Easy Extradition: Letters Rogatory May Become Thing of the Past

Extradition would be facilitated easily and would not be delayed by procedural wrangles if a new bill is passed.

Since international treaties and conventions signed by the government are ipso facto not enforceable and do not automatically become part of national law, the Bureau of Police Research and Development (BPR&D) has drafted the ‘Mutual Legal Assistance Act in Criminal Matters’ which, once approved by Parliament, will provide legal sanctity to such pacts.

India has so far signed 39 mutual legal assistance treaties (MLATs) but the process of gathering evidence abroad continues to be court-issued and diplomatically delivered through Letters Rogatory. The new Act, once passed, would help in easy extradition of wanted persons from neighbouring countries such as Bangladesh, Nepal and Bhutan, and the US where 26/11 Mumbai terror attacks mastermind David Coleman Headley is currently serving a 35-year prison term.

In the past, India has often found itself involved in long-drawn-out legal processes to procure the custody of wanted criminals – like Abu Salem from Portugal in 2005 – and wants the system streamlined with an enabling law.

New Bill On Extradition

• Currently, India obtains foreign-located evidence through Letters Rogatory
• But for prompt action, Mutual Legal Assistant Treaties (MLATs) Bill needs passage in Parliament
  
• MLATs address concerns such as summoning witnesses located in another country, easy facilitation of documents and other real evidence
  
• India will join Switzerland, UK, Canada, Australia, Germany, Thailand and Japan which have their own national mutual legal assistance laws
  
• Bill also talks about overcoming banking and business secrecy laws that hamper investigation
  
• India will also provide assistance to any foreign state irrespective of a prior agreement
  

India’s Obligations

However, more recently in the matter of Chhota Rajan’s extradition from Indonesia, Anil Wadhwa, Secretary (East) in Ministry of External Affairs, went on record stating: “We don’t need to have a formal extradition treaty for somebody to be extradited to another country. There are various others means and arrangements in today’s days and age...and it has happened before.”

Yet, the draft legislation, jointly prepared by the BPR&D, with inputs from CBI and NIA officers, would provide the government with powers to implement India’s obligations under the international treaty.

It says that with crimes increasingly becoming transnational, Indian law enforcement agencies are seeking and providing mutual legal assistance in criminal matters to bring the guilty to book. While at present India obtains foreign-located evidence through court-issued and diplomatically-delivered Letters Rogatory, for prompt action the new Mutual Legal Assistant Treaties (MLATs) Bill would need to be introduced and passed by both Houses.

What MLATs Bill Envisages

MLATs provide for sharing of information and evidence related to criminal investigations and prosecutions in transnational crimes, including corruption, tax evasion, drug trafficking and narcotics, money laundering, terrorism and human trafficking.

MLATs address the ability of one government to summon witnesses located in another government’s territory, to compel the production of documents and other real evidence, to issue search warrants and to serve process. They also provide means to overcome bank and business secrecy laws that may frustrate effective investigation of large-scale transnational criminal operations.

India now seeks to join Switzerland, Sweden, Singapore, UK, Canada, Australia, Germany, Thailand and Japan which have their own national mutual legal assistance laws.

The move assumes significance since India signed the United Nations Convention Against Corruption (UNCAC) in 2005 and ratified it in 2011. It had also signed the United Nations Convention Against Transnational Organised Crime (UNCTOC) in 2002 and ratified it in 2011. These pacts note that “State Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this Convention.”

Assistance to Other Countries

The draft law provides for “assistance” in respect of “investigations, prosecutions or proceedings in criminal matters”. It notes that assistance may be provided to any foreign state whether on the basis of an agreement or not. It also regulates the rendering of assistance by India to any foreign state, unless otherwise regulated by agreement.

It states that “mutual legal assistance requests, in urgent cases, may be transmitted through INTERPOL channels of communication.”

The draft also provides that India would honour the sentiments of countries which are against capital punishment. In case of requests for seizure and confiscation of funds meant for financing acts of terrorism, the basis for belief that the funds are being used would be enough for action under the proposed legislation.

(The writer is a Delhi-based freelance journalist)