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Extradition: The right of requesting state

A person who committed or allegedly committed an offence is usually tried in the country where it is committed or allegedly committed. However, what happens when the person flees such a country to evade facing the trial? Or, what if a convict runs from the territory of such a nation to escape the conviction?

In such cases, the country from which the convict or accused fled officially requests the country to which fled to return him. The process of returning the convict or accused to the nation he escaped from is called extradition to another State after committing a crime in his State because of the development of technology in air traffic. Extradition is the official process whereby one nation or State surrenders a suspected or convicted criminal to another nation or state. Between nations, State's Extradition is regulated by treaties. Extradition Comes to an end when asylum Starts.

The Extradition Law could be treated as a dual law as it is enriched from both national and international law separately. The decision to extradite a fugitive is determined by the national court of the territorial state at the same time it could be treated as a part of International Law because the decision made by the territorial state directly influences the relationship between two or more states.

With the development of air traffic cases of the person escaping to another state after committing a crime started occurring more. A state can't punish a person who has committed a crime elsewhere because of lack of jurisdiction and there such persons are surrendered to the state where they have committed the crime. The surrender of an accused or convict is referred to as extradition. The surrender of a person is opposite to the traditional practice of the states to grant asylum. Thus, in those cases where the tradition of granting asylum is not followed, it is known as extradition.

Extradition

The term 'extradition' denotes the process whereby under a concluded treaty one State surrenders to any other State at its request, a person accused or convicted of a criminal offence committed against the law of the requesting State, such requesting State is competent to try the alleged offender.

In Extradition, there are two States involved, the territorial State for example – State, where an accused or convicted, is found and to whom the request is made. And another state is requesting State, for example, a State where the crime has been committed. The request is made normally through the diplomatic channel.

Definition of Extradition
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:
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."

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."

As defined by the Hon'ble Supreme Court of India, 'Extradition is 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 State'.

Extradition Offence

Section 2(c) defines Extradition Offence as:
  • The offence provided in the extradition treaty with the foreign states; (concerning treaty states)
  • An offence is punishable with imprisonment not less than one year under India Law or the law of a foreign state. (non-treaty states)
  • Composite offence - offence committed wholly or partly 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.

The Philosophy Behind Extradition

The concept of extradition is based on the contention that an accused or convict can be tried or punished with utmost efficacy at the place where the cause of action arose or the crime took place. This is because it is much more advantageous to prosecute the offender in the country where he committed the offence; for instance, procuring the relevant evidence is more convenient in the country where the offence was committed than in any other country. Also, such a country has a significant amount of interest in punishing the offender.

Moreover, the concept of state sovereignty kicks in while dealing with extradition. State sovereignty refers to the ultimate authority of the concerned state over its citizens and territorial jurisdiction. So, technically speaking, no state is required or bound to hand over to another state any person (either its citizen or a non-citizen) currently present within its territorial jurisdiction.

However, the mutual interests of both the territorial state and the requesting state for the maintenance of law and order and the administration of justice require that the nations should cooperate in returning the accused person or convict to the requesting state. Hence, to avoid the clash between state sovereignty and the administration of justice, most states enter into various treaties governing extradition. Also, various countries incorporate provisions for extradition in their penal codes.

As far as India is concerned, the Indian Penal Code, of 1860 does not explicitly mention extradition but implies it in the Sections related to jurisdiction. The Extradition Act, of 1962 explicitly deals with it.

Purpose Of Extradition

An accused or convict is extradited by the territorial state to the requesting state for the following purposes:
To prevent escape from punishment - Most fugitive convicts or accused persons run from the competent jurisdiction to other countries hoping to escape from the impending punishment for the offence they are convicted or accused of. Such unjustifiably motivated accused persons or convicts should be extradited so that their offences may not go unpunished.

Extradition as a deterrence- Every successful extradition acts as a red flag to the criminals intending or planning to flee from the territory of the juridically competent state. So, extradition has a deterrent effect on criminals.

