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Extradition Law: Rules relating to Extradition of Economic Offenders

INTRODUCTION

Crime is increasingly turning international. Many serious offences now have cross border implications. Even in cases of traditional crime, criminals frequently cross borders so as to flee prosecution. In line with traditional principle of territoriality of legal code, a State won't usually apply its legal code to acts committed outside its own boundaries. However, there's a growing recognition that states should show solidarity in repression of criminality and co-operate within the international battle against crime. Though States refuse to impose direct criminal sanctions to offences committed abroad (except exceptional situations of extraterritorial jurisdiction), the states are usually willing to cooperate with one another in bringing perpetrators of crime to justice.

Extradition is that the surrender by one State to a different of an individual desired to be prohibited for crimes that he has been accused or convicted and which are justifiable within the courts of the opposite States. Surrender of an individual within the State to a different State whether a citizen or an alien may be a political act exhausted pursuance of a treaty or an appointment spontanepous.

A Request for Extradition will be initiated against a fugitive criminal[1], who is formally accused of, charged with, or convicted of an extradition offence[2].


Essential conditions for extradition:

i)The relevant crime is sufficiently serious.

ii)There exists a clear case against the individual sought.

iii)The event in question qualifies as against the law in both countries.

iv)The extradited person can reasonably expect a good trial within the

recipient country.

BASIC PRINCIPLES GOVERNING EXTRADITION

1.) Principle of relative Seriousness of the offence - Extradition is typically permissible just for relatively more serious offences, and not for trivial or petty offences.


2.) Principle of Dual Criminality: This can be the foremost important principle governing Extradition Law. This needs that the offence that the fugitive is purported to have committed, should be an offence both within the requesting moreover.


3.) Rule of specialty, that's to mention, when a fugitive is extradited for a selected crime, he is tried just for that crime . If the requesting state deems it desirable to undertake the extradited fugitive for a few other offence committed before his extradition, the fugitive should be delivered to the established order ante.


THE FUGITIVE ECONOMIC OFFENDERS BILL, 2018

In order to combat the fleeing of economic offenders to foreign jurisdictions, the government decided to come back up with the Fugitive Economic Offenders Bill, 2018 which might have a deterrent effect by way of confiscation of property i.e both domestic still as overseas assets which might enable the government to urge a hold over the economic offenders who would need to submit themselves to the jurisdiction of the Indian Courts.


Fugitive Economic Offenders Bill, 2018: Analysis of its provisions and its implications: Following the subsequent clearance from the Lok Sabha for the Bill on July 19th , the Rajya Sabha passed the Fugitive Economic Offenders Bill on July 25th, 2018 which seeks to deal with the problem of evasion of the legal process by economic fraudsters[3].


The Ordinance is geared towards creation of a special forum wherein the fugitive economic offenders are forced to return to face the prosecution within the ambit of jurisdiction of the Indian Courts[4].


Salient features of the bill

An offender under the Bill, briefly deprives the offender of civil remedies[5] and confers powers upon authorities like the Enforcement Directorate to confiscate properties including benami properties[6] and overseas assets, has set the pecuniary limit as 100 Crore wherein offences exceeding this threshold are going to be dealt under the new law[7].


The possible reasons for the new legislation to handle such offenders rather than strengthening the provisions of the Prevention of the cash Laundering Act (PMLA) could be manifold-the non-availability of civil remedies for a fugitive economic offender is an unique feature of the Bill which the PMLA is silent upon which supplies the Act a mere punitive effect instead of a deterrent effect as within the case of the Bill[8].


The Ordinance makes provision for the Special Court under the PMLA, 2002 to declare an individual as a fugitive economic offender when the person commits the offences as mentioned under the Schedule of offences attached to the Ordinance[9].

The first step for initiating proceedings under the Special Court, is by making an application by the Director or the other person Authorized by such a director not below the rank of a deputy director as under the PMLA[10]. The aim this application seeks to attain is to declare an alleged offender as a ‘Fugitive Economic Offender’.


CONCLUSION AND SUGGESTIONS

The Memorandum of Understanding signed by India and Britain on July 2018 aiming at closer cooperation within the matters of law and justice gives sufficient hope for a coordinated effort of both countries shows positive signs with respects to extradition of economic fugitives.


However, the Indian initiative to combat the fleeing of economic offenders by means of the Fugitive Economic Offenders Bill,2018 exposes plenty of grey areas that require to be sufficiently restrained while formulating the Act to confirm that the target is met. From the above analysis of its provisions, there's a large scope of unbridled power conferred upon the Authorized Office much beyond what has been conferred by means of the Prevention of cash Laundering Act,2002 which may cause dilution of the target of the Act. Additionally thereto, these provisions have an occasion of being challenged on its constitutionality because it violates the essential tenets of criminal jurisprudence and natural justice thereby undermining the proper to a good trial to such economic offenders. The full purpose of an extradition treaty between UK and India has been lost, if the loopholes within the law can enable economic offenders to evade the group action of law.


The financial capability of such offenders doesn't convince be a sound justification or rather an immunity from facing the punishment for such offences.

[1]As per S.2(f) :’A fugitive criminal’ means a person who is accused of, or is convicted of, an extradition offence within the jurisdiction of a foreign State and includes a person who, while in India, conspires or attempts to commit or incites or participates as an accomplice in the commission of an extradition offence in a foreign State. [2]As per S.2 (c): “extradition offence" means: (i) in relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty with that State; (ii) in relation to a foreign State other than a treaty State or in relation to a Commonwealth country an offence which is specified in or which may be specified by notification under the Second Schedule. [3] Parliament passes Fugitive Economic Offenders Bill, The Economic Times, July 25,2018 [4] What is the Fugitive Economic Offenders Bill 2018?,The Indian Express, July19,2018 [5] Section 18 of the Fugitive Economic Offenders Bill, 2018 [6]“benami property” means any property which is the subject matter of a benami transaction and also includes the proceeds from such property. A “benami transaction” means a transaction or an arrangement—(a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and (b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration. [7]Dinesh Unnikrishnan,Fugitive Economic Offenders Bill: A potent weapon, if rightly used,can bring the Mallyas, Choksis back to where they belong, Firstpost ( August 20, 2018)https://www.firstpost.com/business/fugitive-economic-offenders-bill-a-potent-weapon-if-rightly-used-canbring-the-vijay-mallyas-mehul-choksis-back-to-where-they-belong-4822951.html [8]KR Srivats,Fugitive Economic Offenders Ordinance seeks to plug loopholes in existing laws, The Hindu Business Line, April 22,2018 [9] KR Srivats, Fugitive Economic Offenders Ordinance gets Cabinet nod, The Hindu Business Line, April 21,2018 [10] Section 49(a) of Prevention of Money Laundering Act,2002



Author Details: Pritika Nagpal (Jim's school of law (Affiliated to IP University)


The views of the author are personal only. (if any)


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