The Hon’ble Supreme Court
of India defined extradition as “the delivery on the part of one State to
another of those whom it is desired to deal with for crimes of which they have
been accused or convicted and are justifiable in the Courts of the other
Extradition requests can be generated in the instances of under-investigation,
under-trial and convicted criminals. Extradition in any country depends on its
extradition policies and its relationships with other countries in the form of
extradition treaties and arrangements.
of the Extradition Act of 1962
The Extradition Act, 1870 of the United
Kingdom enabled extradition of fugitive criminals from and to other countries
outside British dominions and the section 17 clarified that these dominions include
Commonwealth countries like India. While the Fugitive Offenders Act, 1881 of
United Kingdom emphasized on extradition of fugitive criminals from and to countries
within British possessions such as India. The Indian Extradition Act, 1903 that
laid down the procedure to be followed in the country in cases of extradition with
other countries was highly based on the application of the above two British
statutes to India. Furthermore, British India entered into extradition treaties
with many Princely States.
Post-independence the country faced several
problems with regards to extradition. For example, the existence of extradition
treaties between British India and Princely States was questioned and if in the
case they were not operational then what law was going to prevail in these
states. In Dr. Ram Babu Saksena v. The
the court discussed how far the treaty between India and the State of Tonk (one
of the Princely States located in Rajasthan) got affected through the merger of
the state into India. Court eventually held that the treaty must be deemed
On January 26, 1950 as India proclaimed
itself as a sovereign democratic republic the need of extradition treaties with
Princely States vanished and they were considered Part B states. Indian
Extradition Act was made applicable to the entirety of India to the exception
of the Part B states as it was deliberated that this should be enabled by a
separate law after clarifying the position. After the judgment of The State of Madras v. C. G. Menon
which held the Fugitive Offenders Act of 1881 inapplicable in India, there was
a lot of gap felt in the extradition policies. Firstly, extradition process to
Commonwealth countries was not finalized and secondly extradition process from
Part B States to other foreign countries including Commonwealth countries was
again doubtful and unclear. These concerns led the country to develop and work
towards a code and a legislation which tackled the matter of extradition
effectively on a large scale.
The Extradition Act of 1962 was legislated
under these conditions and today it is the primary document that deals with
matters of extradition for India. It consists of five chapters and a Schedule.
Chapter I deals with preliminary matters, chapter II deals with extradition of
fugitive criminals to foreign state with no treaty or arrangement and III deals
with extradition to foreign states with existing treaties and arrangements.
While chapter IV has to do with extradition of accused or convicted persons
from foreign states and chapter V is concerned with miscellaneous matters such
as jurisdiction of offences committed at sea or in air, requisitions from more
than one state etc. The Schedule is concerned with offences which are not to be
regarded as offences of a political character.
The act was substantially amended in 1993.
in Code of Criminal Procedure, 1973
The Code of Criminal Procedure which is the
primary legislation on procedure of administration of substantive criminal law
in India has laid down few sections that guide the respective authorities to
deal with the process of extradition. There are four such sections – 41, 166A,
Section 41(1) of the Code of Criminal
Procedure of 1973 deals with instances when police may arrest any person without
an order from a Magistrate and without a warrant. Sub-section (g) of Section 41
provides that if the police has reasonable grounds and credible information to
believe that an individual has committed an act outside India and that act if
done in India would have been punishable as an offence then police has a right
to detain or arrest such an individual without a warrant.
Section 166A of the Code of Criminal
Procedure of 1973 is concerned with the letter of request to a competent
authority for investigation in a country outside India. The section provides
that if during the course of investigation, the investigating officer believes
that substantial evidence may be available in a country outside India then any
criminal court may issue a letter of
request to a competent authority or a court in that particular country
which is designed to deal with such matters. The request may consist of taking
statements or retrieving documents. The court must follow the Central
Government rules in this behalf and such requests are limited and bound to the
existing treaty, if any, between India and the country concerned.
Section 166B of the Code of Criminal
Procedure of 1973 is concerned with the letter of a request from a country
outside India to a court or an authority for investigation in India. The
section provides that if India receives such a letter from another country for
the purpose of investigation in India which involves production of any document
or examination of a person, then the Central Government may forward the same to
any Chief Judicial Magistrate or Chief Metropolitan Magistrate or some Judicial
or Metropolitan Magistrate as he may appoint in this matter, who in turn would
exercise his discretion and either summon the person for investigation or cause
the document to be brought forward or sent the letter to a police officer who
shall conduct the investigation in the same manner as if the offence was
committed in India. After the investigation is complete, all the statements or
documents will be forwarded to the Central Government who in turn will channel
it to the Court or authority from the other country which issued the letter.
