INDIA has too few extradition treaties. A fact brought into focus when the CBI failed to extradite Italian businessman Ottavio Quattrocchi from Malaysia for alleged kickbacks received in the Bofors gun deal.
R.S. Sodhi, a senior Supreme Court advocate who has dealt with extradition cases blames it on successive governments. "If we don't have more extradition treaties, we can't safeguard our legal system. Increased trade and travel make this essential". But why aren't there more treaties? One senior bureaucrat puts the reason down to "administrative constraints".
Although the Indian Extradition Act went into force in 1962, India has entered into only seven formal treaties and only nine less formal "arrangements" for extradition. "It is very curious why the Indian Government does not have treaties with either Hong Kong or Dubai which are favourite boltholes," says one legal expert.
While India has treaties with the US, the UK, the Netherlands, Belgium, Nepal, Bhutan and Canada—and is negotiating a treaty with Russia—it has "arrangements" with Tanzania, Australia, Singapore, Sri Lanka, Papua New Guinea, Fiji, Thailand, Germany and Switzerland. Under a bilateral "arrangement" the countries mutually extend their extradition legislations. In contrast, Australia has about 55 bilateral treaties and 70 'arrangements' with Commonwealth nations. The UK has signed about 47 bilateral treaties.
Asked which countries India should have treaties with, a senior bureaucrat said: "France and Sweden." But no reason was given. One explanation for the paucity of treaties is: "We go into such arrangements only when the need arises." But when the need arose with Quattrocchi, it was too late.
With an extradition treaty a government can request for the recall of a particular individual. The fugitive must be charged with an offence under which he/she can be extradited that carries a prison sentence of more than a year. The local magistrate must decide whether to issue an arrest warrant based on information about the case. The fugitive then has his day in court (in the country from where he is to be extradited) before being packed off to the country that has issued the arrest warrant. His extradition is by no means a fait accompli as this initial procedure could run against the government seeking extradition—the case may be dumped for lack of evidence etc.
"People are under the mistaken impression that one can just spring on a fugitive, but the procedure could take months," says K.C. Singh, joint secretary consular, passport and visa division. Iqbal Mirchi, one of the Bombay blast case accused, was detained in London for a number of crimes, including smuggling. But he has been on bail for over a year because of the Indian investigative agencies' failure to collect sufficient information to give to the British courts. "If you can't handle litigation properly in your own country, how can you handle it on an international level?" asks one lawyer.
In one badly botched extradition, biscuit king Rajan Pillai, wanted by Singapore for 23 counts of breach of trust and one of cheating, died in Tihar Jail before he could be extradited. The Indian jail system was blamed for his death, four days after he was taken into custody.
The Indian Government seems unable to help its own judicial system even in a tragedy such as the Union Carbide disaster. Warren Anderson, then CEO of the American company who faced criminal proceedings in India, jumped bail and fled back to the US where he is a free man. "The decision to initiate extradition proceedings stems from a grand conspiracy between two nations and their opinions as to who warrants extradition," says advocate Rakesh Luthra. While this may be an exaggeration, the truth is not far off.
Without a treaty or arrangement, diplomatic cooperation is the only other recourse. And the Indian Government may have lost its chance for such negotiations to get Quattrocchi from Malay sia. "I don't know why the CBI went there because even without a treaty there is a procedure. And the Extra dition Act does not allow them to go," says Luthra.
"Problems relating to extradition have increased over the years," says V.K. Ohri, a lawyer for Om Prakash Srivastava, alias Babloo, an alleged killer. Babloo's extradition from Singapore took months. When former Union minister Ram Niwas Mirdha's son was kidnapped, the trail led to Daya Singh Lahoria and his wife—they were recently sent back from the US. These are among the few to have been extradited. One cynical advocate believes that it was not until after the spread of terrorism that India developed a need for extradition treaties. "Before this, the Government did not protest too much when alleged criminals fled over the border," he said. The Government's protests have not grown much louder since that time either.
