holds even when the offence is purely monetary in nature.

According to Article 7(2) of the treaty, if an Indian national commits an extradition offence in the UK and takes refuge in India, such offence will be punishable in the UK as well as in India. Such offences shall include the conspiracy, or the commission or an attempt to commit murder, manslaughter, culpable homicide, kidnapping, abduction, false imprisonment and unlawful detention.

  • OFFENCES OF POLITICAL CHARACTER

No international authority has been able to properly and exhaustively define the term ‘political offence”. The meaning of ‘political offence’ has evolved through various judgments. As laid down by Justice Cassels in the Ex parte Kolczynski case,[7] a political crime will include any ordinary crime that one commits in the process of committing a crime against the State, owing to the close nexus between the ordinary crime and the politics of the State. Moreover, if the ordinary crime is de facto prosecuted, it shall amount to the prosecution of the political crime at the same time.

As a customary rule of international law, a person accused of a political offence may not be extradited. The territorial State is at the liberty to grant them asylum. This is basically done on humanitarian grounds where the territorial State is uncertain if the accused shall be treated fairly and properly in the requesting state if extradition is granted. The same has been followed in Article 5(1) of the extradition treaty between the UK and India where it is stated that in the case of an offence of a political nature, extradition may be refused by either country.   

However, Article 5(2) of the treaty charts out what should not constitute a political offence for either of the countries. These offences include murder, incitement to murder, manslaughter or culpable homicide, an assault that leads to actual physical harm or causes injury, using a weapon, a dangerous substance, or something else to maliciously wound someone or inflict bodily harm, causing an explosion that can be lethal to life, or property, or both, to kidnap, abduct, falsely imprison, or unlawfully detain someone, including the taking of hostages, and so on. Furthermore, the following shall not amount to a political offence either:

  • An offence recognised by the Convention for the Suppression of Unlawful Seizure of Aircraft, signed on December 16, 1970;
  • An offence recognised by the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed on September 23, 1971;
  • An offence recognised by the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, signed on December 14, 1973;
  • An offence recognised by the International Convention against the Taking of Hostages, signed on December 18, 1979.
  • REASONS TO REFUSE EXTRADITION

Article 9 of the treaty provides several grounds on which the territorial State can refuse to extradite the accused:

  • On an occasion where the territorial State is convinced that, if extradited, the accused shall be prosecuted, detained, or restricted in his personal liberty on the basis of his race, religion, nationality or political opinions;
  • On an occasion where the territorial State is convinced that the extradition of the accused would be unjust or oppressive by reasons of the trivial nature of the offence, or the passage of time, or the lack of good faith behind making the accusation.
  • On an occasion where the territorial State is convinced that the person in question has been accused or convicted of a military offence that is not considered an offence by the general criminal law.
  • On an occasion where the accused may be tried in the territorial State itself and be discharged under any rule of law on account of previous acquittal or conviction, if any.

Article 15 provides that if the accused is sought for extradition by the requesting State as well as a third State with whom the territorial State shares an extradition treaty as well, the territorial State may prioritise the third State by refusing to grant the extradition request of the requesting State. 

As interpreted from Article 11(6) of the treaty, if sufficient evidence or information according to Article 11 is not produced within the prescribed and extended time allowed to the requesting State, the territorial State can decline the request for extradition. 

Article 16 allows the territorial State to refuse the request of extradition if the offence for which extradition is sought is punishable by death in the requesting State but not so in the territorial State. In this situation, unless the requesting State provides a convincing assurance that the person will not be put to death, the territorial State is under no compulsion to extradite him.  

  • PROCEDURES OF EXTRADITION

As per Article 22 of the treaty, a request for extradition has to be made on behalf of the Government of India to the Governor of the territorial State or some other concerned representative of the State, if any. Along with such request should accompany an accurate description of the accused in addition to any other information that may make it easier to identify him, his nationality and his residence. Moreover, a statement should be furnished with all the facts of the concerned offence, along with a text that defines that offence and the maximum punishment prescribed for it.

Article 11(3) makes it mandatory for the request to be accompanied by an arrest warrant issued by a judge, magistrate or any other authority in the requesting State competent to do the same. Furthermore, sufficient evidence should be annexed with the request that would convince the territorial State that the accused would have still been committed to trial if the offence had been committed in the territorial State itself. Also, the evidence so as to show that the person against whom the warrant has been released is the same person who is requested should be provided in addition to the former.