To maintain peace in the territorial state- If the convicts or accused persons are not extradited by the territorial state, it will send a wrong message to the criminals intending or planning to escape from the territorial clutches of the juridically competent state. If the territorial state refuses to extradite the convicts or accused persons residing within its territory, it will further motivate more such persons to flee into it. Thus, such a country may end up becoming a haven for international criminals, ultimately threatening the safety and peace within its territory.

To reciprocate diplomatic kindness- Extradition is also one of the best ways to reciprocate the diplomatic support of the requesting state. It welds diplomatic ties between the territorial and requesting states.

To enhance international cooperation- Extradition through bilateral or multilateral treaties on the extradition act is an example of international cooperation in international dispute resolution.

Evidence- The state on whose territory the crime has been committed is in a better position to try the offender because the evidence is more freely available in that state only.

Importance Of Extradition

Contemporary society with all its technological developments has become a playing field for criminal activities. Easier transportation and communication are aiding criminals to easily

flee from the jurisdictional clutches of victim states. This increase the importance of extradition treaty/arrangements

Sovereign constraint: Since the sovereign constraints stop the victim state from effectively exercising its jurisdiction, extradition alone offers the legal avenue to overcome the jurisdictional hardship.

To provide justice and grievance redressal: Bringing back offenders from foreign countries is essential for providing timely justice and grievance redressal.
Provides a sense of gratification: Punishment of the criminal in the same country in which the crime is committed provides a sense of gratification and security to the public of that country.

Act as deterrence: It serves as a deterrent against offenders who consider escape as an easy way to subvert India's justice system.
International cooperation: Extradition is a step towards the achievement of international cooperation in general required for solving international problems of a social character.


Extradition Is Usually Not Granted For

  • Political Offences
  • For Nationals Of The Requested Country;
  • Offences Where The Death Penalty May Be Imposed;
  • Double Jeopardy;
  • Where There Could Be Actual Or Potential Discrimination On Account Of Religion, Race And Nationality

Procedure For Extradition In India

Procedure for extradition from India- The process for the extradition of a fugitive criminal from India begins when the requesting state sends a request along with relevant evidence through diplomatic channels to the Consular, Passport and Visa (CPV) Division of the Ministry of External Affairs (MEA), Government of India (GOI). Upon receiving it, the GOI requires the Magistrate of Extradition (usually a Magistrate of First Class) to issue an arrest warrant.

The Magistrate issues the arrest warrant on the conclusion of the following aspects, based on the evidence put forth before him: a) Establishment of the fugitive criminal's identity; b) That the fugitive criminal is extraditable; and c) That the crime committed or alleged to have been committed is extraditable.

Upon the arrest, the fugitive criminal undergoes judicial inquiry, the report of which is submitted to the GOI. If satisfied by the report, the GOI may issue a warrant for the custody and removal of the fugitive criminal. He is then delivered to the requesting State at the place specified in the warrant.

Procedure for extradition to India- The process for the extradition of a fugitive criminal to India from the territorial state begins when the juridically competent Magistrate in India sends a request to the CPV Division of MEA, GOI, upon the prima facie establishment of a case against the fugitive criminal. The Magistrate sends the request along with relevant evidence and an open-dated arrest warrant.

The request is then formally sent to the territorial state through diplomatic channels, from where it is forwarded to an Inquiry Magistrate. Such a Magistrate will ascertain: a) The identity of the fugitive criminal; b) Whether the offence committed or alleged to have been committed is extraditable; c) Whether the fugitive criminal is extraditable.

Upon such determination, the Inquiry Magistrate in the territorial state issues a warrant to arrest the fugitive criminal. His arrest is intimated to the CPV/ Indian Embassy. Finally, concerned Indian law enforcement personnel travel to the territorial state to escort the fugitive criminal back to India.

