Before proceedings further, let us consider two foreign judgments first:
1. French Court
Case title: De Zorzi v. Attorney General Appeal Court of Paris, France
Citation: [2019] EWHC 2062 (Admin)
Facts: Ms. Zorzi was facing a trial in the district court of France. Pending decision, she was released on 15 July 2000 under ‘judicial supervision’. She was told that she was free to leave France but would have to return the following year. She was required to respond to summonses issued by the French court and to inform the court of any change of address. She was living in the Netherlands. The district French court were able to write to her on 30 October 2000 at her Dutch address, therefore, she was not, during that period, unlawfully at large nor was she a fugitive. She was required to attend the court in France on 28 June 2001 and she did so. She was ultimately convicted but was informed of it when she had already returned to the Netherlands after appearance on 28 June 2001. After her conviction, the district judge of the French court declared her as fugitive for four reasons: First, she acquired this status because she was informed in writing of the conviction and sentence not long after they were decided although the intimation was served to her in the Netherlands. Second, she appealed conviction and sentence through her lawyers. Third, she chose not to surrender herself to the French prison authorities when required to do so. Fourth, she was aware that her return was sought when she was subject to the extradition proceedings in the Netherlands. This declaration of status as fugitive was overturned by the appeal court. The appeal court held that firstly there was no clear evidence that she fled to Holland to avoid being told the outcome of the trial; instead she was simply returning home. The appeal court opined that mere receipt of a document from a foreign court by a person in the country of their residence informing them of their conviction in that foreign state and requiring their return does not make them a fugitive. It cannot be said that that person knowingly placed herself beyond the reach of a legal process when they were already beyond its reach. Secondly, her appealing a sentence does not amount to her knowingly placing herself beyond the reach of a legal process; on the contrary she is engaging in the legal process, albeit at a distance and by means of her lawyers’ representations. Thirdly, to surrender herself to the French prison authorities would have amounted to abandoning her resistance to extradition, and resisting extradition does not render an individual a fugitive. In any event, declining to surrender herself to the requesting state does not constitute knowingly placing herself beyond the reach of a legal process. It amounts instead to declining to place herself within the reach of that process. She was not obliged to place herself within the reach of a legal process instituted in another country and to leave and give up her home and lawful residence. Fourthly, the fact that she was aware that her return was sought when she was subject to the extradition proceedings in the Netherlands is of no consequence.
UK: The High Court of Justice
Case title: Marianne PillarNeumann & Public Prosecutor’s Office
Citation: [2017] EWHC 3371 (Admin)
Facts: District Judge found appellant fugitive on the ground that in 2004 the appellant became aware that a domestic warrant for her arrest had been issued in Austria and that by failing to leave her home in the UK and to go to Austria, so that she could be arrested pursuant to that warrant, she was evading arrest and was therefore a fugitive. The High Court rejected this finding and opined that even if she was aware of the domestic warrant, lawfully remaining in her established country of residence does not mean she was evading arrest or was a fugitive. The court held that she was not fleeing the country or concealing her whereabouts. She was not taking any positive steps to evade or avoid arrest. She was simply carrying on living in her country of residence, as she was lawfully entitled to do. The High Court added that she was not knowingly placing herself beyond the reach of a legal process. There is no case in which it has been found or even suggested that failing to give up home and lawful residence in order to place within the legal process instituted in another country makes someone a fugitive. The High Court, in fact noted that “fugitive” is not a statutory term but a concept developed in the case law. To declare a person’s status as a fugitive, it must be established to the criminal standard. In this case, the district judge was wrong to find to the criminal standard that the appellant was a fugitive.
In this backdrop, let’s consider a situation in India. An individual, a citizen of India, acquires citizenship of another country after clearance by Indian authorities (thereby automatically ceases to be an Indian citizen) and permanently shifts to the other country and starts living there lawfully. Subsequently, Fugitive Economic Offender Act is enacted and proceedings commenced against that individual who is a lawful citizen of another country. A notice is served upon him asking him to surrender to face prosecution or else be declared a fugitive. A fundamental question arises. Does that individual, a foreign national, not have right to decline placing himself within the reach of process issued by Indian court under the FEO Act and instead exercise his rights to resist extradition? The answer, in my opinion, is yes. He has right to decline surrender and right to resist extradition during which time he cannot be declared a fugitive. But, the law as it stands in India, FEO Act declares an individual fugitive even if that individual lawfully acquired citizenship of another country much before the enactment and commencement of proceedings under FEO Act. Things would have been different had there been a clear evidence to criminal standard that the individual possessed knowledge of the FEO proceedings while he was in India and he knowingly fled to another country to intentionally place himself beyond the reach of process. But to declare an individual fugitive who has already left India and its citizenship is not only a retrospective action but also amounts to making him abandon resistance to extradition, which is his basic legal right.
