18 Sep 2009

CBI cannot extradite Indians based on Interpol notices: Supreme Court

In what can be termed as having ramifications manifold for extradition laws, the Supreme Court has recently delivered this decision interpolating the 'interpretation of the roles and responsibilities of the CBI vis-à-vis the provisions of the Extradition Act, 1962'. 

The facts of this case were really interesting. Mr. B, an Indian citizens went the US, pursued studies there and landed with a job. Got married in India and took his wife along to US. They had a daughter and stayed together for another while. Disputes cropped up and the wife sought asylum in the United States. Later she filed for divorce and custody of her child in a US court, which passed an order in her favour granting the custody of the child. The husband, however, came to India along with the daughter. On the basis of her complaints, warrants were issued for arrest of her husband by the US police authorities.

The wife married another person and thereafter filed a case in India for custody of her daughter. That remaining pending, the US police issued a warrant for arrest of the former husband which was transmitted to India through Interpol. 

The former husband approached the High Court challenging the validity of the extradition process initiated by the CBI on the basis of the red-corner notice issued by the Interpol. The High Court declined to interfere observing that High Court should not set a precedent which could be used to hamper investigation of crimes which have global dimensions and for the investigation of which, Red Corner Notices are critical tool. Thus the matter reached the Supreme Court.

Taking note of the argument made by various parties, the Extradition Treaty between India and US, the Extradition law of India, the Supreme Court noted the following;

>>> "It is beyond any doubt or dispute that no request for extradition has been received by the Government of India. It could act only when a request is received. It is accepted at the Bar that Red Corner Notice by itself cannot be a basis of arrest or transfer of an Indian citizen to a foreign jurisdiction. There is furthermore no dispute that the Act cannot be bypassed in red corner cases concerning Indian citizens. Hence the Extradition Treaty is subject to the provisions of the Act. It also stands admitted that the Appellant being an Indian citizen is entitled to enforcement of his fundamental rights. The legal position that a person cannot be arrested without any authority of law again is not denied or disputed. Thus, the arrest of a person must be effected in terms of the provisions of the Act. A person wanted for an offence in a foreign jurisdiction may be arrested on fulfillment of the following conditions: (i) That the offence should be counted as one by Indian Law as well, and (ii) The person must be liable to be arrested in India – either under any law relating to extradition, or otherwise."

>>> "Article 12 (of the Treaty) provides that provisions of provisional arrest according to which in a case of urgency, the Contracting State may request the provisional arrest of the person sought pending presentation of the request for extradition. It also provides that the facilities of International Criminal Police Organization (Interpol) may be used to transmit such a request. However, when a request for provisional arrest in terms of Article 12 is communicated, it must satisfy the requirement of Section 34B of the Act. Such request from a foreign country must be accompanied by the requisite documents and not a communication from INTERPOL alone. It will bear repetition to state that an arrest can be effected at the instance of the Central Government only when such a request is made by the foreign country and not otherwise."

>>> "We have noticed hereinbefore that the Treaty itself provides that the same is subject to any Municipal Laws of the country. It is thus for the State concerned to take a decision in regard to such notices, keeping in view the Municipal Laws. The steps to deal with the request contained in the notices, thus, must abide by the domestic laws of the concerned country. Recognition of the request as the basis for an arrest operate an internationalization or tans-nationalization of a foreign administrative decision. The formal admission procedure by Interpol cannot be the single cause of internalization. It is just a precondition for the recognition by the other states."