In case the extradition is requested for a person who has been convicted and sentenced already, the extradition request must be annexed with a certificate of such conviction and sentence, a statement that shows how much of the sentence still remains to be served and that the person in question does not have any right to question such conviction or sentence. The convict shall be treated in the same way if he has been absent from his trial. In case of inadequacy in the furnishing of evidence or information, additional evidence or information has to be submitted within the time granted by the territorial State.

  • AN ANALYSIS OF THE POTENTIAL PROBLEMS

Part 2 of the Extradition Act, 2003 of the United Kingdom deals with category 2 territories, including India.[8] For category 2 territories, the extradition offence has to be punishable in the UK by a period of at least 12 months, unlike for category 1 territories and some of the category 2 territories where the requisite is double criminality with no minimum punishment.[9] However, India’s luck with extraditing convicts from the UK has been sour, to say the least. Out of a minimum of 51 extradition requests with different foreign territories, at least 23 of them had been made to the UK till 2016.[10] Out of these, only one convict could be successfully extradited to India by 2016, that too because he surrendered.

This does not speak very highly of how respectfully the extradition requests of the Government of India are treated by the United Kingdom. On the other hand, more than 60 fugitives had been extradited to India during this period by other foreign countries that India shares extradition treaties with.[11] These fugitives were extradited for murder, kidnapping, cheating, fraud and terrorism, amongst others. This included the extradition of Abu Salem who escaped to Portugal in 2002 after the Bombay blasts even when India did not have an extradition treaty with Portugal.[12] So, what goes wrong when it comes to the UK? Why is the UK being increasingly treated as a safe haven by criminals?

Let us look into some of the potential problems that may have been complicating the extradition process between India and the UK right from the inception of their extradition treaty.

  • DELAY IN PAPERWORK BY INDIA

In July 2019, the Westminster Magistrates’ Court refused to extradite Arti Dhir and her much younger husband Kanwaljit Raijada to India after they were accused of having murdered an orphan who they had adopted in Gujarat and also his brother-in-law.[13] After adopting Gopal, this couple had gotten him a life insurance that would release Rs. 1.3 crores on the occasion of his death. Following this, Gopal and his brother-in-law were attacked outside Rajkot by a group of contract killers in February 2017. They eventually succumbed to their injuries. However, even after a prima facie case was established against the couple, chief magistrate Emma Arbuthnot refused to release an order in favour of their extradition.[14] This was because unlike in the UK, life imprisonment for double murder does not have any possibility of parole or review in India.

However, extradition could still be granted in exchange for a statement of assurance by the Government of India that Arti Dhir and Kanwaljit Raijada would be allowed the possibility of review in their life sentences. But the assurance provided by the Government was not just unsatisfactory, but also delayed. This resulted in the adjournment of the two extradition hearings. The third and last hearing was only partially carried out to let the government deal with the idea of life sentences with no possibility of parole.[15]  

In 2020, the London High Court upheld the decision of the Westminster Magistrates’ Court by discharging the appeal made by India to that effect. A profound effort by the Crown Prosecution Service barrister Toby Cadman also failed to convince the Court to rule in their favour when he contended that such delays were usually unavoidable due to time-consuming communication between the State and the Central Government.[16]

Thus, the inadequacy and delay in the paperwork seemed to have cost India two dangerous criminals. But why should delayed paperwork be of such significance when you are dealing with murderers and considering whether or not to set them loose? Should justice not be the highest of priorities in such a case? So what if some paperwork was delayed by a few months? Is it more threatening than letting two criminals walk away so that they can commit more crimes?    

  • ABSENCE OF CONSISTENT EFFORT BY INDIA

In 2005, ex-Navy officer Ravi Shankaran was found to be the prime accused in the Naval War Room Leak case. In this case, documents related to India’s maritime preparedness and the planned purchase of equipment for the next 20 years, were leaked from the Directorate of Naval Operations.[17] Although the other suspects were caught and put to trial, Shankaran still resides in the UK and the UK government has refused to give him up.

It had all started with a CBI investigation into the case which revealed that Shankaran was hiding in the UK. Soon after, they issued a warrant through Scotland Yard in addition to putting out an Interpol Red Corner Notice. However, Shankaran did not stay in the UK for long since he could be tracked all across Europe through surveillance.[18] It was in 2010 that he eventually surrendered himself.

