Fugitive diamond merchant Nirav Modi lodged at Wandsworth Prison in South West London since May 2018 for extradition to India, has been contesting his return to India for four years now. What he has been incarcerated for, is technically called “provisional arrest” — a temporary measure enacted to prevent an absconding accused from hoodwinking the law and remaining untraceable.
A provisional arrest is an unusual measure and is resorted to by the country of residence or transit of an accused. It usually is only an interim measure to ‘immobilise a fugitive’ for a relatively short duration—60-90 days in most cases, to allow time for the country where the accused is wanted, to prepare and send a ‘formal’ extradition request.
However, it isn’t unusual for a fugitive to be released on bail even during the period of provisional arrest if the detaining country and its criminal justice system is convinced that the accused is not a flight risk.
The Variaton in Executing Extraditions
The corollary is that once arrested and if the authorities believe that the fugitive is a flight risk, bail or release from custody is denied at the discretion of the courts. Naturally, it is therefore, safe to conclude that Nirav Modi is a high ‘flight risk’ person and the British courts are also of an opinion that he is likely to interfere with the course of justice if he is released, pending the determination of his extradition.
Extradition proceedings in both Common law countries and Civil law ones follow some basic trajectory— determination of dual criminality ( that the alleged offence is punishable in both countries), that there is prima facie evidence of culpability, that the person is not being persecuted on account of his political opinions or race, religion, caste, ethnicity, language, gender etc.
The speed of these three determinants varies across the globe with the common law countries being particularly sloth and India being no exception. The 'Inquiry Magistrate' tasked with establishing that the act or ommission as a crime in both countries (called 'dual criminality') and that there is prima facie evidence linking the crime, evidence and the accused fugitive is strong in common law countries which usually grant repeated adjournments, thus, leading to prolonged and delayed proceedings.
In civil law countries, this process is quicker and in some cases, the domestic laws even make the determination 'time-bound'. Portugal has strict timelines which resulted in a relatively quick return of Abu Salem and Monica Bedi to India.
Needle Shifts From Crime To Trial Process
Adding unforeseen complexity, delays and uncertainty to extradition proceedings are factors like the pleas of 'persecution', the principle of non-refoulement (not forcing refugees or asylum-seekers or fugitives to return to a country in which they are likely to be subjected to persecution) and human rights issues.
These are loosely defined principles, lending themselves to wide and subjective interpretations depending on the socio-cultural-economic ethos and individual opinions too.
Almost inevitably, all fugitives involved in economic offences (the rich) or the ones involved in offences which can be buttressed with 'political offences logic' bring into play these factors.
In most cases, despite there being an overwhelming evidence of duality and prima facie linkages between crimes and fugitives, they are able to sway the opinions of the countries of their refuge and divert their attention from factors other than crime to the 'process factors' — unfairness of trial or environment for trial or incarceration.
There are no quick-fix solutions. Countries and their systems and value systems will always remain different.
However, aren't the treaties supposed to bridge these differences? Isn't it natural that once the countries have agreed to a set of principles for extradition, there is an implicit agreement and acceptance of each others' criminal justice systems— the police, investigators, the judiciary and prisons? Aren't treaties also an acceptance of the pitfalls of either system?
The obvious and unequivocal answer is 'Yes'.
Countries Should Avert Unnecessary Delays
By bringing in extraneous factors into extradition proceedings, the countries are belying the trust which the treaties explicitly imbibe. Therefore, unless the 'process violations' are stark and obvious, countries would be well advised to not entertain frivolous pleas which are aimed at delaying the renditions.
Another suggestion to counter the delays in extradition can broadly be categorised as 'negotiated surrenders'. These negotiated or conditional surrenders could be negotiated directly with the fugitives or through the country of residence or by way of 'plea bargain assurances' or on jail conditions or conditions of bail or even permitting the 'delivering country' to oversee or watch the trials or jail conditions or consular or jail visits. The scope of what the 'negotiated surrenders ' would entail is a detailed matter but needs to be left open-ended.
These have all been done in the past in various cases - Kulbir Singh Barapind and Daya Singh being examples where GoI assured the country granting the extradition, that there are adequate safeguards against torture, to enable fair trial and even personal liberty under the Indian Constitution.
In fact, in Barapind case, GoI also agreed to keep the American Govt informed about the criminal proceedings under the 'Consultation' clause of the treaty. Allowing consular visits to officials of the extradition country have also been acceded to besides limiting the quantum of punishment (25 years or no capital punishment) as in Abu Salem.
Besides these, if the treaty countries were to agree that the periods of detention in custody prior to the extradition were not to be counted as sentence, this tactic may also push the fugitives into realising the futility of delays in return. Post-extradition, the trials need to be completed in a speedy and time-bound manner, and requisite amendments in the Indian laws on this count would help bring sanity into a system where the process itself gets equated with punishment.
Securing the return of a fugitive quickly is a bigger deterrent for criminals and perhaps the proof that the arms of law are long enough to net any criminal. In introspection, our own systems of returning fugitives to foreign countries also need to be streamlined, so that besides the legal and treaty aspects, we too stand on a firmer moral high ground on extradition matters.
Nirav Modi and others like Mallya and Choksi etc., are merely playing around with time to exhaust his remedies and delay the return. Negotiated or conditional surrender or waiver on his part will definitely bring relief.
A word to keep him upbeat - Indian prisons are no longer the dungeons of the past. There is little or no torture which takes place in prisons. One institution which has raised the threshold of human dignity and personal liberty in India is definitely the prisons. He can take my word upon that.
His interrogation by the law enforcement agencies is something which he may be dreading. On this count too, there is not much to fear. The agencies would have piles of evidence already. If he cooperates, his interrogation will be absolutely torture-free. Even here, the GoI can probably render assurances that his custodial interrogation will be videographed, something which the premier agencies usually do.
It is a matter of plugging some leaks and misconceptions in his mind and those of the ones he is intending to convince by bringing into play isolated and scattered incidents. We can help that too.
(The author is an IPS Officer currently posted as DG Prisons, Homeguards and Civil Defence in Nagaland. 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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