EXTRADITION

BY- AANCHAL AGARWAL

ANSHIKA KAYASTH
CHARCHIT KHANDELWAL

Extradition, in international law, the process by which one state, upon the request of another,
effects the return of a person for trial for a crime punishable by the laws of the requesting state
and committed outside the state of refuge. Extraditable persons include those charged with a
crime but not yet tried, those tried and convicted who have escaped custody, and those convicted
in absentia. The request distinguishes extradition from other measures—such as banishment,
expulsion, and deportation—which also result in the forcible removal of undesirable persons.
According to the principle of territoriality of criminal law, states do not apply their penal laws to
acts committed outside their boundaries except in the protection of special national interests. In
helping to suppress crime, however, states generally have been willing to cooperate in bringing
fugitives to justice.1

Definition of Extradition2 -
The Extradition may be defined as the surrender of an accused or convicted person by the
State on whose territory is found to the State on whose territory he is alleged to have committed
or to have been convicted of a crime.

Some eminent jurist defines extradition as follows -

i) Lawrence -
Lawrence defines Extradition as "the surrender by one State to another of an
individual who is found within the territory of the former, and is accused of having committed a
crime within the territory of the latter; or who having committed a crime outside the territory of
the latter is one of its subjects and as such by its law amenable to its jurisdiction."

ii) Oppenheim -
According to Oppenheim, "extradition is the delivery of an accused or a convicted
individual to the State on whose territory he is alleged to have committed or to have been
convicted of, a crime by the state on whose territory the alleged criminal happens for the crime to
be."

1
https://www.britannica.com/topic/extradition
2
https://www.srdlawnotes.com/2017/11/extradition-meaning-definition-and.html
Purpose of Extradition
The purpose of extradition is to prevent crimes and to punish the criminals who have escaped
from their punishment and started to reside in another country. As we know it would be easier
for the country to punish the offender where he had committed the offence and it would be easy
to gather evidence against him for that particular offence even if the country is unable to punish
him due to technicalities of law or lack of jurisdiction then he can be taken back to home country
through the process of extradition. Thus the object of the process of extradition is to prevent and
reduce the crimes in the international field. Thus the role of extradition is to prevent crimes and
punish criminals as it is the interest of all countries to punish the criminals and prevent the
crimes because the country in which a person of criminal character resides, it is in the interest of
such country to ensure extradition of such a person but it also depends on bilateral treaty and
upon the principle of reciprocity but where there is no treaty or agreement then the country can
request the other country where the offender is residing to extradite the fugitive or offender and it
is in the interest of security and law and order of such country to extradite the accused.

In view of the increasing crimes in the international field in recent years, the importance and
prevalence of the extradition have increased. In recent years, the provisions relating to
extradition find mention in international treaties. The universal recognition of human rights has
enhanced the prevalence and importance of extradition. International cooperation is most
essential in cases of extradition because there is hardly a country which has an extradition treaty
with all the other countries of the world.

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/arrangements/conventions entered into with various states
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.

It is important to note that even in absence of a treaty, extradition may be permitted if it has the
backing of the principle of reciprocity. (The principle of reciprocity will be discussed in greater
detail a little later in the article) Suffice would it to say here that the primary consideration for
the request of extradition is the assurance of reciprocity. This principle has been upheld in a
number of cases3

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 (apart from the condition of dual
criminality, which will be dealt a little later).

Principle of Reciprocity in exchange of fugitives between requesting and requested State;

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 (however, it may be noted that this refers to
the substance of the offence and not the nomenclature given to it in a specific country, which
may vary). 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 case4 against the fugitive: This is a safety valve to ensure, at-least on
broad probabilities, the existence of a trial 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.

3
Marie-Emmanuelle Verhoeven v. Union of India and Others (2016) 6 SCC 456
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. The possibility of a death sentence to the fugitive by the requesting state usually leads
to the extradition request being turned down or allowed only after an assurance from the
requesting state that death penalty will not be carried out.

Whether the fugitive is seeking asylum from political persecution and trial for an offence of
a political character: This requires an enquiry into whether the accused is likely to suffer
political persecution or death sentence in the requesting country. In such cases extradition is
disallowed. For instance, in the Indian Context, the provision of death penalty in India and
alleged human rights violations in prisons/police torture have proved to be major hurdles in
acceding extradition requests from India to other countries, especially the UK with the European
Commission on Human Rights (ECHR) taking a strict note of the same.5

Possibility of fair trial in requesting state, post surrender - Before an extradition request is
processed, it should be ensured that post-surrender the fugitive will get a fair trial in the
requesting country. However, it may be noted that this entails only a broad examination of
judicial procedures in the requesting state. This principle also needs to be read subject to
the principle of non-inquiry, which stipulates that the judicial process in the requesting country
is not to be subjected to finicky evaluations and fairness of judicial procedure in requesting
country is not to be normally questioned4 However, this is not an absolute principle and the
requested state may question the procedure of the requesting state if the same is prima
facie contrary to fundamental principles of justice and there is a high risk of fugitive being
prejudiced by the process of extradition.5 The apprehension of denial of fair trial has to be
substantiated with cogent material. In a case where a man chose to reside in USA, received his
education and worked there, was not allowed to plead threat or denial of fair trial in US in order
to evade extradition.6 In the context of extradition from UK, issues such as human rights
violations in jails, minority rights, possible political motivation, have weighed heavily with UK
authorities in not acceding to extradition requests made by India.7

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.