The extradition request for Shankaran that was sent to the UK in 2007 received its approval in March 2013.[19] However, on further appeal, the England and Wales High Court turned out to be dissatisfied with the evidence of the CBI, including technical problems with the testimonies against Shankaran. The Court was also not convinced that enough evidence had been furnished to prove that no one but Shankaran was the very Vic Branson who was mailed about the operations in Sir Creek. In addition to this, the Court observed that justice could be really delayed if Shankaran was extradited to India since it had taken six years for the other accused to secure bail. Although the CBI had been awarded 14 days to appeal against the order, they could not go through with it on time.[20]  

Nevertheless, what India did next was something nobody had expected. Instead of putting further diplomatic pressure on the UK government, India decided to give up the chase.[21] To charge Shankaran for the conspiracy was declared to be an impossible pursuit which was why India did not even try to appeal while we still had time.[22]

What could possibly have been the reason behind such a dangerous decision? What gives the Government of India the right to not go after a criminal as dangerous as Shankaran? How does this serve justice to the Indian military whose safety had been jeopardised by this man along with his accomplices? Being one of the most wanted fugitives on the Interpol list of CBI could not ensure fair play for Shankaran or for the nation at large. This is how one of the biggest espionage cases in the military escaped the hands of justice in broad daylight.  

If the abrupt withdrawal of efforts by the Indian Government to extradite Ravi Shankaran looks questionable and suspicious, it is not for the first time. To refrain from further appeal was a piece of advice given to the CBI by none other than India’s own lawyer in UK Crown Prosecution Service. What is more, this view was not even thoroughly examined by the Indian authorities.[23] This subtly but surely raises a question on India’s intentions with relation to the extradition of Ravi Shankaran.

However, it would be unfair to conclude that India is the only one to exhibit a lack of will when it comes to extraditing fugitives from the UK. Raymond Andrew Varley, who was charged on many counts of sexual abuse on the children of an orphanage at Goa, including indecent assault, sodomy and taking indecent photographs, still resides in the UK with possibly no fear of retribution whatsoever. Even after repeated appeals, all legal options for India were shut down by the British Court which claimed that India had failed to conduct the requisite examination on time.[24]

The leading contention by Raymond Varley was that he was suffering from dementia. However, the very fact that he could secure a well-drafted certificate ratifying the same, from Linda Atterton, a neuro-psychologist who lived 291 kilometres away from his place of residence, is not a very clever demonstration of the effects of dementia. This led different activists to even question the competence of the neuro-psychologist herself. Furthermore, what Linda Atterton had really stated in her report was that Varley suffered from widespread moderate-severe impairment severely affecting everyday life” but she could not “pinpoint the type of dementia but it may be Alzheimer’s”. Nevertheless, on May 8, 2014, Raymond Varley’s claim was accepted by the Westminster Court and the request for his extradition was declined.[25] 

According to some activists, the Crown Prosecution Service had never even intimated the CBI about the validity of conducting an independent medical evaluation,[26] thus, doing a terrible as well as suspicious job at representing the country. However, people can be inclined to think that the UK’s treatment of this case shows how little they truly care about justice. It is almost as if they had been waiting for the slightest indication towards Varley’s innocence, based on which they could refuse to extradite him. But what can be the reason for this possible lack of will to extradite dangerous criminals? How would allowing Varley to get away really help society in dealing with sexual abuse? These are a few questions that need to be answered at length at any cost.       

  • HANNAH FOSTER: A SINCERE ATTEMPT BY INDIA

India’s extradition experience with countries other than the UK has been decent albeit challenging. In 2006, Abu Salem and Monica Bedi were extradited to India by Portugal on the condition that the death sentence would not be given.[27] In 2015, Chhota Rajan, a member of D-Company was finally extradited to India from Indonesia after having been on the run for almost 30 years.[28] All in all, most of India’s extradition requests have been granted by the UAE, with the US next in line.[29] Similarly, India had successfully extradited 51 people by 2018. Of them, 27 were extradited to the U.S., 6 were extradited to Canada, 4 were extradited to Australia, and finally, 3 were extradited to the UK.[30] It was to the UK that India eventually extradited the rapist and murderer of Hannah Foster on condition that the UK would not put him to death.  

On July 15, 2004, Maninder Pal Singh Kohli was trying to escape to Nepal when he was arrested by the Indian police in Darjeeling.[31] Following this, on July 28, 2004, Kohli gave a chilling interview to a private television channel where he admitted to the abduction, rape and murder of Hannah Foster.[32] Hannah was a bright British student who was looking forward to university to study medicine.[33] But it took just one fateful night for her dreams and aspirations to be demolished. On March 14, 2003, Hannah was abducted by Kohli, only to be raped and strangulated by him later on.[34] What was her mistake? She was found walking all by herself almost half a mile from her residence in Hampshire.