The ‘statement of objects and reasons’ of the Fugitive Economic Offenders Act (herein after referred to as FEO Act) is as under: –
“There have been several instances of economic offenders fleeing the jurisdiction of Indian courts anticipating the commencement of criminal proceedings or sometimes during the pendency of such proceedings. The absence of such offenders from Indian courts has several deleterious consequences, such as, it obstructs investigation in criminal cases, it wastes precious time of courts and it undermines the rule of law in India. Further, most of such cases of economic offences involve non-repayment of bank loans thereby worsening the financial health of the banking sector in India. The existing civil and criminal provisions in law are inadequate to deal with the severity of the problem. In order to address the said problem and lay down measures to deter economic offenders from evading the process of Indian law by remaining outside the jurisdiction of Indian courts, it is proposed to enact a legislation, namely, the Fugitive Economic Offenders Bill, 2018 to ensure that fugitive economic offenders return to India to face the action in accordance with law.”
The words, “…to ensure that fugitive economic offenders return to India to face the action in accordance with law.” are of utmost importance.
Similarly, section 2(f) of the FEO Act states “fugitive economic offender means any individual against whom a warrant for arrest in relation to a Scheduled Offence has been issued by any Court in India, who— (i) has left India so as to avoid criminal prosecution; or (ii) being abroad, refuses to return to India to face criminal prosecution”
Likewise, when a notice is issued under section 10 (3) of the FEO Act, it requires the individual to appear in person at a specified place and time and failure to appear shall result in declaration of the individual as fugitive economic offender. After issuance of notice, section 11 of the FEO Act states that if the individual ‘appears in person’, the special court may terminate the fugitive proceedings.
Words, “…to ensure that fugitive economic offenders return to India to face the action in accordance with law…” used in the statement of objects and reasons of the FEO Act together with the words “..being abroad, refuses to return to India to face criminal prosecution” appearing in section 2(f) and words “appear in person” used in section 10 and 11, leads to an inevitable conclusion that the intent and the objective of the FEO Act is to bring back the accused to face prosecution or else confiscate his properties.
Now, the question that arises is whether an individual, who is lawfully residing in his country of residence, even if he is aware of the domestic warrant issued in the requesting state, be declared fugitive, if the individual declines to place himself within the reach of that process?
The answer, in my personal opinion, as well as in terms of decisions passed by the foreign courts is no.
Let us now analyse FEO Act from an international perspective.
New Zealand
United Kingdom enacted Fugitive Offenders Act on 27th August 1881. In 1881, New Zealand had been a “self-governing colony” of the United Kingdom with the Parliament of the United Kingdom retaining the power to legislate for the colony. Thus the 1881 Fugitive Offenders Act had applied to New Zealand. In 1947 the New Zealand Parliament enacted the Statute of Westminister Adoption Act by virtue of which it acquired full power “to make laws having extra-territorial operation. Subsequent repeals of relevant sections of the New Zealand Constitution Act 1952 by the New Zealand Constitution Amendment Act 1970 completed the process in the evolution of New Zealand as an independent State. Consequently, in 1976, when the United Kingdom repealed and replaced the 1881 Act with a new Act, its application was not extended to New Zealand. The Parliament of the United Kingdom replaced 1881 Act with an up-to-date one but in New Zealand 1881 Act still subsisted like an unburied corpse. It was then that the Government noted that it should decide whether to ask Parliament to replace 1881 Act with a functional statute with respect to the United Kingdom “or” whether, if United Kingdom be regarded as a ‘foreign country’, to invoke the provisions of the New Zealand’s Extradition Act 1965 by concluding an appropriate treaty. Ultimately, the government of New Zealand enacted the Fugitive Offenders Amendment Act 1976, which amended the 1881 Act.
The aforesaid underlined portion is of utmost importance. After New Zealand became independent State, the Government had to decide whether to regard United Kingdom as a ‘foreign country’ to invoke New Zealand’s Extradition Act 1965 or to have a new functional statute replacing 1881 Fugitive Act. Therefore, the government could choose one and not both.
But India, on the contrary, has enacted two statutes for the same purpose.
Further, under the fugitive act 1976 of New Zealand there are various safeguards available to the accused in sec. 29A –
“29A. (1) Notwithstanding anything in this Act, a fugitive or a person accused of an offence shall not be returned under this Act from New Zealand to another Commonwealth country if the offence in respect of which his return is sought is an offence of a political character.”
“(2) Notwithstanding anything in this Act, fugitive or a person accused of an offence shall not be returned under this Act from New Zealand to another Commonwealth country if – (a) In any case to which Part I of this Act applies, it appears to the Minister of Justice, or to any court before which the fugitive is brought, or to any court or Judge on an application for a writ of habeas corpus; or (b) In any case to which Part II of this Act applies, it appears to any court before which the accused person is brought, or to any court or Judge on an application for a writ of habeas corpus – that – (c) The return of fugitive or accused person, although purporting to have been sought in respect of an offence for which, but for this subsection, he would be liable to be returned, was sought for the purpose of – (i) Prosecuting or punishing him for an offence of a political character; or (ii) Prosecuting or punishing him on account of his race, religion, nationality, or political opinions; or (d) If the fugitive of the accused person is returned, he may be prejudiced at his trial, or punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality, or political opinions.”
