Crime Today News
By Dr Swati Jindal Garg
Michael Franti’s quote was never far from the truth when he said:“When we all see justice, then we’ll all see peace!” The buzz around the extradition of the Mumbai terror accused Tahawwur Rana has finally reached its crescendo with Rana being brought to India. National Investigation Agency (NIA) formally arrested Rana, a Canadian national of Pakistani origin living primarily in Chicago and the key conspirator in the deadly 26/11 Mumbai terror attacks, immediately after he arrived in New Delhi, following his successful extradition from the United States. He was escorted to New Delhi by teams of NSG and NIA, comprising senior officials, on a special plane from Los Angeles and produced before a special NIA judge who promptly sent him to 18-day custody with the NIA.
This herculean feat has only been achieved due to years of sustained and concerted efforts of the Ministry of External Affairs and the Ministry of Home Affairs, along with the relevant authorities in the United States, and is a significant step towards India’s efforts to bring individuals involved in terrorism to justice, irrespective of which part of the world they had fled to. Rana was being held in judicial custody in the US under proceedings initiated by the NIA under the India-US Extradition Treaty. The extradition finally came through after Rana’s various litigations and appeals, including an emergency application before the US Supreme Court, were rejected with the active assistance of the US Department of Justice.
Rana is accused of conspiring with David Coleman Headley alias Daood Sayed Gilani and operatives of designated terrorist organisations Lashkar-e-Taiba (LeT) and Harkat-ul-Jihadi Islami (HUJI), along with other Pakistan-based co-conspirators, to carry out the devastating terror attacks in Mumbai in 2008 in which a total of 166 persons were killed and over 238 injured. Both LeT and HUJI have been declared as terrorist organisations by the government of India under the Unlawful Activities (Prevention) Act, 1967.
Legally speaking, extradition is the transfer or delivery of a person from one country to another, so that the formal authority over the person shifts to the country where the person is transferred. The person who is so transferred, is either someone who is accused of a crime or a convicted criminal in the country to which he is being delivered—the main requirement for the same is that the crime for which the person is being transferred should also be a crime under the law of the country which is transferring the person.
In order to claim authority over the accused, a country can make a request to another country to extradite a person so that the requesting country can appropriately deal with his crimes. An extradition request for an accused can be initiated in the case under investigation, in case of undertrials, and even convicted criminals.
The law on extradition in India is regulated under the Extradition Act, 1962, which deals with the extradition of fugitive criminals—primarily persons who are accused or convicted of an extradition offence in a foreign country. India has entered into extradition treaties with many countries such as the UK, USA, Bangladesh, Australia, Canada, France, UAE, South Africa, Thailand and Iran, among others, wherein it has reached an agreement or arrangement with these foreign countries relating to the extradition of fugitive criminals.
It needs to be kept in mind that all these countries with whom India has an extradition treaty or agreement, the extradition offence is set out or defined in the Treaty itself. In other cases, an extradition offence can be any offence for which the punishment is imprisonment for at least one year, under the laws of India or the laws of a foreign country.
Extradition cannot be made available at the request of the members of public; it can only be made by the Ministry of External Affairs, which formally submits the request for extradition to the respective foreign country through diplomatic channels. The Consular, Passport and Visa Division of the Ministry of External Affairs is the central authority that administers the Extradition Act, and processes all incoming and outgoing extradition requests.
Even through the appropriate channels, all requests for extradition can only be made if we have an extradition treaty with the country to which the request is being made. Once such a request is made, the foreign country has an obligation to consider our extradition request provided that it has executed an extradition treaty with India. If such an extradition arrangement is not in place, the foreign country will consider our request keeping in mind its domestic laws and procedures.
In case of urgency, India may request the temporary arrest of a criminal even before submitting an extradition request. A provisional arrest request is usually made when there is a possibility that the criminal may flee the country and try to escape the law.
According to records provided by the Ministry of External Affairs, as of 2024, India has submitted 178 requests for the extradition of fugitive criminals to different countries in the last five years though only 23 persons were successfully extradited in the period starting from January 1, 2019, while 65 requests made by India for extradition of fugitive criminals based in the US, “are under consideration of the US authorities”. Most of these fugitives are sought for being wanted for terrorist activities committed in India.
Till date, India has signed extradition treaties with 48 countries/territories and has also entered into extradition arrangements with 12 other countries as it is the government’s policy to conclude extradition treaties with as many countries as possible in order to ensure that fugitive criminals do not escape justice.
