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Extradition is an act where one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to their law enforcement. It is a cooperative law enforcement process between the two jurisdictions and depends on the arrangements made between them. Besides the legal aspects of the process, extradition also involves the physical transfer of custody of the person being extradited to the legal authority of the requesting jurisdiction.

Through the extradition process, one sovereign jurisdiction typically makes a formal request to another sovereign jurisdiction ("the requested state"). If the fugitive is found within the territory of the requested state, then the requested state may arrest the fugitive and subject him or her to its extradition process.[2] The extradition procedures to which the fugitive will be subjected are dependent on the law and practice of the requested state.

Between countries, extradition is normally regulated by treaties. Where extradition is compelled by laws, such as among sub-national jurisdictions, the concept may be known more generally as rendition. It is an ancient mechanism, dating back to at least the 13th century BC, when an Egyptian pharaoh, Ramesses II, negotiated an extradition treaty with a Hittite king, Hattusili III.

Extradition treaties or agreements

The consensus in international law is that a state does not have any obligation to surrender an alleged criminal to a foreign state, because one principle of sovereignty is that every state has legal authority over the people within its borders. Such absence of international obligation, and the desire for the right to demand such criminals from other countries, have caused a web of extradition treaties or agreements to evolve. When no applicable extradition agreement is in place, a sovereign may still request the expulsion or lawful return of an individual pursuant to the requested state's domestic law.

This can be accomplished through the immigration laws of the requested state or other facets of the requested state's domestic law. Similarly, the codes of penal procedure in many countries contain provisions allowing for extradition to take place in the absence of an extradition agreement. Sovereigns may, therefore, still request the expulsion or lawful return of a fugitive from the territory of a requested state in the absence of an extradition treaty.

No country in the world has an extradition treaty with all other countries; for example, the United States lacks extradition treaties with China, the Russian Federation, Namibia, the Emirates, North Korea, Bahrain, and many other countries.

  1. Need And Underlying Philosophy of The Law of Extradition:

    # Crime is increasingly turning international. Many serious offences now have cross border implications. Even in cases of traditional crime, criminals frequently cross borders in order to escape prosecution. According to traditional principle of territoriality of Criminal Law, a State will not usually apply its criminal law to acts committed outside its own boundaries. However, there is a growing recognition that states should show solidarity in repression of criminality and co-operate in the international battle against crime. Though States refuse to impose direct criminal sanctions to offences committed abroad (except exceptional situations of extraterritorial jurisdiction), the states are usually willing to cooperate with each other in bringing perpetrators of crime to justice.

    # The device of extradition therefore, evolved under the principle of comity of nations whereby one State surrenders a criminal to the other state for bringing him to justice in country in whose jurisdiction offence was committed. It was realised that trial for a crime ought to be conducted in the vicinity of the crime; this not only enables easy availability of evidence, but a crime punished in the very vicinity of the original offence sends out a strong signal of deterrence and restores societal equilibrium, which the crime had upset.
    # Extradition, therefore, is a means to resolve two apparently conflicting principles - first being that - criminal jurisdiction extends only to offences committed within geographical boundaries; Secondly, the rule that frowns over a crime/criminal going unpunished on account of jurisdictional reasons.

    # The law of extradition attempts to dovetail the competing imperatives of comity of nations (respect for a foreign court) on one hand, and international crime control on the other. It ensures harmonisation of these two principles, while at the same time, guaranteeing due process and protection of basic human rights of fugitives, and protection from persecution, cruel punishment, inhuman treatment and torture. Extradition law seeks to achieve this balance by laying down a procedure that is to be satisfied prior to surrender. These procedures reflect a zealous approach with respect to protection of personal liberty and the right to life. This includes a judicial inquiry by a Magistrate, followed by a decision of the Central Government. There are certain guidelines as to the exercise of this power within the Extradition Act and treaty obligations with specific states.
  2. Indian Extradition Law:

    In India, the extradition of a fugitive from India to a foreign country or vice versa is covered by the provisions of the Extradition Act, 1962 which forms the extant legislative basis for this area of law. The act lays down the first principles of extradition law. The obligation to extradite springs out of treaties/arrangements/conventions entered into by India with other countries. Under Section 3 of the Extradition Act, a notification can be issued by the Government of India extending the provisions of the Act to the countries notified. Therefore, for a comprehensive understanding of the law of Extradition, one has to read the Extradition Act in conjunction with specific treaties.
  3. Extradition Treaty:

    Extradition treaty, as per Section 2(d) of the Extradition Act means 'a treaty, agreement, or arrangement with a foreign state relating to extradition of fugitive criminals. An extradition treaty also spells out the conditions precedent for an extradition. It also includes a list of crimes which are extraditable.

In cases of pre-independence treaties

In Section 9 of the Indian Independence Act, 1947 and Indian Independence (International Arrangements) Order, 1947. It is made clear by these provisions that all international agreements to which India (or more appropriately, British India) was a party would devolve upon the Dominion of India and Dominion of Pakistan and if necessary, the obligations and privileges should be apportioned between them. As far as extradition treaties generally are concerned, the provisions of Section 2(d) of the 1962 Act have been made applicable to all such treaties entered into prior to Independence. These treaties, therefore, bind post-independence India too.

