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Nirav Modi and Vijay Mallya: The poster boys of the wilful defaulters' gang!
The fugitive billionaire-jeweller Nirav Modi, who is wanted in India and is due to stand trial for his central role in the over Rs 13,000 crore Punjab National Bank (PNB) fraud, is reportedly in the UK, seeking asylum from what he has ingeniously termed as "political persecution".

Modi, who has been on the run since January 2018 and has been reportedly spotted in Dubai, Hong Kong, Belgium, and New York since then, appears to have finally taken a leaf out of liquor-baron and "poster boy" for bank defaults Vijay Mallya's book and chosen to take refuge in the cooler climes of the UK, which is of late emerging as a safe haven for those facing allegations of financial misappropriation in their home countries.

While Modi's presence in the UK has been confirmed by the UK authorities in no time, the country has a not-so-encouraging track record of extraditing fugitives on their soil. Since 1992 when India entered into an extradition treaty with the UK, India has managed just one successful extradition from the shores of the UK -- that of Samirbhai Vinubhai Patel, wanted in connection with a 2002 Gujarat riots case, that too because he gave his consent to the extradition, which came about in October 2016.

The other fugitives who have taken refuge in the UK and wanted in India such as Nadeem Saifi (in connection with the Gulshan Kumar murder case), Tiger Hanif (Gujarat blasts case), Ravi Sankaran (Naval war room leak case), Sanjeev Chawla (cricket match-fixing case) Lalit Modi (financial irregularities in IPL cricket), and Vijay Mallya (bank fraud and money laundering) have evaded extradition because they have, unlike Samirbhai Patel, legally opposed their extradition.

What is extradition? Given that under the principle of territoriality of criminal law, a country would not apply its penal statues to criminal acts committed outside its national boundaries, a process was needed, using which a country could request another to surrender a criminal or an accused found within the latter's jurisdiction for trial or punishment under the laws of the former. This process of surrender of a person by one state to another is known as extradition. Extradition ensures that a criminal does not exploit the principle of territoriality of criminal law to evade punishment and thus helps in the international fight against crime.

However, extradition sounds much easier on paper than in reality, especially when it involves sovereign nations. Usually, when an accused flees his home country and is spotted in another, a Letter Rogatory (LR) is sent by a court of the home country to a court of the foreign country seeking judicial assistance. How the foreign court/authority acts on the LR sent is strictly determined by the guidelines provided in the extradition treaty, if any, signed between the two countries.

In the absence of an extradition treaty between the two countries, the request for extradition will be considered under the laws of the country from which the fugitive has to be extradited and would require a lot of cooperation and coordination between the various legal and administrative wings of both countries.

Whether there is an extradition treaty or not, a country, before acting on a request for extradition received, may consider the following: whether the person requested to be extradited has fled from political/religious persecution in his country (if yes, the request may be flatly rejected); whether the accused might get capital punishment after extradition (especially if the request receiving country has banned capital punishment); whether the crime allegedly committed by the accused falls in the category of dual criminality (i.e., punishable under the laws of both countries); whether the accused is wanted to stand trial for any crime committed locally (the sanctity of local laws take precedence over that of foreign laws).

The person sought to be extradited can legally challenge, delay, and eventually scuttle the extradition process if he can establish validly why his extradition is in contravention of the principles of natural justice and the statutory laws of the land where he has taken refuge.

In India, the Extradition Act, 1962 governs the extradition procedure. As of today, India has signed extradition treaties with thirty-seven countries and has extradition arrangements with eight.

While India and the UK inked an extradition treaty in 1992, many bottlenecks remain. For one, India has not yet scrapped death penalty from its statutes. The UK government is also concerned about the poor prison conditions in India. Wealthy fugitives like Vijay Mallya and Nirav Modi can take heart from the verdict in the Sanjeev Chawla case: a lower court in the UK denied the extradition of bookie Sanjeev Chawla -- a key accused in the cricket match-fixing scandal during South Africa's tour of India in 2000 -- on human rights grounds, citing the sordid conditions, such as overcrowding, endemic violence, and lack of medical facilities, prevailing in India's Tihar Jail.

In what can be seen as a portent of things to come, on July 31, the Westminster Magistrates' Court in London, which is hearing the Vijay Mallya extradition case, asked the Indian authorities to submit within three weeks a video of the cell at the Arthur Road Jail in Mumbai where they plan to keep Vijay Mallya post extradition.

Maybe Indian authorities should consider a "Swachh Prison" campaign before sending the next LR to the UK.

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