Again, the government has the authority to reject the request as it depends on
this existing relationship in the form of a treaty with the other concerned
Section 188 deals with offences committed
outside India. The section provides that if a person commits an offence,
irrespective of whether he or she is a citizen or not, whether on the high seas
or elsewhere, or on any ship or aircraft registered in India, he or she may be
dealt with it as if the offence occurred within India. The government may
refuse to extradite an offender if he or she has already been tried in India or
may refuse to prosecute an offender if he or she has already been tried in
another country for the same offence.
Treaties and Arrangements
Section 2(d) of the Extradition Act of 1962
defines an “extradition treaty” as a treaty, agreement or arrangement made by
India with a Foreign State, relating to the extradition of fugitive criminals.
Extradition treaties are traditionally bilateral yet most of these embody five
First, the principles of extraditable
offences emphasizes that extradition can be done for only those offences which
are mentioned in the treaty. Second, the principle of dual criminality requires
that the offence for which the extradition is sought shall be an offence under
the legal systems of both the requesting and the requested country. Third, the
requested country must be satisfied that there is a prima facie case made out
against the accused. Fourth, the rule of specialty requires that the extradited
person must be proceeded against the same offence for which he was extradited
in the first place. Lastly, extradited person must be given a fair trial.
India can make an
extradition request to any country while the acceptance of such a request
depends on the existence of a treaty with that particular country. The
countries which have a treaty with India have an obligation to consider our
requests while countries which do not can consider too but it all depends on
their domestic laws and procedures. Similarly,
any country can make an extradition request to India and again India’s
acceptance depends on the existence of a treaty. Section 3(4) of the Indian
Extradition Act, 1962 is the legal basis for extradition with States with whom
India does not have an extradition treaty.
As of today, India has
Extradition Treaties in force with 43 countries. In 2013, India established
extradition treaties with Thailand, Bangladesh and Azerbaijan. India has some
form of Extradition Arrangements too with 11 countries. In 2019, India
established extradition arrangement with Armenia.
Extradition Challenges to India
There are various legal
and non-legal extradition challenges faced by India that create obstacles and
delays to the successful return of fugitive criminals from foreign states.
There are several challenges arising within and without Extradition Treaties
for India and some of them are discussed below.
treaties, like that of Belgium (1901) and Chile (1897) with India, contained an
exhaustive list of offences for which offenders will be extradited but now the “dual
criminality” approach is followed. It essentially requires the offence to be
accepted and criminalized by both nations. Even though it is a more convenient
process and can include even more and newer offences like that of cybercrime,
it poses several challenges for India. Socio-cultural centric offence such as
dowry harassment which is dominant in a country like ours is not considered or
accepted as a serious offence in some other country.
One more principle which
has its pros and cons is “double jeopardy” which debars punishment for the same
crime twice but has been the biggest challenge for India in recent times. David
Headley, the master mind behind the 26/11 Mumbai attacks, has already been
imprisoned in U.S. for killing 6 Americans and hence could not be extradited to
India where he would have been tried for killing nearly 140 Indians.
Another treaty clause
“rule of specialty” has turned out to be detrimental for our country. It
requires that the accused when extradited can only be tried for the offences he
was accused at the time of extradition. When Abu Salem from Portugal returned,
the enforcement agencies framed additional charges which was heavily criticized
by the Supreme Court in Lisbon and termed as violation of extradition rules.
Sometimes the challenges
lie beyond treaty restrictions as that in cases where concerns of human rights
violations are highlighted. For example, United Kingdom has rejected requests
in the past owing to human rights concerns such as that of possibility of
receiving torture, inhuman and degrading treatment. In 1996, the European Court
of Human Rights prohibited the deportation of a Sikh Separatist, Karamjit Singh
Chahal, to India on the possibility of misconduct by Punjab Police. Again, in
2017 British courts rejected extradition of the alleged bookie Sanjeev Kumar
Chawla owing to poor conditions of Delhi’s Tihar Jail. Similarly, Neils Holck,
accused in the Purulia arms drops case, was not extradited by Netherlands to
India due to prison conditions. Now, this human right concern is being misused
by accused fugitives outside India to avoid completion of extraditions. Vijay
Mallya’s lawyers in U.K. courts argued that the condition of Arthur Road Jail,
Mumbai is inhuman and degrading.
economic and fiscal offences in treaties were not considered as criminal
offences and hence not given so much importance by other countries. Thus,
fugitives like Nirav Modi and his uncle Mehul Choksi are free and away from the
hands of our legal system.
Apart from loopholes in
treaties, as one may call them, there are several other factors which slow down
the process of extradition for any country. There are unreasonable procedural
delays due to extensive compulsory documentary and evidentiary requirements and
also the burden of bilateral relations and pressure of domestic politics.
"MEA | List of Extradition Treaties/Arrangements." Ministry of
External Affairs, Government of India. https://www.mea.gov.in/leta.htm.