Basic Principles Governing Extradition

  • Principle of relative Seriousness of the offence

    Extradition is usually permissible only for relatively more serious offences, and not for trivial misdemeanours or petty offences. For instance, the extradition treaty between US and India permits extradition only for those offences which are punishable with more than one year of imprisonment.
  • Principle of Dual Criminality:

    This is the most important principle governing Extradition Law. This requires that the offence that the fugitive is alleged to have committed, should be an offence both in the requesting as well as the requested state.

     For instance: In Quattrocchi's case - the request for extradition was declined as the CBI had not filed the requisite documents making out a specific case for extradition and had not satisfied the court as to the basic requirement of 'dual criminality'. To satisfy oneself as to the requirement of dual criminality, one has to examine the treaty between the two countries and see if the offence in question finds mention there.
  • Existence of prima facie case against the fugitive : This is a safety valve to ensure, at-least on broad probabilities, the existence of a triable case against the fugitive. This is sought to be ensured by a magisterial inquiry that is to precede the actual surrender/extradition. If the case lacks merit on the face of it, extradition may be disallowed at the very outset.
  • Principle of proportionality between offence and sentence : Requesting state should respect the principle of proportionality between offence and sentence and punishment for that particular crime should not be excessively harsh or inhuman, in which case extradition request may be declined.
  • Rule of specialty: that is to say, when a fugitive is extradited for a particular crime, he can be tried only for that crime. If the requesting state deems it desirable to try the extradited fugitive for some other offence committed before his extradition, the fugitive has to be brought to the status quo ante, in the sense that he has to be returned first to the State which granted the extradition and fresh extradition has to be requested for the crime for which the fugitive is sought to be prosecuted.

Extradition Offence

Section 2(c) defines Extradition Offence as:-

  • Offence provided in the extradition treaty with the foreign states; (with respect to treaty states)
  • An offence punishable with imprisonment not less than one year under India Law or law of a foreign state. (non treaty states)
  • Composite offence - offence committed wholly, or in part, in India and Foreign State, which would constitute an extradition offence in India.

A fugitive criminal may be extradited. A fugitive criminal as Per S.2(f) is a person who:
Who is accused or convicted of an extradition offence committed within the jurisdiction of a foreign state;

If a person is participating in the commission of an offence in a foreign state from within the shares of India then he is also liable to be extradited and is included within the expansive definition of a 'fugitive criminal'. S.2(f) of the Extradition Act further applies to :
a person who, while in India:

  • conspires,
  • attempts to commit
  • incites
  • participates - as an accomplice in the commission of extradition offence in a foreign state.

Therefore, a person in India, attempting/conspiring/abetting the commission of the offence from within the shores of India, is also covered in the definition of a 'fugitive criminal' and liable to be extradited.

4. Process of Extradition

  • Receipt of Information
    The process of extradition is set into motion by the receipt of Information/Requisition regarding fugitive criminals wanted in foreign countries. This information may be received :-
    Directly from diplomatic channels of the concerned country (along with the necessary information relating to the offence and the fugitive); or
    General Secretariat of ICPO-Interpol in the form of red notices;
    Other settled modes of communication.
  • Magisterial Inquiry
    Where a requisition is received, the Central government may order an enquiry by a magistrate directing him to enquire into the case. The initial inquiry by the Central Government before ordering a magisterial inquiry need not be a detailed one.No pre-decisional hearing is required to be given to the fugitive before ordering magisterial enquiry .The function of the Magistrate under this Section is quasi judicial in nature. The magistrate directed to proceed with the enquiry need not have territorial jurisdiction.

    On receipt of order, the Magistrate shall issue a warrant of arrest of the fugitive criminal;
    Once the fugitive criminal appears, or is brought before Magistrate pursuant to the warrants, the magistrate inquires into the case.

Considerations To Be Kept In Mind By The Central Government While Deciding Question Of Surrender/Extradition And Restrictions On Exercise Of Such Power.
As per Section 31, A fugitive criminal shall not be surrendered or returned if :

  1. the offence complained of by the foreign state, is of a political character, directly, or his requisition/warrant, is made for an apparently non-political offence, merely as subterfuge to infact punish him for an offence of Political Character (Schedule to the Extradition gives a list of offences, which are not to be regarded as offences of a political character for the purposes of the Act);
  2. prosecution of the offence is time barred in the foreign state;
  3. he/she is accused of any offence in India other than the offence for which the extradition is sought;
  4. he/she is undergoing sentence under any conviction in India;
  5. until expiration of 15 days from the date of his being committed to prison by magistrate (post inquiry u/s 5 of the Act)

Extradition is a great step towards international cooperation in the suppression of crime. States should treat extradition as an obligation resulting from the international solidarity in the fight against crime. With the growing internationalization of crime and judicial developments, extradition law is in a state of great flux.

The courts are grappling with myriad issues including:
Interpretation of treaties and arrangements vis-a-vis municipal extradition law, balancing of due process versus principle of adherence to comity of courts, the effect of a red corner notice, the role of international agencies, the interface of powers of deportation with extradition, etc. Jurisprudence in the area of extradition law is evolving at a rapid pace and it is hoped that the Indian Judiciary will match up to global standards and resolve the extremely vexing legal challenges posed to it.

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