With so many economic and criminal offenders fleeing India in recent years,
the law of extradition has piqued people's interest. But how does it function?
What is the significance of it? What obstacles do authorities encounter in
bringing a person accused of committing a crime in India back to India? Is it
merely a legal procedure or is it tainted by political pressures?
What is Extradition?
Extradition is the process by which one jurisdiction or country hands over a
person accused or convicted of committing a crime in another jurisdiction to the
law enforcement authorities in that jurisdiction. It is a joint law enforcement
effort between the two countries that is dependent on the agreements reached.
The Extradition Act of 1962 governs extradition in India. Extradition is
followed internationally based on norms such as 1957 European Convention on
Extradition (1964). Military and religious criminals are not subject to
What is the purpose of Extradition?
Every state has competent jurisdiction over the people who live inside its
borders. However, a person may flee to another state after committing a crime.
Due to jurisdictional concerns, the impacted state is rendered useless in this
case. However, this condition is unsatisfactory in terms of law and order, and
it defeats the objective of the law by sheltering the criminal. As a result,
acknowledgment of the principle of extradition is required.
What is the procedure of Extradition?
To begin, the individual who will be extradited must have committed a crime and
fled to another jurisdiction. When the first criteria are completed, the
requesting step begins, in which the original state from which the accused or
convicted individual fled will send a request to the second state to which the
After the second state receives the request, they will begin looking for the
accused or convicted person. The function of the treaty now comes into play; if
one exists, the state that has received the request will begin the search for
the accused or guilty. In the absence of a treaty, the state has the right to
refuse such a request right away.
As a result, after the search for the accused or convicted individual is
completed and the individual is apprehended, the most critical, though the
slowest, step of the extradition procedure begins.[i] The trial by jurisdiction
begins at this point which implies that if a person from India flees to England,
the English court begins the trial and the English court begins to request all
evidence from India, which India must deliver to the seeking state, i.e.,
England, and only on one hundred percent satisfactory with all the shreds of
evidence, the last stage starts which is starting of extradition process and
when it comes to England, the trial by jurisdiction stage is very slow and that
is why India is struggling with them and that is why the majority of Indian
criminals are happily running away to England.
Challenges Faced in Extradition
There are several challenges faced in the process of extradition as extradition
is not a responsibility of a state as per international law as it completely
depends on the treaties signed between the two countries. The sections that
follow look at the many legal and non-legal problems that stymie the effective
repatriation of fugitives from other nations.
Issues arise both within and outside of Extradition Treaties¯
Extradition treaties, in general, follow a uniform structure and establish the
criteria under which a fugitive can be extradited or not. Older bilateral
treaties, such as India's with Belgium (1901), Chile (1897), the Netherlands
(1898), and Switzerland (1880), describe extradition offenses through a "list
system," which includes an extensive list of crimes for which fugitives might be
The dual criminality strategy is more convenient than the list
method since it assures that emerging offenses, such as cybercrime, are properly
recognized in both nations and treaty conditions are not renegotiated. The idea
of "dual criminality," however, is not without its drawbacks. To begin with,
establishing treaty standards for offenses unique to India's socio-cultural
circumstances, such as dowry harassment, is challenging.[ii]
A variety of legal objections can be brought against an extradition order in
court. Extradition is rarely granted for political offenses,¯ for nationals
of the requested country, for offenses that could result in the death penalty,
for offenses that would result in double jeopardy,¯ or for offenses that
could result in actual or potential discrimination based on religion, race, or nationality.[iii]
The double jeopardy¯ rule, which prohibits punishment for
the same conduct twice, is one of the main reasons why India has been unable to
extradite David Headley from the United States.[iv] Headley, an American
terrorist implicated in the Mumbai attacks of 26/11, has already been condemned
to life in jail by US courts for the murder of six Americans.[v]
Extradition orders can also be challenged outside of treaty provisions. Human
rights abuses, such as torture or cruel, inhuman, or degrading treatment, are
usually the basis for these. The importance of the judiciary in domestic
judicial systems, as well as the size of the human rights movement in that
nation, determine the amount to which international courts will investigate
Judicial review of extradition requests
In judicial review of extradition requests, the United States, for example,
normally observes the concept of "non-inquiry," and does not delve into the
conditions or situations that await the sought individual.[vi] European nations,
on the other hand, particularly the United Kingdom, have been more willing to
reject extradition requests based on human rights concerns, such as the risk of
undergoing "torture, cruel, or degrading treatment" at the hands of the seeking
state.[vii] As a result of the strong individual rights movements in European
countries, human rights issues have gained precedence.