The top fugitives whose extradition requests are still pending with countries like the UK, USA and Canada are businessman and former MP Vijay Mallya, former IPL Chairman Lalit Modi and pro-Khalistan terrorists Lakhbir Singh and Arshdeep Singh Gill.
There is no doubt that with the advent of globalisation and increased interconnectivity, it has become less difficult for offenders in India to escape to foreign jurisdictions and avoid prosecution in the country. The importance of extraditing fugitives and bringing them before Indian courts cannot be stressed enough. Apart from providing timely justice and grievance redressal, it also serves as a deterrent against potential fugitives. However, India’s success rate in extraditing fugitives is abysmally low as can clearly be seen from the records; only one in every three fugitives are being successfully extradited to India.
While the old adage, “no one can outrun the long arm of the law” clearly illustrates the objective of legal systems, globalisation and increased interconnectivity poses significant hurdles to this fundamental objective. With travel becoming faster, more affordable and more efficient, it has become relatively easier for offenders in India to escape to foreign countries and evade arrest and prosecution in the country. Furthermore, the internationalisation of crime creates challenges for enforcing jurisdiction over both nationals and foreigners who do not reside in India.
It cannot be denied that in spite of binding treaty mechanisms, the process of extraditing fugitives is lengthy, complex and heavily depends on domestic laws and politics of the requested country. Nonetheless, there are factors involved in extradition over which India can exercise control and thereby improve its success rate. Leveraging diplomacy and bilateral negotiations to persuade countries to process requests expeditiously, is one such key step. The Indian government must make good on its policy—to conclude extradition treaties with as many countries as possible, and make efforts to enter into still more bilateral extradition relations. Further, preventive law and policy measures that hinder the escape of offenders can also be explored.
India also needs to take steps to assuage concerns pertaining to poor prison conditions and potential human rights violations of the requested fugitive as assurances by the Indian government regarding the same are often not accepted by foreign courts. Moreover, fugitives who are not accused of violent crimes can be housed in well-maintained, minimum-security facilities. Additionally, India could consider signing international instruments, such as the UN Convention Against Torture (1984) to establish India’s zero tolerance towards torture and custodial violence.
As far as the issue of delays in investigation is concerned, it is imperative to improve the capacity and organisational efficiencies of law enforcement agencies so that they may conduct speedy investigation in these cases. Currently, multiple extradition cases, such as those related to money laundering, terrorism and economic offences, are either taken up by the CBI or sent to the CBI, by the state police for investigation. The CBI being highly understaffed is unable to successfully take up larger cases involving extradition.
The Justice Malimath Committee report (2003) recommended setting up a central agency, on similar lines with the Federal Bureau of Investigation (USA), to exercise jurisdiction over crimes and offences affecting national security. The suggestion can be taken up more seriously now. Further, setting up a separate cell to provide expert legal advice and assistance on drafting, certification and translation of evidence, will also help mitigate the possibility of rejection of requests.
Just like every coin has a flip side, the benefits of globalisation and integration also bring with them, the pressing challenge of offenders fleeing India. Given the obstacles India faces in securing the return of these fugitives, the country must swiftly introduce reforms and leverage diplomacy to create a simpler, frictionless extradition mechanism in order to ensure that no offender escapes the hands of justice.
Mehul Choksi’s Arrest: A Significant Push For India’s Efforts For His Extradition
In another landmark victory for India, Belgian authorities have confirmed that Mehul Choksi (right), the fugitive diamond businessman, is in their custody after being arrested. Choksi, an Antiguan citizen at present, is wanted, along with his nephew Nirav Modi, in a case by Punjab National Bank alleging loan frauds worth more than Rs 13,578 crore.
The CBI has registered multiple cases against them and their companies. Based on those cases, the Enforcement Directorate is also conducting a money-laundering probe and has attached assets in India and overseas, including in the United States, the United Arab Emirates, and Japan. The CBI has been pursuing his extradition since 2018 when he left the country.
In a petition filed in a special court in Mumbai in February this year, Choksi had provided medical documents that said he was suffering from chronic lymphocytic leukaemia (blood cancer) and was unable to travel. Choksi is not facing extradition trial for the first time as a court in Dominica had dismissed a CBI petition for his extradition in 2021. International agency Interpol had subsequently withdrawn its Red Notice for Choksi after his lawyers had claimed human rights violations and “political targeting” by the Narendra Modi government alleging that Choksi had been kidnapped and beaten up by “henchmen” working for the Indian government. Union Law Minister Arjun Ram Meghwal recently said that the arrest of Choksi was a victory of the Indian government’s diplomacy. “It is a matter of pride for India,” he reportedly said.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi
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