AgustaWestland Deal: Extraditions Are More Politics Than Justice

Why the authorities are impatient to bring home certain fugitives more than the others, isn’t tough to answer.

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“And now you'll be telling stories

of my coming back

and they won't be false, and they won't be true

but they'll be real”

― Mary Oliver, A Thousand Mornings

In recent times, the Indian government has been struggling hard to bring the criminals absconding to foreign territories to book, as securing their deportation from the country they seek asylum in, can be a complicated process.

Simply put, extradition is a process by which the country to which the absconding criminal has fled to, hands him/her over to the country where the fugitive is alleged to have committed a crime, for prosecution. Countries enter into extradition treaties under which they mutually agree to hand over criminals wanted by the other.

Amidst the flak faced by Centre over the fleeing of Vijay Mallya, Nirav Modi and Mehul Choksi, as well as the Opposition crying foul over the government’s lack of transparency and accountability in the Rafale deal, the government recently had its moment, or rather two moments of jubilation – the extraditions of Christian Michel in 2018, and Rajiv Saxena on Wednesday, 30 January, in connection with the AugustaWestland chopper ‘scam’.

Rajiv Saxena, Deepak Talwar’s Extradition

It is the case of the Enforcement Directorate that Rajiv Saxena, against whom non-bailable warrants had been issued, along with his wife Shivani Saxena and their Dubai-based firms routed "the proceeds of crime and further layered and integrated in buying the immovable properties/shares among others." Deepak Talwar, another accused brought back to India from the UAE, is alleged to have played a vital role in important aviation deals during the UPA regime.

India and UAE have a mutual obligation to extradite criminals seeking refuge in their country after fleeing the other country, under an Extradition Treaty which was signed on 25 October 1999.

The treaty mandates that “the contracting state shall extradite any person found in their respective territories who is accused or convicted of an extraditable offence in the territory of the other contracting state, in accordance with the rules and stipulations contained in the subsequent articles, whether such offence was committed before or after the entry into force of this treaty”.

How Extradition Treaties Work

As an extradition treaty is an instrument governed by public international law (which also known as “soft law” for the lack of legally binding force), methods to ensure compliance of the extradition treaty between two countries, are limited. No doubt, as per the domestic legal system, the local courts of the country in which the fugitive is situated, may have the jurisdiction to adjudicate upon the request for extradition.

However, once refused, there is little the requesting country can do to bring the fugitive back. Therefore, extradition works on the principle of mutual cooperation, and hence, diplomacy and comity of nations plays a major role in the successful implementation of the terms of such a treaty.

It is also irrefutable that extradition requests and granting of the same often depend on the domestic politics and the political incentives of the government of both the state parties. Especially in a democratic set up, where power changes hands frequently and governments often change after serving a single term, the instrumentality of extradition treaties can be employed by the ruling party as a tool to gain short term political gains.

The state agencies which are responsible for processing the extradition requests to other nations and seeing them through, often prioritise certain extraditions, and the factors determining the priority of a particular case may often pertain to the political interests of the government in power.

Prioritising Some Extraditions Over Others

As William Magnuson, (Assistant Professor of Law, Texas A&M university, Climenko Fellow & Lecturer on Law, Harvard Law School) writes in his paper titled “The Domestic Politics of International Extradition” published in the Virginia Journal of International Law (Vol.52:839),“Domestic actors may also use international treaties as an alternative forum for pursuing domestic policy aims that are frustrated by local structures. When domestic interest groups cannot achieve their goals through domestic legislation, they may at times use international agreements as a substitute.”

Magnuson starts the paper by differentiating between the attempts made by the United States government in the case of whistleblower Julian Assange, and that of filmmaker Roman Polanski in 2009 respectively, and how, despite the two cases being similar in many ways, what sets apart the two, among other things, is “the different political dimensions of the Polanski and Assange extraditions.”

He justifiably speculates that due to the involvement of political considerations, Julian Assange is more likely to be returned to his country than Polanski.

No doubt, a successful extradition brings a sense of satisfaction to a nation and its people, for the interest of the society lies in fruitful implementation of its laws punishing criminal acts. However, why the authorities are impatient to bring home certain fugitives more than the others, is a question which does not require rocket science.

(Adeeba Mujahid is an Advocate-on-Record at the Supreme Court of India. She regularlypractices before the Supreme Court and the Delhi High Court. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)