It was not enough when Hilary, Hanna’s mother, contended that it would eat her for the rest of her life that she could not be there for Hannah when she needed her mother.[35]

All the while when the extradition request by the UK was pending, Kohli was kept in judicial custody in New Delhi. After more than 100 court proceedings and 35 appeals that lasted 3 years, the extradition request was finally granted on June 8, 2007.[36] According to a statement by Detective Superintendent Alan Betts, there was not a thing Kohli had not tried to do to escape the clutches of justice, but thanks to the determination exhibited by Hannah’s parents, along with the collective efforts of the Hampshire Police and the colleagues in India that he was finally discovered and arrested.[37]  

The first person to be ever extradited to India from the UK was Samirbhai Vinubhai Patel on October 18, 2016. Patel was charged under Section 302 of the Indian Penal Code, 1860 in connection with the 2002 post-Godhra riots in Gujarat.[38] However, the fact that this was the first successful extradition of its kind in 23 years is itself quite frustrating. Extraditing convicts from the UK should not be so difficult that it takes 23 years for the first one to work out. Perhaps it is the consistent failure in extraditing fugitives from the UK that has resulted in an increase in the number of such fugitives who treat the UK as a safe haven and disappear before anyone bats an eye.   

  • EXTRADITION OF MR. SANJEEV CHAWLA

However, slowly but surely, recent times have seen an improvement in the situation. On February 1, 2016, Mr. Sanjeev Chawla was requested to be extradited from the UK after being accused of acting as a conduit between Hansie Cronje, the then South African test cricket team captain, and bookies who were interested in fixing cricket matches. The parallel offence for this in the UK was “conspiracy to give or agree to give corrupt payments in England and Wales“.[39]

One of the primary contentions of Mr. Chawla was the deplorable prison condition in India. According to a report by Dr. Alan Mitchell, prisons in India were not just violent and overcrowded but also lacked decent and immediate medical facilities. The Magistrate Court was unsure if Mr. Chawla would be subjected to a proper prison atmosphere if the extradition was allowed since the prohibition of torture and degrading treatment is a human right guaranteed by Article 3 of the European Convention on Human Rights. This objection, however, was met by a couple of letters of assurance with regards to the prison conditions. However, the Magistrate Court was still unconvinced after considering the first letter of assurance and as a result, discharged Mr. Chawla. On further appeal to the High Court, both the letters of assurance were considered this time and it was observed that it could still not be guaranteed that Mr. Chawla would not be exposed to inhumane and degrading treatment at the Tihar jail if he was to be extradited. Nevertheless, the Court allowed the Government of India to furnish a more suitable assurance for a third time.[40]

In this third and final letter, specific assurances were rendered in relation to the future treatment of Mr. Chawla at the prison, including the promise to keep him in a cell that would solely belong to him. This time, the High Court was convinced and finally quashed the Magistrate Court’s order. Following this, the case was sent to the Secretary of State for approval or denial of the extradition. Mr. Chawla was eventually extradited to India in February 2020.[41]

  • EXTRADITION OF DR. VIJAY MALLYA

In his bid to manipulate 17 Indian banks into lending him Rs. 9000 crores,[42] Dr. Vijay Mallya was accused of committing banking fraud, along with the offences of cheating and criminal conspiracy under the Indian Penal Code, read with offences under the Prevention of Corruption Act, 1988 and also the Prevention of Money Laundering Act, 2002. The parallel offences for this in the UK were ‘conspiracy to defraud‘, ‘making false representations‘, ‘diversion and dispersal of the proceeds of lending‘ and ‘money laundering‘ respectively.[43]

The primary contention, in this case, was that a prima facie case had not been established against the accused. In addition to this, it was also contended that the real reason behind asking for his extradition was to try him for his political opinions and not for banking fraud. Mallya even argued on the basis of Article 3 and Article 6 of the European Convention on Human Rights, stating that the extradition could lead to his torture and endanger his right to a fair trial. For this, the report by Dr. Allan Mitchell was yet again referenced. Furthermore, the witness statements under Section 161 of the Code of Criminal Procedure, 1973 were also criticised in the contention. In response, the Government of India supported its allegations by furnishing weighty evidence and sent a number of assurances with regards to the prison conditions.[44]

