Cornered by the Red Notice? Here's what you need to know about it in India.
Updated: Apr 16, 2020
One often hears the terms ‘Red Corner Notice’ and ‘INTERPOL’ being used together and most assume that ‘INTERPOL’ stands for International Police and that the ‘Red Corner Notice’ is akin to a warrant of arrest. These terms have come to the fore over the last few years due to the financial scams that seem to have plagued India and the perpetrators fleeing India before the full force of the law could have been brought down upon them. Of course, the reader assumes that once the ‘Red Corner Notice’ has been issued by the ‘INTERPOL’, the concerned perpetrator would be arrested and brought to India and then put in prison. Unfortunately, it is not so easy and that is why it is necessary to understand these two terms viz. ‘Red Corner Notice’ and ‘INTERPOL’ before we delve into the legal position in India.
What is the INTERPOL?
According to its website, the INTERPOL stands for the ‘International Criminal Police Organisation’. It is an inter-governmental organization with 194 member countries. The INTERPOL helps the police in all of its member countries to work together to make the world a safer place. In order to do this, the INTERPOL enables the police of its member countries to share and access data on crimes and criminals, and offer a range of technical and operational support. The General Secretariat coordinates the INTERPOL’s day-to-day activities; run by the Secretary General. It is staffed by both police and civilians and comprises a headquarters in Lyon, a global complex for innovation in Singapore and several satellite offices in different regions.
In each country, an INTERPOL National Central Bureau (NCB) provides the central point of contact for the General Secretariat and other NCBs. An NCB is run by national police officials and usually sits in the government ministry responsible for policing.
Notices Issued by the INTERPOL
Since the INTERPOL website very clearly describes the purpose of the Notices and their categorisation, I reproduce them below from the same.
“INTERPOL Notices are international requests for cooperation or alerts allowing police in member countries to share critical crime-related information. Notices are published by the General Secretariat at the request of a National Central Bureau and are made available to all our member countries.
Notices can also be used by the United Nations, International Criminal Tribunals and the International Criminal Court to seek persons wanted for committing crimes within their jurisdiction, notably genocide, war crimes, and crimes against humanity.
Most Notices are for police use only and are not made available to the public. However, in some cases, for example to alert the public, or to request help from the public, an extract of the Notice can be published on this site. United Nations Special Notices are public.”
Now, most of us have only heard about the ‘Red Corner Notice’, but incidentally, the word ‘corner’ does not appear in the official classification and also, there are other Notices, which are colour coded with each colour representing its own purpose. The list is reproduced hereinbelow from the INTERPOL website.
Red Notice: To seek the location and arrest of wanted persons wanted for prosecution or to serve a sentence.
Yellow Notice: To help locate missing persons, often minors, or to help identify persons who are unable to identify themselves.
Blue Notice: To collect additional information about a person’s identity, location or activities in relation to a crime.
Black Notice: To seek information on unidentified bodies.
Green Notice: To provide warning about a person’s criminal activities, where the person is considered to be a possible threat to public safety.
Orange Notice: To warn of an event, a person, an object or a process representing a serious and imminent threat to public safety.
Purple Notice: To seek or provide information on modus operandi, objects, devices and concealment methods used by criminals.
INTERPOL–United Nations Security Council Special Notice: Issued for groups and individuals who are the targets of UN Security Council Sanctions Committees.
What is a Red Notice?
As we are focussing on the Red Notice in this article, it is necessary to understand how the INTERPOL defines it:
“A Red Notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action.
It contains two main types of information:
Information to identify the wanted person, such as their name, date of birth, nationality, hair and eye colour, photographs and fingerprints if available.
Information related to the crime they are wanted for, which can typically be murder, rape, child abuse or armed robbery.
Red Notices are published by INTERPOL at the request of a member country, and must comply with INTERPOL’s Constitution and Rules. A Red Notice is not an international arrest warrant (emphasis supplied).”
As we can see from the above description, the notices are not issued merely for the asking and the procedure and the necessary criteria must be complied with. The age-old principle that any person is presumed to be innocent until proven guilty is applied in the case of the one against whom the Red Notice has been issued. Therefore, obviously, the issuance of the Red Notice by itself does not prove any guilt or offence. It is however correct that the issuance of the notice has its own consequences of being arrested because many nations treat the notice as an arrest warrant itself, despite the very specific specification by the INTERPOL that the Red Notice is not an international arrest warrant.