Following World War II,
Europe and the United Kingdom established the European Convention on Human
Rights (ECHR) and the European Court of Human Rights to provide a solid system
for the protection of human rights. All member states are required by the ECHR
to defend the human rights and political freedoms of people under their
jurisdiction. When it comes to extradition, India is particularly concerned with
Article 3 of the ECHR, which "prohibits torture, cruel or degrading treatment or
Indian jails serving primarily as places of punishment rather than
Poor jail circumstances were linked with "torture" and "inhuman or humiliating
treatment" in Soering v. United Kingdom, a landmark decision by the European
Court of Human Rights.[ix] As a result, the UK and other EU nations have
frequently refused extradition petitions based on the risk that the individual
sought may be held in India's jails in deplorable circumstances or be subjected
to custodial violence.
Indeed, overpopulation, failing infrastructure, poor
sanitary conditions, and a lack of basic facilities, among other factors, all
contribute to Indian jails serving primarily as places of punishment rather than
rehabilitation. When considering suspected Article 3 violations, frequent
instances of police misbehaviour, such as custodial assault, poor treatment,
arbitrary arrests, torture, and extrajudicial killings, are also considered.
The repatriation of Sikh separatist Karamjit Singh Chahal to India was barred by
the European Court of Human Rights in 1996 due to the likelihood of wrongdoing
by Punjab police personnel.[x] Foreign courts looked at prison guidelines and
independent studies from organisations like Amnesty International, the UK High
Commission, the US Department of State, and the Indian National Human Rights
Commission to come to this conclusion.[xi] Sanjeev Kumar Chawla, an accused
bookie, was denied extradition to the United Kingdom in 2017, citing concerns
that his human rights will be infringed at the Tihar Prison in Delhi.[xii] Although
Sanjeev Kumar Chawla was eventually extradited to India in 2019. Similarly,
owing to human rights concerns and jail circumstances in India, the Netherlands
declined to extradite Neils Holck (alias Kim Davy), who is charged in the
Purulia weapons drops case.
Because UK and European courts are inclined to view bad jail circumstances as a
sort of human rights violation, fugitives frequently cite this as a point of
contention during extradition proceedings. Vijay Mallya's attorneys, for
example, maintained that the deplorable circumstances at Mumbai's Arthur Road
Jail amounted to inhumane and humiliating punishment. In response to Mallya's
lawsuit, the UK court ordered the Indian government to submit a video of Arthur
Road Jail so that the circumstances may be assessed, Mallya has now been
convicted for defrauding Indian banks of INR 90 billion and has also lost his
final appeal against extradition, However, the Indian government was informed in
October 2020 that Mallya could not be extradited at this time owing to an
unnamed "secret legal matter." As a result, India must assess whether these
nations are at risk of becoming "safe havens" for fugitives, considering the
importance of human rights issues.
Law of Speciality
If India is successful in reclaiming custody of a fugitive, treaty requirements
must be followed. The "law of specialty," a key treaty article, states that an
extradited fugitive will only be punished for the crime for which he was
surrendered. For example, after securing Abu Salem's return from Portugal,
Indian authorities filed further accusations against him for his part in the
1993 Mumbai serial attacks.[xiii]
The act was highly panned in Portugal, and the
Supreme Court of Lisbon ruled that India had broken extradition regulations.
Treaty promises must be kept, since they assist to sustain mutual confidence,
collaboration, and reciprocity between countries. Even though Portugal and India
have a bilateral extradition deal, the MEA's revised list of India's extradition
treaties makes no note of it. It is impossible to tell if the pact has been
suspended or repealed without an official notification. The current state of
India's pact with Portugal, however, is uncertain.