All of Mallya’s contentions were hilariously declined by the Magistrate Court, one after the other. It was observed that not only did a prima facie case exist against him but also that it related to banking fraud and not his political opinions. All the assurances furnished by the Government of India with regards to prison conditions were approved. Moreover, it could not be established that his extradition to India would endanger his life or severely risk his chance of getting a fair trial. Even the concerned witness statements were validated. Following suit, the case was sent to the Secretary of State for the approval or denial of extradition and was thankfully approved.[45]

Mallya appealed to the High Court against such decision on several grounds. However, his appeal was dismissed on April 20, 2020. Mallya’s application to appeal to the Supreme Court was also dismissed on May 14, 2020. Although Vijay Mallya has not been extradited to India yet, the only thing that could now intervene with the process is if he was granted relief by the European Court of Human Rights.[46]  

CONCLUSION

The UK has long been one of the most favourite hideouts of people who are accused or convicted in India. Right from the day the treaty came into force in both the countries, it has all been a matter of efforts, efficiency and evidence. All these years, India had unsuccessfully tried to gain the trust that could eventually be gained in the latest years. Perhaps the Government of India has finally understood the main reason behind its consistent failure to extradite offenders from the UK. The substandard prison conditions in India have been a crucial point of defence by many of the offenders and for the right reasons. Extraditing a person only to have them exposed to a horrible prison atmosphere may be something they deserve but is also incompassionate and inhumane. It is the duty of the territorial State to ensure that the person they are asked to extradite would not be treated degradingly by the requesting State. The UK has a similar responsibility to abide by Article 3 of the European Convention of Human Rights.

The other important factor that has contributed to this consistent refusal of extraditing offenders from the UK to India is the inadequacy of paperwork by the latter. The Government of India has not always been that efficient in framing dependable letters of assurance that would address all the potential problems that might arise in the prison and how well such problems would be taken care of. Of late, this flaw has been improved upon only to yield better results in terms of increased trust and reassurance in India. Mr. Sanjeev Chawla and Dr. Vijay Mallya were both agreed to be extradited to India based on the letters of assurance furnished by the Government of India which could address the prison issues in India effectively and satisfy and convince the UK Courts. However, trust is not as easily gained as broken. If India wants to maintain this latest trend of successful extraditions from the UK, we have to keep the promises that we make. The convicts cannot be subjected to deplorable prison conditions even after a statement has been furnished to ensure otherwise. 

India is renowned for the deficient condition of its prisons. This is exactly what allows the offenders to assume such a defence in their contention. However, what if prison conditions were not this bad? What if our prisons were equipped with decent medical facilities good enough to cater to emergencies? What if there was an effective vigilance system to monitor crimes and violence in the prison premises? What if enough measures were taken to disinfect the prisons and keep them clean and hygienic? These are just some of the changes that the Government of India could incorporate within the prisons to make them a safer place to live. Prisons should be clear and decent for all convicts, not just the ones who have been extradited on the basis of letters of assurance. Nevertheless, in case of persistent reluctance of the UK to send the convicts back to India, what if the convicts are imprisoned in the UK itself, by sharing the prison charges with India? Should that not be better than allowing them to roam scot-free like free citizens?

It was observed by the International Court of Justice in the Corfu Channel case[47] that “asylum may be granted on humanitarian grounds in order to protect political offenders against the violent and disorderly action of irresponsible sections of the population.”[48] However, terrorists may not be bestowed with the same benevolence. Therefore, it is impertinent to note that the UK’s right to grant asylum to a person found on their territory is not absolute. Through Resolution 1373 adopted on September 28, 2001, by the Security Council it was established that “All States shall deny safe haven to those who finance, plan, support or commit terrorist acts.”[49] This means, the UK may have to think more than twice before refusing to extradite terrorists to India because of inadequate paperwork or lack of will. However, it is high time for India to gear up for a pleasant turn of events as the recent trend of extradition between India and the UK seems to be more promising than it has ever been.

Citation:

[1] Dhanya Rajendran, Child sexual abuser Raymond Varley gets away; will India approach Theresa May?, The News Minute (Aug. 14, 2020, 1:47 PM), https://www.thenewsminute.com/article/child-sexual-abuser-raymond-varley-gets-away-will-india-approach-theresa-may.

[2] India’s extradition request for Dawood aide Tiger Hanif refused by UK, The Economic Times (Aug. 14, 2020, 3:13 PM), https://economictimes.indiatimes.com/news/politics-and-nation/indias-extradition-request-for-dawood-aide-tiger-hanif-refused-by-uk.