Applicability in India
In a Judgement delivered by the Hon’ble Supreme Court of India, reported at (2009) 9 SCC 551, the Supreme Court has clarified the legal position in India with respect to the Red Notices issued by the INTERPOL while also considering the Extradition Act, 1962 and the other relevant provisions of law applicable to facts before it.
The matter before the Supreme Court was that of a Red Notice being issued against a husband, who, despite specific orders of the US Court against him not to remove his child from the custody of the wife, brought the child to India without his wife’s consent. The Judgement states that after obtaining a decree of divorce and the custody of the child from the US court, the ex-wife moved the Indian Court for the custody of the child. Pursuant to that, an arrest warrant was issued against the father of the child, but which was stayed by the High Court. Meanwhile, the US Court also issued an arrest warrant against the father of the child for violation of its order that had granted custody to the mother of the child. Based on this arrest warrant issued by the US Court, the INTERPOL issued a Red Notice, which was then transmitted to the Government of India for further action.
Now, this Red Notice and the arrest warrant of the US Court were both challenged by the child’s father, but he was successful in obtaining any relief. Subsequently, he approached the Supreme Court, which dealt with several issues including - the ramifications of the Red Notice issued by the Interpol, Extradition Treaty between India and USA signed in 1999, the Extradition Act, 1962, the relevant Indian laws, especially the Code of Criminal Procedure, 1973.
The Supreme Court had also appointed an amicus-curiae to assist it in arriving at the final judgement, as the issues involved in the matter required extensive deliberation on several serious issues of law having international implications. A detailed judgment was passed allowing the appeal and the judgment of the Bombay High Court dismissing the challenge of the child’s father to the Red Notice and the arrest warrant of the US Court was set aside. In short, the warrant issued by the US court served through INTERPOL was held not to be executable against the child’s father in India. The judgment dealt with several issues, but we are at present only focussing on the ‘Red Notice’.
The important issue that the Supreme Court of India had to examine was about the consequences of the alleged violation of the order of the US Court resulting into the issuance of the arrest warrant and the subsequent issuance of the Red Notice, which was then served through the INTERPOL on the Government of India. Whether the child’s father was liable to be arrested and deported to USA needed to be determined.
In examining the issue of extradition of the child’s father, the Supreme Court also carefully examined the provisions of the Extradition Act, 1962 and the Extradition Treaty entered into between India and the USA signed in 1999. The Extradition Act and the Treaty between India and USA provide for certain procedures for extradition and the circumstances under which, extradition was permissible.
The Supreme Court concluded that the issuance of the Red Notice is not an end unto itself and does not guarantee an automatic arrest followed by extradition. The local law i.e. the Indian law supersedes the order of the foreign court and the Red Notice. It is not correct to say that the Red Notice cannot be tinkered with by the courts in India. If the any order of a foreign court or any notice such as a Red Notice, violates the Fundamental Rights of an Indian Citizen, he is entitled to a judicial review of the order and/or the notice.
It is important to note that no one can be arrested in India unless –
The alleged offence is also recognised as an offence under the Indian Law, and
The person concerned must be liable to be arrested in India – either under any law relating to extradition, or otherwise.
Only after satisfaction of these two conditions above, can the person be arrested under the order of a foreign court and the Red Notice. At the same time, for the extradition to take place, more importantly, the offence must be an extraditable offence covered under the India-USA treaty or in any other case, the relevant treaty. And of course, the provisions of the Extradition Act must be satisfied, wherein, the request from the foreign Government to arrest any individual is mandatory. In short, there are some very strong checks and balances and safeguards against an arrest of an Indian Citizen on account of the judgment of a foreign court and also on account of the Red Notice (red corner notice).
The issuance of a Red Notice (red corner notice) is not a warrant of arrest by itself and it certainly does not amount to an automatic extradition. However, it does not mean that one can be nonchalant about it. As soon you have knowledge of the Red Notice being issued against you or anyone you know, it is important that you take appropriate legal steps. A legal procedure has been initiated by the issuance of a Red Notice and one has to deal with it appropriately in a timely manner.