Principles Of Extradition

There are generally four principles of extradition, as explained below:

Double criminality: Double criminality refers to the characterization of the relator's criminal conduct in so far as it constitutes an offence under the laws of the two respective states. The general rule is that the offence in respect of which extradition is requested must be an extraditable offence not only under the law of the requesting state but also under the law of the requested state. Hence, if any action is considered a crime the state reqrequeststradition if it is not a crime in the country of refuge extradition is not granted. ExampFor exaEisler'sleEisler casin e 1939 the fugitive Eisler was convicted of being a member of CPUSA but managed to flee and reach the UK. He was arrested and produced trial rail at the English magistrate, held to be released on the ground that the offence for which he was convicted in the USA was not recognized as a crime in the UK.

Extraditable offence: The very first requirement for a successful extradition is that the offence committed must be extraditable. Extradition is a procedure appropriate only for More serious offences and accordingly, the national extradition law of most States limits the number of extraditable offences either to certain specific offences or to offences subject to a specified level of punishment.

Double Jeopardy: The most basic understanding of double jeopardy is that it refers to prosecuting a person more than once for the same offence. Once you are acquitted or convicted of a specific instance of violating the law, however, you cannot be prosecuted (or punished again, if convicted) on that same charge by the same government for that same instance of violating that law. A notable example is Guy Paul Morin, who was wrongfully convicted in his second trial after the acquittal in his first trial was vacated by the Supreme Court of Canada.

Rule of Speciality: This doctrine is premised on the assumption that whenever a state uses its formal processes to surrender a person to another state for a specific charge, the requesting state shall carry out its intended purpose of prosecuting or punishing the offender only for the offence for which the requested state conceded extradition. The doctrine of speciality was developed to protect the requested country from abuse of its discretionary act of extradition. A fugitive criminal can not be tried for a crime other than the crime for which he was extradited, however, if he escapes and is rearrested, he can be tried for other offences too.

Rule of Reciprocity: Reciprocity is one of the legal basis for extradition in the absence of a treaty which is a part of international principles of friendly cooperation amongst nations. Reciprocity, as a substantive requirement of extradition (whether based on a treaty or not), arises concerning various specific aspects of the process.

Extradition of nationals: In principle, any individual, whether he is a national of the requesting State, of the requested State, or a third State, may be extradited. Many States, however, never extradite one of their nationals to a foreign State Does it mean the offender goes unpunished? The answer is negative. In such a case the requested party has to initiate criminal prosecution against any such person for the same offence according to its laws.

Political or Military Character: There is an important principle in international law that the political criminal shall not be extradited. For example, in Re Meunier's case in which the accused was an anarchist and was charged with causing two explosions in a para café and two barracks. After committing the offence, he fled to England. France demanded his extradition. The accused contended that the nature of his crime was political and therefore could not be extradited. The practice of non-extradition for political crimes began with the French Revolution of 1789. It is also a restriction on the scope of extradition. Military criminals shall also not be extradited who have not been charged with war crimes

Extradition Under Indian Laws

In British India, extradition was regulated by the United Kingdom's Extradition Act (1870), followed by the Extradition Act (1903). Presently, the Extradition Act (1962) (hereinafter referred to as 'the Act) regulates extradition in India.

The Extradition Act (1962)
The Act provides for the extradition of fugitive criminals both from and to India. The extradition may take place by any extradition treaty with the requesting or territorial state. However, the Act also provides that, in the absence of any such treaty, any Convention to which India and such requesting or territorial state are parties can be treated as the extradition treaty. (Section 3)

The Act imposes no explicit restriction on the extradition of Indian nationals to the requesting State; however, the bar on extradition varies from treaty to treaty.

Currently, India has extradition treaties in force with the following 48 countries like Egypt, Brazil, Iran, Nepal, Russia, Poland, etc.

Further, currently, India has extradition arrangements with 12 countries. Extradition arrangements refer to the agreements between the requesting and territorial states, wherein it is agreed that the extradition will take place as per the local laws of the territorial state and international regulations instead of the local laws of the requesting state.

