Complications surrounding Mehul Choksi’s return to face trial bring to the fore the fact that most decisions on extradition are rooted in diplomacy and executive decisions. India’s forceful argument during the last fortnight that Choksi still remains an Indian citizen in the backdrop of his already having been declared a ‘prohibited immigrant’ in Dominica, opens up a window of opportunity that he may return soon.
However, an initial executive order may still be challenged by him in Dominica on considerations like rule of law, due process, and respect for fundamental/human rights et al. These constitute important checks and balances on the abuse or misuse of executive decision-making by circumscribing the executive powers.
Often, these legal remedies are also exploited by fugitives to thwart or delay their return and one hopes that his absence from the court hearing on health grounds is not a major hindrance.
Diverse Methods of Getting Choksi-Like People Back
Return of wanted persons to different jurisdictions can take place by varied means: abduction or kidnapping, expulsion simpliciter, push-back across borders, denial of admission, deportation, and extradition are some of the practices in vogue. The method adopted depends upon diverse factors. They are as diverse as
severity of crimes,
degree of openness or transparency in governance,
degree of judicial activism in the partner-States,
degree of freedom of press and media,
territorial contiguity between or among the States, and
the definitions and mutual acceptance of the definitions of crimes or criminal acts or ‘deviant behaviours’ between the States.
Nationality of the wanted person or laws pertaining to citizenship of the States involved could also be important factors. These factors and some others could determine the speed with which ‘return’ can be sought or granted.
Once a ‘wanted’ person is brought back, the manner in which he is brought back, especially if the person returned is a fugitive criminal, is largely immaterial for purposes of the prosecution of serving of the sentence.
Sometimes, the strength of the relations between nations or other over-riding considerations may also lead to the return of ‘non-criminals’ also. Though, such acts could attract adverse publicity domestically as well as internationally. Adverse international publicity could potentially damage future efforts in seeking return of fugitives. International law and practice on extradition universally prohibits return of criminals wanted in connection with political offences.
Therefore, fugitives like Choksi, Nirav Modi and Vijay Mallaya resort to defences like ‘political offences’ or ‘persecution’ or likelihood of ‘trials being prejudiced’, jail conditions, and perhaps even trial by media.
Establishing Dual Criminality to Request Extradition
Extradition—which is the legal process for return of fugitives—usually takes place subsequent to a determination by a ‘judicial mechanism’ of dual criminality. Dual criminality entails that the State requesting the extradition should be able to prove and convince the ‘judicial authorities’ in the other State about fact that the acts which are alleged to be crimes in the Requesting State also constitute a crime in the Requested State by whatever nomenclature called. Plus, the Requesting State is at least able to convince the judicial authorities in the Requested State of at least ‘prima facie’ evidence for committal of the fugitive.
The rationale for dual criminality is that morally-ethically and legally too, any Requested State is not expected to arraign a person for temporary restraint of the rights or return of the fugitive, unless it could have done so in consonance with its own laws defining the offences or the procedure. When they cannot take away the rights for their own laws, they cannot conceive of doing it for some other State, is the fundament.
Why ‘Extradition’ Should be the Preferred Choice over ‘Deportation’
Deportation, however, works on a different principle – that the person’s presence on a country’s territory or jurisdiction is ‘not desirable’. Deportation is a broader concept – it can apply to criminals as well as non-criminals.
Deportation, however, is, inevitably of aliens or foreigners, never of own citizens. Sovereign nations have an absolute right to deport ‘any alien’ or deny an entry to anyone.
Deportation is a right of a sovereign nation and not a duty. Seeking a deportation formally is akin to asking the other country to exercise its rights in your favour. Although not legal, nations do push partner-countries to deport their own nationals or hand them over either formally or informally. Needless to say, factors like due process and extraordinary writ jurisdictions and remedies are available to the persons sought to be deported, too.
While deportation is dependent on the sweet will of the country on whose territory a ‘wanted person’ is found, extradition is decided on the strength of the evidence made available to a partner.
Ceteris paribus, extradition should be the preferred choice for seeking return of fugitives as it is tantamount to walking on your own legs—evidence—than on stilts. If one cannot resist the temptation, simultaneous deportation and extradition may be pursued, too, rather than only deportation. Perhaps even with Mehul Chinubhai.
What India Should Do to Block Fugitives’ Impunity
Requesting State and agencies could consider sending requests of mutual legal assistance (MLA) in criminal matters—letters rogatory—or investigation to the Requested States to obtain additional evidence and statements of the fugitives during the intermediate period. They can then explore the possibility of transfer of convicted offenders back to their countries of nationality for serving the sentence of conviction.
To block the impunity which criminals like Choksi, Nirav, and Mallaya and others exhibit, the possibility of urging the Requested country to launch prosecution—especially where the criminal is their own national and extradition is prohibited—should also be explored.
Advancements like video conferencing should be exploited, for both MLAs and extradition proceedings. Virtual participating in these proceedings at both executive as well as the judicial stages may hasten return of fugitives.
(Rupin Sharma is a 1992-batch IPS officer. He tweets @rupin1992. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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