Hard lobbying pays

EXTRADITING VIJAY MALLYA

Controversy characterises the extradition of liquor baron Vijay Mallya who has allegedly committed a fraud worth Rs 9,000 cores, from the UK. Considering a similar high profile case of Nirav Modi, who allegedly cheated the Punjab National Bank, has failed till now.

The Vijay Mallya extradition is politically sensitive because it has given the opposition parties a handle to hit the ruling party. Considering that India suffers more failures than successes in extradition cases, wherein only one in every three fugitives is successfully extradited to the country, suggests strong political intervention in the Mallya case.

Extradition is an established international legal mechanism for one country to return a fugitive who has fled his home country for a crime committed and face trial there. It is governed by extradition treaties and arrangements between countries albeit with minor variations and adopts internationally recognised legal principles for the surrender of fugitives. It is defined as the “delivery of an accused or convicted individual from the country he is found in, to another country that requests his extradition”

Extradition is based on the principle of autpunireautdedere, which means that the country where the accused is should either punish the criminal or return them to the country in which the crime was committed. Further, in order for an extradition application to be honoured, the rules of speciality and double criminality have to be fulfilled. Speciality means that the applicant country should only try the accused on those grounds for which they have been extradited.

Double criminality refers to the alleged act being a crime in both countries. If, for instance, a country where the fugitive has committed dowry harassment, where it is a crime , and fled to another country, where it is not a crime, then an application for such an extradition will not stand.

Today, India has bilateral extradition treaties with 43 countries and extradition arrangements with 10 countries. When two states have treaty mechanisms between them, they are obligated to consider requests for extradition whereas “extradition arrangements” between states are non-binding and do not impose any legal obligations on party states. Moreover, India is also a signatory to various multilateral conventions that provide a binding extradition framework to curb transnational crimes which include drug trafficking, terrorism and aircraft hijacking. Also states can seek surrender of fugitives to non-treaty states.

The International Criminal Police Organisation, popularly known as the Interpol, issues Red Corner Notices to member countries in case of high profile criminal cases.

These Red Corner Notices are based on the arrest warrants issued by a country. Contrary to popular belief, the Interpol does not make arrests as it would result to an infringement of a country’s sovereignty. Only the police force of that country has the power to make an arrest.

If a fugitive has fled from a country, and an arrest warrant is issued against them, the Interpol notifies all the member countries of the same. It is up to the will of each individual country to follow through on the Red Corner Notice.

Invariably, the extradition of fugitives for crime or terrorism, besides white collar crime is both politically sensitive. For instance, India failed to extradite Warren Andersen who headed Union Carbide in the Bhopal Gas Tragedy 1984 besides, David Headley, accused in the 1993 Mumbai blasts case.

While India has succeeded in the extradition of Abu Salem and Monica Bedi for involvement in terrorism from Portugal, it has failed miserably to obtain custody of Dawood Ibrahim from Pakistan for the 1993 Mumbai blasts.

Generally, a country should have extradition treaties with other countries in order to be able to have a request for extradition honoured. However, there have been instances where extradition requests have been granted in spite of the absence of an extradition treaty.

One such instance is Abu Salem’s extradition from Portugal. Clearly, the hostility in India-Pakistan relations has resulted in failure to extradite Dawood from Pakistan which denies his presence on their soil unlike the neutrality between India and Portugal that enabled extradition of Abu Salem.

Dawood Ibrahim

Given the absence of obligation for a host country to extradite a fugitive, in a lot of instances, due to lack of political will, a criminal escapes from the clutches of the law. At least till mid 2017, as per an RTI made to the Ministry of External Affairs, no extradition request had been made for the return of Dawood Ibrahim who reportedly fled to Dubai and then to Pakistan.

Research scholar Aarshi Tirkey writes, “Of particular concern is the fact that India does not have extradition treaties with several neighbouring states such as China, Pakistan, Myanmar and Afghanistan. Many security threats originate from border areas and flourish due to challenges presented by difficult terrain, harsh climate and poor border infrastructure.” She says in her work, “India’s Challenges in Extraditing Fugitives from Foreign Countries”: “With the absence of a defined treaty mechanism, India may find it difficult to secure the surrender of criminals who flee to India’s border-states”.

The only other person to have been extradited from the UK to India is Samirbhai Vinubhai Patel, who was wanted in the 2002 Gujarat riots cases and deported to India in October, 2016. However, the UK has not agreed to extradite Lalit Modi who faces charges of financial irregularities under theForeign Exchange Management Act which the Enforcement Directorate pursues against him.

Neither has the UK extradited Mohammed Hanif Umerji Patel notoriously known as Tiger Hanif who is wanted in a 1993 Gujarat bombing case and a known aide of Dawood Ibrahim. Apart from these extradition cases, there are several others which the UK does not wish to cooperate with India. Clearly, therefore, India has lobbied hard with the UK to deport Vijay Mallya due to exigencies of domestic politics.

(The writer is Assistant Professor, School of Law, Christ Deemed to be University, Bengaluru)