Mehul Choksi case: What law on extradition says, grounds for refusal

The letter is meant to facilitate the extradition of Choksi, who is wanted in India for the alleged Rs 13,000 crore Punjab National Bank loan fraud case. Over the years, India has sought the extradition of several fugitives including Nirav Modi, a co-accused in the PNB case, and liquor baron Vijay Mallya. But the record of actually bringing fugitives back has been mixed, at best.

What is extradition?

Extradition is a formal process by which one country hands over a person accused or convicted of a crime to another country. It is meant to ensure that a person can not avoid trial simply by crossing borders.

The Extradition Act, 1962 defines an “extradition offence” in two ways. For states with which India has an extradition treaty, it simply refers to offences listed in the relevant bilateral agreement(s).

For non-treaty states, it covers offences punishable with at least one year of imprisonment under the laws of India or a foreign law, including “composite offences” (where the offence takes place in one country but its effects are felt in another).

According to the website of the Ministry of External Affairs, India has extradition treaties with 48 countries, and extradition arrangements (without a formal treaty) with an additional 12 countries.

How does the law work in India?

Minutiae aside, extradition works similarly across countries and jurisdictions. The process begins when one state sends a formal request through diplomatic channels, or any specific mode of communication agreed upon in a treaty/arrangement, to another. Such a request is typically accompanied by a description of the fugitive, the crime under which he is to be tried in the court, and the maximum punishment for said crime.

If the request pertains to someone who has already been convicted of the crime, a copy of the judgment is also attached. These documents are presented as evidence in extradition proceedings, which are overseen by a competent court in the country in which the fugitive resides. If the court allows extradition, an arrest warrant is issued, after which the fugitive is apprehended and sent to the requesting country.

Extradition requests received by India result in the Centre directing a magistrate to conduct an inquiry. The magistrate issues a warrant, examines the evidence presented and hears the case against the criminal. If the magistrate considers that no case is made, then the fugitive is released. But if there is a case, the person is committed to prison while the report goes back to the government.

The final decision rests with the Centre, which can order a fugitive’s surrender based on an enquiry report submitted by the magistrate.

An extradition involves endorsed and provisional warrants. An endorsed warrant allows authorities to arrest a fugitive based on a warrant issued by a foreign country. A provisional warrant allows a magistrate to detain someone suspected of being in, or coming to, India until the endorsed warrant arrives. These tools prevent fugitives from slipping away while the extradition process unfolds.

There are also safeguards. If a person is not extradited within two months of committal, they may seek release from the High Court, but the court has discretion in granting the release. Evidence from abroad can be admitted if authenticated. The law also incorporates the principle of “speciality”, where the fugitive can only be tried for the offence for which extradition was sought, unless the sending state agrees otherwise.

What if there is no treaty?

The absence of a treaty does not rule out extradition, but it does make the process less predictable. Note that the 1962 Act allows India to treat international conventions, such as those on corruption or organised crime, as extradition treaties, if both countries are parties to it.

Section 3(4) of the Act states that, “Where there is no extradition treaty made by India with any foreign State, the Central Government may, by notified order, treat any Convention to which India and a foreign State are parties, as an extradition treaty made by India with that foreign State providing for extradition in respect of the offences specified in that Convention.”

Some states also extradite without treaties under their own domestic laws, often on the principle of reciprocity. However, such cases are rare. More commonly, countries use alternatives like deportation under immigration law or trial in the host states.

When can extradition be refused?

Extradition can be denied if the offence is of a political or military character, if the request is barred by limitation under the requesting country’s law, if the individual is already facing trial or serving a sentence in India, or if the request appears to target the person’s race, religion, nationality or political opinions.

Extradition is also denied if the requesting state cannot assure that the fugitive will only be tried for the offence specified in the request. Some treaties allow for a waiver of extradition, which is when a fugitive voluntarily agrees to face charges abroad. This allows the magistrate to recommend surrender of the fugitive without a full inquiry, provided that the crime is recognised in both countries under the principle of dual criminality.

Even with laws and treaties in place, extradition remains a difficult process. Many treaties require that the offence be recognised in both countries, and some Indian offences do not exist elsewhere in the same form. Courts overseas also insist on strong evidence that would stand up in their own legal system. Human rights concerns, such as the treatment of prisoners, are another recurring issue, as can be seen through the assurance letter by the MHA in Choksi’s case.

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