>>> "The organizational system of issuing International notices forms the backbone of (Interpol's) functioning. The Member countries in terms of notices share critical crime related information. They concern individuals wanted for serious crimes, missing persons, unidentified bodies etc. Such notices contain comprehensive identity particulars of the individuals concerned including the physical description, fingerprinting, occupation and all other relevant information including the offence with which the person has been charged, reference to the law under which the charge was made or the conviction was obtained etc. The notices issued by the INTERPOL are of six types – Red Notice ; Yellow Notice ; Blue Notice; Green Notice ; Black Notice and Orange Notice. It also contemplates Interpol-United Nations Special Notice. We are concerned herein only with Red and Yellow Notices. A Red Corner notice is issued to seek the provisional arrest of a wanted person. However, it by itself does not have the effect of warrant of arrest. It is issued for persons, against whom a national or international court has issued a warrant of arrest. It is solely a request of the issuing entity to provisionally or finally arrest the wanted person for extradition. A Yellow notice, however, is issued for finding a missing person or to identify people who are not capable of identifying themselves. It is an “International Missing Person Notice”. It is issued specially to locate minors."

>>> "The notices issued by INTERPOL are not considered as administrative decisions on individual cases with transnational effect. They are not construed as an “international administrative act.” They lack a character of regulation. They do not constitute an international arrest warrant and they are not in any other form binding the individuals concerned legally. They, however, gain de facto with special relevance to the Human Rights through multiplication of its recipients. In fact Interpol's "red notices" often function as de facto international arrest warrants and countries issue warrants immediately upon receipt of such a notice. However, they do so with the understanding that a request for extradition with supporting evidence will follow the red notice, without delay. The suspect must then go through the standard extradition process. The bottom line is that "warrants to arrest suspects must have legal authority in the jurisdiction where the suspect is found" and Interpol red notices do not have such authority. They are primarily a means of facilitating communication between police agencies and the success of the Interpol system still depends entirely upon voluntary cooperation. They, however, do not entirely lack external effects. A number of states recognizes the Red Notices as an official request for the arrest of a person. However, such a request does not require the action of national police authorities and does not provide a legal basis thereto."

>>> "Keeping in view the Constitution of INTERPOL vis-à-vis the Resolutions adopted by the C.B.I. from time to time, although a Red Corner Notice per se does not give status of a warrant of arrest by a competent court. It is merely a request of the issuing authority to keep surveillance on him and provisionally or finally arrest the wanted person for extradition. The provisions of the Act and the Treaty are required to be given effect to. Whenever a request is received from INTERPOL the authority must act on behalf of the Central Government."

Thereon, the Court concluded that "we have already held above that the Municipal Laws of a country reign supreme in matters of Extradition. It is thus for the State concerned to take a decision in regard to such Notices, keeping in view the Municipal Laws of the country. The High Court was, therefore, in our opinion, clearly wrong in holding that a Red Corner Notice should not be tinkered with. When a person complains of a violation of his Fundamental Right and/or otherwise of his fundamental right he is entitled to the right of judicial review. It ought not to be forgotten here that the dispute between the Appellant and the Respondent No. 6, being essentially a Matrimonial dispute, is a private dispute and no criminal extraditable offence can be made out of the same, in the absence of a specific request for extradition. ... A fundamental Right of a citizen whenever infringes, the High Courts having regard to their extraordinary power under Article 226 of the Constitution of India as also keeping in view that access to justice is a human right would not turn them away only because a Red Corner Notice was issued. The Superior Courts in criminal cases, thus are entitled to go into the manner in which such Red Corner Notice, if any, is sought to be enforced and/or whether the local police is threatening a citizen of India with arrest although they are not entitled to do so except in terms of the provisions Act as and when applicable."

On a passing reference, the Court also commented upon the legal status of international treaties in India. It observed, "India follows the doctrine of dualism and not monoism. We may, however, hasten to add that this Court, however, at times for the purpose of interpretation of statute has taken into consideration not only the treaties in which India is a party but also declarations, covenants and resolutions passed in different International Conferences. The Act as also the treaties entered into by and between India and foreign countries are admittedly subject to our municipal law. Enforcement of a treaty is in the hands of the Executive. But such enforcement must conform to the domestic law of the country. Whenever, it is well known, a conflict arises between a treaty and the domestic law or a municipal law, the latter shall prevail."

[Click here to have a look at this comprehensive decision

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