The Death Penalty Ordinance Only Serves to Worsen India's Extradition Problem

The Freddy Peats case from the early '90s where thousands of children were sexually abused in an orphanage in Goa, and others of travelling sex offenders, acquires fresh significance in light of the recent death penalty ordinance.

In 1991, a Goan orphanage was discovered to be the site of horrific and systemic sexual abuse of young children. Freddy Peats was running an orphanage called Gurukul in Margao in South Goa, from where innumerable pictures were discovered of over two thousand children being abused.

Further investigation led the police to discover a gang of six foreign nationals who would routinely visit Peats’ orphanage and sexually abuse children. They were Zell Jurgen Andreas from Germany, Werner Wulf Ingo, an Australian citizen, Eoghan McBride from New Zealand, Nils Oscar Johnson, a Swedish national, Raymond Varley from Britain and Dominique Sebire from France.

Twenty five years later, in 2014, a British court ruled that Raymond Varley was suffering from dementia and was not fit to be extradited to India for prosecution. Varley had long evaded extradition, first by alleging that the conditions in Indian prisons were harsh and violative of his human rights, in response to which a two-member committee was constituted to inspect Indian prisons, which reported that the conditions were perfectly suitable.

When that did not work, Varley produced a diagnosis of dementia, which was accepted by British courts to determine that as a “vulnerable individual”, Varley could not be extradited. The failure of the Indian state to extradite Varley was only one in a series of failures to extradite foreign sex offenders, or travelling sex offenders as they are often called, to India for prosecution.

Dominique Sebire is now a best-selling author in France under the pen-name Michel Benoit, while little is known of Zell Jurgen Andreas or Nils Oscar Johnson. Out of the six accused, Eoghan McBride chose to face trial in India, faced seven years’ imprisonment and is now back in New Zealand, and Werner Wulf Ingo was successfully extradited and imprisoned for ten years.

Evading justice

The Freddy Peats case, and others of travelling sex offenders, acquires fresh significance in light of the recent ordinance passed by the Centre prescribing death penalty persons convicted of sexually abusing girls below the age of twelve. This ordinance forecloses any possibility of extraditing foreigners who have sexually abused young children in India. This is because most extradition treaties commonly impose restrictions on extraditions in cases where the death penalty may be imposed.

For example, all of India’s extradition treaties contain clauses imposing restrictions on extradition for capital offenses. This is true and applied even by countries which themselves use the death penalty. Countries routinely refuse extradition requests for offenses which carry the capital punishment n the requesting country. Alternatively, extradition requests are granted only on the undertaking that the requesting country not impose capital punishment.

For example, in 2003, Gabe Watson, an American national, who was accused of murdering his wife Tina Watson, was extradited from Australia, where the murder took place, to Alabama, only on the condition that the Alabama courts would not impose the death penalty on him. Closer home, Abu Salem’s extradition from Portugal to India was made on the basis of an agreement that India would not impose capital punishment. Portugal is a member of the European Union, and the death penalty was abolished in the European Union under Article 4 of the European Charter of Human Rights (ECHR). In 2017, the Special TADA court in Mumbai gave Abu Salem life imprisonment for his role in the 1993 Mumbai, in comparison to Yakub Memon, who received death penalty for his role in the same blasts.

It should be noted that travelling sex offenders are not exceptional cases. India has seen multiple cases of travelling sex offenders evading justice, including Jonathan Robinson, Wilhelm and Marie Marti, Paul Meekin, Mathieu Furic, Matthew Patrick, and Duncan Grant and Alan Waters, of whom only Grant and Waters were extradited and prosecuted.

Multiple factors – including the fact that most travelling sex offenders are often bear enormous racial and economic privilege, and they specifically target vulnerable children who may find it difficult to complain – contribute to poor prosecution in such cases. Now that the ministry of women and child development has said that similar amendments are being sought for boys as well, the possibility of extradition of foreigners is further imperilled.

What the government seems to have forgotten in its hurry to administer swift justice is that the death penalty is possible only when there is a prosecution and subsequent conviction. Given the enormous impediments to both, especially when the offender is a foreigner, imposing the death penalty can only ensure that offenders abuse and run away, leaving survivors scrambling for a semblance of justice.

Darshana Mitra is a lawyer and researcher at the Alternative Law Forum, Bangalore.