4
Schmidt Case(1987) 1 SCR 500
5
Abu Salem Abdul Qayoom Ansari v. State of Maharashtra & Anr. (2011) 11 SCC 214.
6
Kamlesh Babulal Aggarwal v. UOI, 2008 SCC OnLine Del 533.
7
Her Majesty's Knights in Sullied Armour, Bhavna Vij-Aurora, Outlook, November-14, 2016
These are some of the overarching principles cutting across almost all
treaty/convention/agreement obligations with various countries. With these fundamental
concepts in mind, let us proceed to some specifics.

What Is An 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.

Who May Be Extradited?

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;

What about a person abetting/participating in the commission of an offence in a foreign state,

from within the shores of India?

 Such person 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 :

o 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.
Legal Status Of Extradition: From Indian & International Law Perspective

As per the Indian Law, the extradition of an escapee or fugitive from India to another nation or
vice versa is dealt by the rules laid down in the Extradition Act, 1962. This law forms the
legislative basis for extradition in India. The Extradition act deals with two schedules and five
chapters. The Government of India till date has entered into Bilateral Extradition treaties with 42
countries to make the extradition process efficient and hassle-free.

The term Extradition Treaty is defined as per Section 2(d) of the Extradition Act which explains
it as, “a treaty, agreement or arrangement with a foreign state in the relation of extradition of
fugitive criminals”.Apart from this, our country has entered into extradition arrangement with 9
countries as well. Extradition request can be made by India to any country. The countries with
which India has a treaty have the obligation to consider the request due to the treaty between the
two countries.In other cases where there is non-existence of a treaty, the foreign country may or
may not accept the request and may subject it as per their domestic procedure and law.

Hence the obligation for extraditing is due to the treaties and arrangement entered into by India
with other nations. It needs to be understood that an Extradition is a sovereign act and in cases
where there is no treaty and absence of international duty between the two sovereign states, any
sort of extradition activity is dependent upon the ideas of reciprocity and comity which are an
essential part of the International principles of amicable cooperation between states or nations.

As per Section 3 of the Extradition Act, the government can issue a notification to extend the
notifications of the act to the notified countries. The act further defines the ambit of what
Extradition offenses are and who can be extradited as per Section 2(c) and Section 2(f)
respectively.

As per the International Law conventions, a state is not under a binding obligation to surrender a
fugitive to another sovereign state. There is no duty as such imposed by the International law on
the states to extradite. Although there are certain basic principles governing the extradition
process which are accepted and followed by several nations.8

Human Rights and Extradition

Human rights as a bar to extradition can be invoked in relation to the treatment of the individual
in the receiving country, including their trial and sentence as well as the effect on family of the

8
https://www.legalbites.in/extradition-and-asylum/
individual if extradition is granted. The repressive nature and the limitations of freedoms
imposed on an individual is part of the extradition process and is the reason for these exceptions
and the importance that human rights are observed in the extradition process. Therefore, human
rights protected by international and regional agreements may be the basis for denying
extradition requests, but only as independent exceptions.9While human rights concerns can add
to the complexity of extradition cases it is positive as it adds to the legitimacy and
institutionalization of the extradition system.10

Determining whether to allow extradition by the requested state is, among other considerations, a
balancing exercise between the interests of the requesting state's pursuit of justice over the
accused individuals, the requested state's interests in holding dominion over those presently in its
territory, and the rights of the extraditable persons.11 Extradition raises human rights concerns in
determining this balance in relation to the extraditable person. States make provision to
recognize these rights both expressing in bilateral treaty agreements and also, potentially by way
of state's obligations under the Universal Declaration of Human Rights, of which the
International Covenant on Civil and Political Rights is particularly relevant to
extradition.12 Although regional, the European Convention of Human Rights has also been
invoked as a bar to extradition in a number of cases falling within its jurisdiction and decisions
from the European Court of Human Rights have been a useful source of development in this
area.

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

9
Mariana (Mitra) Radu, Cătălina Mititelu (2013) “The Observance of Human Rights and Freedoms in the
Extradition Proceedings at National and International Levels” JDSR 3, 100 at 101
10
Neil Boister, An Introduction to Transnational Criminal Law(OUP, 2012) at 287
11
Director of Public Prosecutions (Cth) and the Republic of Austria v Kainhofer [1995] HCA 35, (1995)
185 CLR 528 at [48] per Gummow J, High Court (Australia).
12
ohnston, P. "The Incorporation of Human Rights Fair Trial Standards into Australian Extradition Law". (2014)
76
lawful return of a fugitive from the territory of a requested state in the absence of an extradition
treaty.13
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 United Arab Emirates, North Korea, Bahrain, and many other countries.14

Conclusion

In the nutshell, we can conclude that the law of extradition is important for maintaining peace
and order in the society and it is also beneficial for punishing the offenders who were trying to
escape from their punishment. 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 internationalisation 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. By this process, they can be called back but
for this, the offence committed by them must also be an offence in the country from where they
are being extradited. This type of treaties promotes harmony and cooperation at international
level. Moreover, there are several of the treaties and conventions did on the international level
for dealing such issues in an easy manner as many of the offenders are unpunished due to the
lack of common law or co-operation with other countries at the international level.

13
Dan E. Stigall, "Ungoverned Spaces, Transnational Crime, and the Prohibition on Extraterritorial Enforcement
Jurisdiction in International Law"
14
Extradition Treaties Interpretation Act of 1998 from the United States Department of State, Extradition Treaties