In India, there have recently been reports of high-profile fugitives implicated
in economic crimes and financial irregularities. Notable among them are diamond
jeweller Nirav Modi and his uncle Mehul Choksi, who are accused of defrauding
the Punjab National Bank of INR 140 billion. Modi has fled to London, while
Choksi has obtained citizenship in Antigua and Barbuda.
The track record of India in gaining the return of fugitive economic offenders
raises doubts about the speed with which these cases would be settled. The low
number of extradited economic offenders (13 compared to 28 continuing
investigations) can be ascribed in part to the history of extradition treaties
and legal opinion about financial irregularities being classified as a civil
rather than a criminal offence.
In the past, several extradition treaties did
not allow for the surrender of fugitives accused of financial and tax crimes.
The exclusion for fiscal offences was based on the belief that they were not
criminal acts and hence had a lower moral burden. Furthermore, because fiscal
criminals pose no imminent security danger to other countries, there is no need
to rush their extradition and return to the asking state.
In Conclusion, the majority of India's bilateral treaties state that anyone
accused of committing fiscal crimes will be extradited back to India. However,
given that India has only been able to gain the repatriation of 13 economic
offenders since 2002, the chance of Modi and Choksi, as well as other economic
criminals, returning to India is grim.
Reciprocity: A Solution?
The Indian government's pledge that it will extradite fugitives in comparable
circumstances, known as "reciprocity," is a significant diplomatic gesture that
can increase India's extradition success rate. Extradition between non-treaty
nations requires reciprocity as a requirement. Reciprocity, on the other hand,
can play an essential role in the repatriation of fugitives between treaty
In 1993, India requested that Dawood Ibrahim, a prominent underworld don sought
for the 1993 Mumbai serial explosions, be extradited from the UAE. Dubai, on the
other hand, did not reply favourably to India's plea. The UAE claimed that
extradition is based on reciprocity, and that India has been slow to respond to
extradition requests for Indians wanted in Dubai, including Sitharaman, who
embezzled 42 million dirhams (INR 340 million) from a state-owned travel agency,
and Ravji Bhai Pawar, a domestic servant who allegedly assaulted a family in the
UAE. Ibrahim relocated to Karachi in 2015, according to reports, and given
India's lack of extradition treaties with Pakistan, his return to India is
India's extradition ties with the UAE have greatly improved over the years.
According to statistics dating back to 2002,[xiv] India has returned the
greatest number of fugitives from the United Arab Emirates. These figures might
be attributed to the ease with which individuals, and hence fugitives, may
transit between the two nations. After all, there are 2.8 million Indian expats
in the UAE. However, the thawing of bilateral ties between the two nations may
also be to blame for the increase in extradition cooperation. The UAE supported
the US throughout the Cold War and was a close supporter of Pakistan.
conclusion of the Cold War and India's emergence as a key South Asian partner,
the two nations have developed significant connections through energy
cooperation, investment, commerce, and labour mobility. These considerations
have bolstered bilateral ties and aided in the development of improved
With the advantages of globalisation and integration comes the urgent problem of
criminals escaping India. Given the challenges it confronts in securing the
return of these fugitives, India must quickly implement reforms and use
diplomacy to build a more efficient and frictionless extradition system.
- Ned Aughterson, The Extradition Process: An Unreviewable Executive
Discretion¯, Australian Yearbook of International Law 24, (2005): 13.
- Article 3 of the European Convention on Human Rights prohibits torture
and inhuman or degrading treatment or punishment.
- Soering v. United Kingdom, 161 Eur. Ct. H. R. (ser. A) (1989); Also see,
Daniel J. Sharfstein, European Courts, American Rights: Extradition and
Prison Conditions¯, Brooklyn Law Review 67, no. 3, (2002): 745.
- Ved P. Nanda, Bases for Refusing International Extradition Requests “
Capital Punishment and Torture¯, Fordham International Law Journal 23, no. 5,
- Daniel J. Sharfstein, European Courts, American Rights: Extradition and
Prison Conditions¯, Brooklyn Law Review 67, no. 3, (2002): 759.