Originally Published 2019-02-11 11:17:23 Published on Feb 11, 2019
What India can learn from its recent successes in extradition, is to see the best practices it adopted, and implement it in its pending extradition requests.
AgustaWestland Row: India-UAE bilateral ties helped extraditions
India’s track record in extraditing fugitives from foreign countries has been fairly low, with only one in three fugitives being successfully extradited to us. India’s unsuccessful attempts to bring back criminals, particularly those accused of economic offences like Lalit Modi, Nirav Modi and Mehul Choksi, have brought to the fore various legal, procedural, substantive and systemic challenges to extradition. However, new developments comprising the successful return of fugitives accused in the AgustaWestland case are being held as a big relief amid India’s previous difficulties with extradition requests.
In the last two months, the UAE has extradited Christian Michel, Deepak Talwar and Rajiv Saxena, in connection with the alleged scam. This case is presented as a turnaround in India’s uneven extradition track record, and is being attributed to sustained diplomatic efforts by the present government.

Extradition and the criminal justice system

As mentioned previously, India’s success rate with extradition has been abysmally low. A research paper written by this author provides a detailed discussion of various legal and non-legal challenges to securing the return of fugitives from foreign countries. Extradition requests must fulfill conditions laid out in extradition treaties, and adhere to long and complex procedural requirements. These requirements, which may be as routine and banal as providing English translations for Hindi documents, can lead to the rejection of requests if they are not adhered to.
Petitions seeking refusal of extradition on grounds of facing poor prison conditions and custodial violence, are frequently allowed by UK and European courts that are more sympathetic to human rights concerns. Other trends, such as a higher likelihood to extradite those accused of grave offences, like terrorism, as opposed to economic offences, can create additional hurdles for the criminal justice system.

Role of diplomacy and bilateral relations

An interesting, albeit unpredictable, factor to a successful extradition request is the role of diplomacy and bilateral relations. The extradition of Christian Michel, Deepak Talwar and Rajiv Saxena is being hailed as a diplomatic success, and has been attributed to a “personal touch” in bilateral relations between India and the UAE. Extradition is sometimes viewed as both a judicial and a political process. When India transmits a formal extradition request to its diplomatic counterparts abroad, the foreign government is required to act on it by issuing an extradition order and fight the case, on behalf of India, before their courts. The expeditious processing of requests and the commitment to defend the case before Courts, depends on bilateral relations and the opportune use of diplomacy and negotiations to push for the process by the requested country.
The diplomatic efforts, and the legal and investigative support provide by the CBI in the AgustaWestland case cannot be overlooked. However, at the same, it is important to consider other factors that have played a crucial role in the return of the fugitives.

UAE no more a haven for Indian fugitives

The three accused individuals have been deported from the UAE, a country that is single-handedly responsible for extraditing a whopping 20 fugitives out of the total of 70 that have been returned to India since 2002. This is roughly over one-fourth the number of India’s total number of successful extradition requests, and is double the number fugitives that have been returned to India from the USA.
While it is difficult to pinpoint the exact factors that have resulted in a robust extradition cooperation between India and the UAE, there are various global and political developments which helped re-shape our bilateral relations with the UAE. With the end of the Cold War, the UAE distanced itself from the US and Pakistan, and saw India as an important partner in South Asia. The two countries developed strong ties through energy cooperation, investment, trade and the movement of labour. These factors, coupled with regular, high-level visits between the two countries, have strengthened bilateral ties. The UAE is, thus, a country that one would shy away from calling a “haven” for wanted fugitives.

How India can build seamless extradition mechanism

Though politics and diplomacy play a crucial role in securing the return of fugitives, they cannot override the role played by the law and the judiciary in scrutinising and approving extradition requests. The AgustaWestland case, which has been under investigation by the CBI since 2013, involved sufficient evidence of corruption and bribery to establish that there was, indeed, a case to be tried here. It would have been odd if the UAE did not proceed with processing and approving the extradition requests. What India can learn from its recent successes in extradition, is to study and learn from the best practices it adopted in this case, and implement it in its pending extradition requests.
Given the obstacles India faces in securing the return of these fugitives, the country must swiftly implement reforms to create a seamless extradition mechanism.
This commentary originally appeared on The Quint.
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