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]Â 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.
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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.
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.
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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.
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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.
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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.
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- 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.
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- Principle of proportionality between offence and sentence :Â 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.
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- 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.
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- 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 :
- 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);
- prosecution of the offence is time barred in the foreign state;
- he/she is accused of any offence in India other than the offence for
which the extradition is sought;
- he/she is undergoing sentence under any conviction in India;
- until expiration of 15 days from the date of his being committed to
prison by magistrate (post inquiry u/s 5 of the Act)
Conclusion
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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