Answer By law4u team
In the absence of a formal extradition treaty, securing the custody of an individual who is located in another country and is wanted in India for criminal prosecution or investigation can be challenging. However, India still has several legal and diplomatic mechanisms at its disposal to bring such individuals to justice. These alternatives often involve international cooperation, diplomatic negotiations, and requests for custody through various means, even without a bilateral extradition agreement.
India's approach to such cases involves a combination of legal frameworks, international cooperation, and requests through multilateral organizations, such as Interpol, to ensure that criminals who have fled the country can be apprehended and brought back for trial.
Mechanisms for Securing Custody Without an Extradition Treaty
1. Mutual Legal Assistance Treaties (MLATs)
MLATs are agreements between countries that provide a framework for legal cooperation in criminal matters. Unlike extradition treaties, which focus on the transfer of individuals for prosecution or punishment, MLATs allow for a broader range of cooperation, including sharing evidence, investigating crimes, and securing custody.
Even if India does not have a formal extradition treaty with a country, it may still engage in MLATs or similar agreements to seek assistance for apprehending fugitives, gathering evidence, or obtaining judicial orders for the individual’s detention or transfer.
2. Interpol’s Role in Securing Custody
Interpol (International Criminal Police Organization) plays a crucial role in international law enforcement. India can request a Red Notice through Interpol, which serves as an international alert to locate and detain the individual in another country.
A Red Notice does not constitute an arrest warrant but can serve as a request for provisional arrest until the formal extradition process is initiated or alternative measures are taken, such as deportation.
Member countries of Interpol are typically obligated to cooperate in the arrest and detention of individuals who are the subject of a Red Notice, even if there is no extradition treaty in place.
3. Deportation and Immigration Law
In cases where there is no extradition treaty, India may seek to deport a fugitive if they are in violation of the immigration laws of the country they are residing in.
Deportation is typically based on an illegal stay in the host country or a breach of visa terms, rather than on the extradition of the person to face criminal charges.
If a fugitive is located in a country that allows for deportation under its immigration laws, India may request deportation, especially if the person has entered the country illegally or has overstayed their visa.
4. Bilateral Diplomatic Channels
Diplomatic negotiations play a key role when there is no extradition treaty between India and the country where the fugitive is located. The Indian government can engage in direct diplomatic talks to persuade the other country to hand over the individual.
These negotiations often focus on the nature of the crime committed and the humanitarian and legal obligations of the foreign country. For example, a country may agree to return a fugitive to India based on goodwill, the political relationship between the two nations, or on the condition of facing trial in India for specific charges.
5. UN Conventions and International Treaties
International conventions, such as the United Nations Convention Against Transnational Organized Crime and the UN Convention Against Corruption, encourage countries to assist in criminal matters such as fraud, corruption, and drug trafficking, even without a bilateral treaty.
India can invoke such conventions to seek cooperation for custody or detention of individuals suspected of committing international crimes.
6. Provisional Arrest Requests
Under international law, countries can sometimes request the provisional arrest of individuals pending formal extradition or transfer. Such requests are generally supported by evidence that the person is wanted for a serious crime, and the arrest is typically made based on interim arrangements.
These arrangements might not involve the immediate transfer of the accused, but they do provide a temporary legal mechanism for detaining the individual.
7. Foreign Arrest Warrants and Indian Court Orders
India can seek an arrest warrant through its courts, which might allow for the individual’s detention in another country, even without an extradition treaty. In some instances, the courts of a foreign country may agree to honor the Indian warrant if the accused is located there.
This method works in conjunction with the diplomatic and legal systems of the host country to allow temporary detention and a formal request for extradition or prosecution.
Challenges Faced by India in Securing Custody Without Extradition
1. Sovereignty Issues
Countries that do not have an extradition treaty with India may be hesitant to surrender individuals for prosecution, as it can raise concerns related to sovereignty and jurisdiction.
There may be reluctance to interfere in the internal legal matters of another country, particularly if there are concerns about the fairness of the Indian justice system or human rights issues.
2. Diplomatic Complications
Securing custody without a formal treaty can be a slow and complex process involving prolonged diplomatic negotiations. Political tensions, international relations, and the severity of the alleged crime can influence the outcome.
3. Human Rights Concerns
Countries that do not have a formal extradition agreement with India might have concerns over whether the individual would receive a fair trial in India. Issues like the death penalty, torture, or the condition of Indian jails can be factors that may prevent another country from complying with a request.
4. Legal Framework
Some countries may require formal legal procedures for arrest, such as the establishment of the individual’s identity or the formal presentation of charges. Without a treaty, some of these procedures might not be recognized or honored by the foreign country.
Conclusion
Although the absence of an extradition treaty complicates the process of securing custody of fugitives, India still has several international legal mechanisms and diplomatic tools at its disposal. Through the use of Interpol Red Notices, diplomatic negotiations, mutual legal assistance agreements, and provisional arrest warrants, India can effectively pursue fugitives even in the absence of a formal treaty. However, these mechanisms are not without their challenges, particularly concerning issues of sovereignty, human rights, and legal procedures in foreign jurisdictions.
In such cases, multilateral cooperation and diplomatic leverage often become key to ensuring that individuals are brought to justice in India, even without a direct extradition framework.