Currently, India has extradition arrangements in force with the following 48 countries like Sri Lanka, New Zealand, Italy, Peru, Sweden, Singapore, etc

Challenges In Extradition Law

The following are some of the challenges in extradition law
  1. The requirement of double criminality is often misused by fugitive criminals. They usually flee to a country where their act does not constitute an offence.
  2. Most fugitive offenders who are connected to politics in some way use it as an excuse to escape extradition, as most countries avoid extradition of political offenders.
  3. Extradition procedures are highly time-consuming due to the requirement of various paperwork.
  4. As far as India is concerned, one of the major challenges is that India has extradition treaties with only a limited number of countries.

Restrictions On Surrender Under Indian Law

As per Section 31 of the Act, the fugitive criminal shall not be surrendered:
  1. If the offence committed or alleged to have been committed by him is political
  2. If the offence committed or alleged to have been committed by him is time-barred as per the requesting state's laws;
  3. If no provision exists in the extradition treaty or arrangement stating that he shall not be tried for any offence other than for which he is extradited;
  4. If he has been accused of any offence in India not being the one for which extradition is sought; and
  5. Until after fifteen days from the date of his being committed to prison by the magistrate.

Asylum

Asylum is when a country gives protection to individuals who are being prosecuted by another sovereign authority. Most of the time, it is their government. While everyone has the right to seek asylum, asylum seekers do not have the right to receive it. It must be noted that asylum deals with refugees (individuals who are being prosecuted by their government).

Article 14 of the Universal Declaration of Human Rights
Article 14 of the Universal Declaration of Human Rights recognises the right of individuals to seek protection from prosecutions of sovereign authorities. Everyone can go to another country and seek asylum. This right is also available for fugitives who have committed political crimes. But this is subject to the condition that if your crime is against the principles of the UN, then you do not have the right to asylum. It also must be noted that one has the right to seek asylum but you do not have the right to receive asylum. The idea of Asylum remains that of personal immunity from the authoritative steps of a decision maker than that of jurisdictional authority under whose power it falls.

There are mainly two forms of Asylum
  1. Territorial Asylum:
    It is granted in the territorial boundary of a state providing asylum. Every sovereign state has the right to control and maintain jurisdiction on its territory, hence the decision to extradite someone or give them asylum is totally under its discretion. Thus a state has territorial sovereignty over all its subjects and aliens. This form of asylum is mainly given to people who have been accused of political offences like sedition, treason, and espionage in their home country. Territorial asylum is based mainly on the national law of the sovereign.
     
  2. Extra-territorial Asylum:
    This form of asylum is usually granted by a state beyond its state territory and usually at places which are not a part of its physical territory. In such cases, a state providing asylum in its embassy established in a foreign state is called Diplomatic Asylum. Asylum may also be granted to asylees in Warships because they are exempted from the jurisdiction of the foreign state in whose water it is operating. Such warships are under the patronage of the Flag state. The same is not the case with merchant's vessels as they are not immune to the provisions of international law. Hence, Extra-territorial Asylum is based on the framework of International Law Conventions.

Correlation Between Extradition And Asylum

Extradition is mainly the surrendering of a fugitive by one state to another with the intention of criminal prosecution. This is a way of providing legal assistance between two sovereign states based on some bilateral treaty or ad hoc agreement. Asylum, on the other hand, is about offering protection to those at risk of the legal framework operating in their home country. It is at times said that asylum ends where extradition initiates. Both of them are not identical and have procedural and functional differences which have evolved with time.

Extradition aims at securing criminal justice and denying haven to fugitives leading to a stable transnational criminal cooperation between the sovereign states. Whereas Asylum seeks to provide a safe and secure living for individuals on the run from their home country to avoid political persecution.

Granting asylum is clearly distinguished from the order to refuse extradition even though the two can be intertwined at times because there can arise two possibilities where a person's extradition might be sought when they are an asylee or they may apply for asylum at a time when they are being asked to extradite by their home country.