[3] Deeptiman Tiwary, Naval War Room Leak case: Sensational story of info theft still awaits ending, The Indian Express (Aug. 14, 2020, 4:14 PM) https://indianexpress.com/article/explained/naval-war-room-leak-case-sensational-story-of-info-theft-still-awaits-ending.

[4] Nirav Modi arrested in London, India Today (Aug. 14, 2020, 4:23 PM) https://www.indiatoday.in/india/video/nirav-modi-arrested-in-london-to-be-produced-in-court-today.

[5] Extradition Treaty between the Government of the Republic of India and the Government of the United Kingdom of Great Britain and Northern Ireland.

[6] Nitesh Jain & Aditya Mahotra, India: India’s Recent Successes In Extraditing Fugitives From The United Kingdom, Mondaq (Aug. 14, 2020, 3:54 PM) https://www.mondaq.com/india/human-rights/948934/india39s-recent-successes-in-extraditing-fugitives-from-the-united-kingdom. 

[7]  (1955) 1 All E.R. 31.

[8] Extradition Act, Section 69 (2003).

[9] Extradition Act, Section 137(3)(b) (2003).

[10] Supra.

[11] Dr. H.O. Agarwal, International Law & Human Rights, Central Law Publications, 301 (22nd ed., 2019).

[12] Dr. H.O. Agarwal, supra, 285.

[13] Ruhi Khan, India Loses Extradition Case of UK-Based Couple Accused of Murdering Adopted Son, The Wire (Aug. 14, 2020, 4:53 PM) https://thewire.in/world/india-loses-extradition-case-couple-double-murder.

[14] id. 

[15] Supra.

[16] Supra.  

[17] Navy war room leak case: SC upholds sacking of naval officers, The Economic Times (Aug. 8, 2020, 3:13 PM), https://economictimes.indiatimes.com/news/defence/navy-war-room-leak-case-sc-upholds-sacking-of-naval-officers.

[18] Supra. 

[19] Supra.

[20] Supra.

[21] Neeraj Chauhan, India gives up pursuit of Navy war room leak kingpin Ravi Shankaran, The Times of India (Aug. 14, 2020, 3:21 PM), https://timesofindia.indiatimes.com/india/India-gives-up-pursuit-of-Navy-war-room-leak-kingpin-Ravi-Shankaran.

[22] id. 

[23] id. At 21.

[24] Supra.

[25] Supra.

[26] Supra.

[27] History of extradition of fugitives to and from India and some high-profile cases, The Economic Times (Aug. 8, 2020, 3:44 PM) https://economictimes.indiatimes.com/news/politics-and-nation/history-of-extradition-of-fugitives-to-and-from-india-and-some-high-profile-cases

[28] id.

[29] Aarshi Tirkey, India’s challenges in extraditing fugitives from foreign countries, ORF.

[30] id. 

[31] Maninder Pal Singh KOHLI, Murderpedia (Aug. 14, 2020, 5:01 PM) https://murderpedia.org/male.K/k/kohli-maninder.htm.

[32] UK teen’s rape, murder: Kohli found guilty, NDTV (Aug. 14, 2020, 5:05 PM) https://www.youtube.com/watch?v=TPm3rn6l1hE.

[33] Supra.

[34] Supra.

[35] Supra.

[36] Hannah suspect arrives back in UK, One-Minute World News (Aug. 14, 2020, 3:40 PM) http://news.bbc.co.uk/2/hi/uk_news/england/hampshire/6920436.stm

[37] Supra.

[38] Aditi Khanna, Gujarat riots accused extradited from UK, India Today (Aug. 14, 2020, 3:48 PM) https://www.indiatoday.in/pti-feed/story/gujarat-riots-accused-extradited-from-uk.

[39] Supra.

[40] Supra.

[41] Supra. 

[42] WHO IS VIJAY MALLYA, Business Standard (Aug. 14, 2020, 3:51 PM) https://www.business-standard.com/about/who-is-vijay-mallya.

[43] Supra.

[44] Supra.  

[45] Supra.

[46] Supra.

[47] ICJ GL No 1, (1949) ICJ Rep 4, ICGJ 199 (ICJ 1949).

[48] Dr. H.O. Agarwal, supra, 303.

[49] Dr. H.O. Agarwal, supra, 303.

 

Author:

Nilanjana Sarkar



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