But, the FEO Act of 2018 has no safeguards.
Canada
In a case, Germany sought extradition of a Canadian citizen residing in Canada.
Sec. 6(1) of the Canadian Charter of Rights and Freedoms reads – “6(1) Every citizen of Canada has the right to enter, remain in and leave Canada.”
Section 52(1) of the Canadian Constitution reads “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”
Section 1 of the Canadian Charter reads “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
A joint reading of all these provisions, the Chief Justice of the High Court while accepting that extradition is ‘prima facie’ an infringement on the s. 6 mobility rights of a citizen concluded that the Requesting State had established that extradition is a procedure prescribed by law and is a reasonable limitation on one’s guaranteed rights and freedoms which can be demonstrably justified in our society.
In this case, when the Deputy Minister of Justice was questioned about exile and deportation with relation to s.6, the Minister replied as follows: –
“Perhaps I might mention that we do not see Clause 6 as being an absolute right. I will give you an example of a situation where a citizen would, in effect lose his right to remain in the country, that would be by virtue of an order under the Extradition Act; if someone committed an offence in another country and he is sought in this country, he could be surrendered to the other country. The same thing would apply in the case of countries belonging to the Commonwealth to which the Extradition Act does not apply, but the Fugitive Offenders Act does apply. In that situation a Canadian would not have the right to remain in the country by virtue of the offences he might have committed in another country and for which he is sought so that justice could be applied. Under the Extradition Act there is a process to which the person is entitled before that extradition order can in fact be finalised.” The above paragraph clearly shows that a person’s freedom of movement can be restricted only by extradition Act and if extradition Act is not applicable to a certain country (for example commonwealth country as mentioned above) then Fugitive Offenders Act shall apply.
But India, on the contrary, applies both Extradition as well as FEO Act on an individual at the same time.
United Kingdom
Extradition Acts 1870 was in force until it was repealed by Fugitive Offenders Act 1881, which was repealed by Fugitive Offenders Act 1967, which was then repealed by Extradition Act 1989, which was in turn repealed by Extradition Act 2003. Under all these Acts including UK’s Fugitive Offenders Act, an accused/fugitive had in-built safeguards.
Safeguards provided under the then UK’s Fugitive Offenders Act 1967:
“Sec. 4(1) – A person shall not be returned under this Act to a designated Commonwealth country or committed to or kept in custody for the purpose of such return, if it appears to the Secretary of State, to the court of committal or to the High Court … on an application for habeas corpus or for review of the order of committal –
(a) that the offence of which that person is accused or was convicted is an offence of a political character;
(b) that the request for his return (though purporting to be made on account of a relevant offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, or political opinions; or
(c) that he might, if returned, by prejudiced at his trial or punished, detailed or restricted in his personal liberty by reason of his race, religion, nationality, or political opinions.”
In UK, Fugitive Offenders Acts of 1881 & 1967 were used for extradition. Under these Acts extradition was prohibited for political offences. Under the UK’s Extradition Act 1870, the Fugitive Offenders Act 1881, 1967, and the Extradition Act 1989, the Secretary of State possessed a general discretion whether or not to surrender the fugitive to the requesting State.
The Fugitive Offenders Acts enacted by countries from time to time had inbuilt safeguards such as dual criminality, requirement that a prima facie case be made out, the principle of speciality, prohibition on extradition on grounds of race, religion, nationality, or political opinions, prohibition if accused is likely to face prejudice, unjust detention etc but there is no such safeguard available to the accused under the FEO Act of India.
Consider a situation where there is an extradition treaty/arrangement between India and a foreign State. The question of law that needs attention is whether inspite of having an extradition arrangement/treaty containing safeguards, if the government of India sought return of the accused under FEO Act failing which confiscate his properties, will it not amount to denial of justice to the accused by forcing him to abandon his resistance to extradition, who otherwise could have legally resisted extradition. If the accused chooses to resist extradition, his properties are confiscated under the FEO Act and if the accused surrenders under the FEO Act in order to save his properties, he is automatically deprived and abandoned of the legitimate resistance to extradition. Is this not equivalent to forcing an accused to give up one of his two constitutional rights i.e right to equality before law or constitutional right to property? Is this not arbitrary and unreasonable?
Keeping in mind how the Fugitive Offenders Act developed in the western countries and how the foreign courts dealt with the term ‘fugitive’, it is to be seen how fairly, justly, and reasonably the FEO Act is amended and applied especially to the disputes relating to Nirav Modi, Vijay Mallya, Mehul Choksi etc. In my personal opinion, the law as it stands now, is unconstitutional for the reasons stated above.
Adv. Rohan Garg is Partner, Fox Mondal & Co. He is a LL.M (Utrecht University) D-1926/2005
