The Hindu : Beyond the law

Online edition of India's National Newspaper
Sunday, Dec 15, 2002

Opinion

Opinion - News Analysis

Beyond the law

Overground and abroad, these men are an embarrassment to a Government that claims to be tough on crime and tougher on terror. Anjali Mody on the extradition fiascos.

THE GOVERNMENT let the nation believe when Abu Salem was arrested in Lisbon in September that his return to India would be a simple and swift operation. Two and a half months later they are telling anyone who cares to listen that extraditions are complicated things and could take years. One would have thought that long experience of failing to reel in the jet-setting criminal class would have made both the Government and investigative agencies more cautious in their pronouncements. The CBI has a list of 121 individuals for whom Interpol red corner notices have been issued and a much longer one of "wanted persons". In such circumstances, a sighting of a wanted man is good, an arrest, however short, even better.

High profile, high value criminals are hot property. Overground and abroad, these men are an embarrassment to a Government that claims to be tough on crime and tougher on terror. Being able to bring back a criminal, and one connected with a major act of terror, to stand trial would be a triumph for any Government. And it seems just the suggestion of that possibility is also the suggestion of triumph.

No wonder then that the Deputy Prime Minister, L.K. Advani, personally kept the media updated on how the Portuguese Government was dealing with the Abu Salem case, and more recently while campaigning for the Gujarat election, announced his hope that the Government of the UAE would assist in swiftly "deporting" Anees Ibrahim to India and that a CBI team had been despatched post haste to assist them to assist us.

Speedy despatches of CBI teams have never achieved much. You would imagine that since Anees has been "wanted" for well over ten years, the case for his extradition would be as convincing as it could ever get. In fact, the CBI has already had one shot at this, in 1996. In the six years since Anees was permitted by the UAE to continue to go in and out like a free man, it is to be hoped that the CBI's case against him is a little more substantial.

An extradition case has to be responsive to the requirements of the laws of the country from which the extradition is sought. And India seems to have a problem with this. A problem that is compounded by the fact that extradition is a complicated business as it is, since the laws of no two countries are identical. And what a successful extradition case has to do is to establish, under the laws of the country from which the fugitive is sought, that there is a prima facie case against him/her. Crucially, it must also prove that there is nothing political about it. India, has some 11 outstanding extradition requests pending. There are, however, 52 extradition requests that India has received from other countries which are still to proceed.

In the case of Ottavio Quattrocchi, one of the problems apparently was that India did not list its charges against him. The CBI Director, P.C. Sharma, is quoted in the press saying that this was because Indian legal procedure did not permit framing of charges except in the presence of the accused. Legal experts, however, said that this was just an "excuse, for public consumption". It is the police which file a charge-sheet of offences for which they have prima facie evidence and a court which frames charges on this basis.

Extradition cases have failed most often because they did not meet the legal standards of the country from which extradition was sought. One such case is that of Nadeem Akhtar Saifi, music director, one half of the Nadeem-Shravan duo. He was wanted by the Mumbai police in connection with the murder of the music moghul, Gulshan Kumar. A case in which one of his co-accused was the underworld don currently in a Lisbon jail, Abu Salem. At the end of a trial, that lasted almost two years, the court in London refused permission to extradite. The court said that it was "satisfied that it would not be fair and would be unjust to return the applicant to India because of the appearance of misbehaviour by the police in pursuing their inquiries". The court took the view that documents in the case had been fabricated and there had been a deliberate and calculated attempt to make it appear that the case against Nadeem was stronger than it was and that it did not believe he would receive a fair trial.

In high profile cases, which are the only ones that make the press, there is considerable pressure on the investigating agency to deliver. And, it seems, as was the case with Nadeem, that they resort to short cuts that are par for the course in India. The Additional Solicitor General, K.K. Sud, who has dealt with numerous cases of extradition requests from other countries says that India's lack of success in extradition cases is because "the law is not satisfactory and neither is the processing". He said that the manner in which extradition cases were put together showed a marked lack of seriousness among investigators and legal counsel for India. He said that very often there was no proper effort to scrutinise the material pertaining to the case. The trouble also was, he said, that quite often the Government of India did not use lawyers who specialised in extradition.

But even in cases where requests have been accepted and the extradition trial should have been fairly simple there have been tremendous delays caused by the inabilities of the investigating agencies. It took over 10 years to extradite Ranjit Singh Gill also known as Kuki of the Bhindranwale Tiger Force of Khalistan. Gill is alleged to be the main assailant in the murder of the Youth Congress leader, Lalit Maken, and his wife, Geetanjali. The primary reason for the delay was the inefficiency of the investigating agency. Sima Gulati, the lawyer in New Delhi who was consulted by Gill's U.S. lawyers during the extradition trial, said "delays were primarily caused by the police not filing their papers on time". She said that the trial was adjourned on numerous occasions because the lawyers acting for India did not have the papers. Often they could not produce the proper documents: "They were unable even to produce the depositions made in the Indian court of prosecution witnesses against Gill". Gill's trial is still under way, more than three years after he was brought back.

Whether he is convicted or not remains an open question. And there have been cases where the extradited person has stood trial in India and been acquitted. Daya Singh Lahoria of the Khalistan Liberation Front was extradited from the U.S. in 1997 for his alleged part in car bomb explosion outside a Youth Congress office, in which nine persons were killed and many injured, including the then Youth Congress president, M.S. Bitta. Lahoria's trial took almost five years at the end of which he was acquitted because his complicity could not be proved. In fact the confessional statement of his co-accused Devinderpal Singh (who received a death sentence) which formed the basis of his extradition was considered inadmissible evidence under TADA.

More interestingly Lahoria appealed to the Supreme Court challenging his prosecution in other cases which did not form part of his extradition proceedings in the U.S. The Supreme Court ruled in his favour stating that an Indian Court could try an extradited fugitive only for the offence mentioned in the court order of the extraditing country. In short, even if the Government of India successfully extradited a criminal for his part in an act of terror, should the court acquit him, he would be free, and no court in the land could try him for any other offences. So while the CBI talks up the crimes for which Anees or Salem are wanted in India, if and when they do get them, it would be interesting to see if their extradition case covers the full complement.

Printer friendly page
Send this article to Friends by E-Mail

Opinion

Stories in this Section

Beyond the law

Outlaws Inc.

The terrible twenty