Any extradition request made to a state for an asylum seeker must comply with the principle of non-refoulment in International law enshrined under article 33 of the 1951 Geneva Convention.

The decision to extradite is left with the judicial authorities and the issue of asylum is dealt with by the executive decision on practical and political grounds most of the time. These concepts are conflicting in nature and are not mirror images of one another which strive for their different goals and ideals. A request for asylum cannot be considered if there is an extradition case pending and the court of law, would not hear an extradition case against an individual granted asylum in their country.

Case Laws
  1. Vijay Mallaya's case
    The case of Mr Vijay Mallaya, the business tycoon and owner of Kingfisher Airlines and United Breweries Holdings Ltd., is arguably the most well-known extradition case in India (Dr Vijay Mallya v. State Bank Of India (2018)). He owed a whopping debt of over ₹6,000 crores to 17 Indian banks including the State Bank of India and the Indian Overseas Bank. Fearing an impending arrest, Mallaya fled from India to the United Kingdom in 2016.

    His extradition was sought by India in 2017. Mallya's extradition case was laid before the Westminster Magistrate's Court in London. In 2018, the Court ordered his extradition to India. His appeal at the High Court in London was rejected; however, he has not been brought back to India yet due to ongoing legal procedures. It's also worth noting that in 2019, he was declared a 'Fugitive Economic Offender' under the Fugitive Economic Offenders Act, 2018.
     
  2. Nirav Modi's case
    Mr Nirav Modi was a luxury diamond jewellery merchant. In 2018, the Punjab National Bank (PNB) filed a complaint before the Central Bureau of Investigation (CBI), alleging Nirav, along with his wife Mrs Ami Modi, of fraudulently obtaining fake Letters of Understanding (LoU) worth ₹11,400 crores. The money was then channelised to his fifteen overseas sham companies. Following a CBI probe, the Enforcement Directorate (ED) confiscated Nirav's assets in India. He fled India and sought asylum in the United Kingdom. Interpol issued a Red Corner Notice against him in 2018. Following an extradition request from India, a Westminster Court issued an arrest warrant against Nirav. The Court ordered his extradition to India in 2021.
     
  3. The Ravi Pujari Case:
    Ravi Pujari was a popular gangster in the early 2000s who was known for threatening eminent personalities in the film and real estate industries. He was wanted by officials on counts of murder of Mr Kukreja, a popular builder and on an attempt to murder charges by Mr Suresh Wadhwa.

    Mr Pujari fled India and remained a fugitive in numerous countries such as Australia, The United Arab Emirates, Burkina Faso and Senegal. His threat calls to a Kerala MLA traced his location to Senegal, where he lived under the alias of Anthony Fernandez.

    The fact that India had extradition arrangements with Senegal allowed Mr Pujari to be extradited to Bangalore in the subsequent days.
     
Conclusion
Extradition happens to be an important tool in ensuring law and justice today. However, the irregularity in its application between nations poses a threat to the principles of justice. However, it is essential to ensure a balance between extradition law and the rights of an individual. It can be understood that this field is a work in progress as the customary nature of this law vis a vis the standing nature of human and individual rights makes the balancing act one of great difficulty.

This essentially means that extradition must at the least be in line with ensuring the basic human rights of an individual. Effectively, every country must comply with extradition requests unless the fugitive has a compelling reason to prevent such action. It is safe to say that the existing international framework undoubtedly increases the effectiveness of law enforcement. But as a caveat, it is essential to ensure the safety of the individual is ensured before the interest of the other country to ensure that extradition is practical both in terms of respect and practice.

An extradition is an essential tool not only to render justice but also to test diplomatic ties. However, the absence of extradition treaties with many countries becomes the loophole that fugitive criminals exploit. There is a need to bring about a comprehensive international law relating to extradition. This lacuna may cause economic or judicial issues in the fugitive's origin country and pose far-fetching implications like security threats in the country where takes refuge.

Extradition is a great step towards international cooperation in the suppression of crime. States should treat extradition as an obligation resulting from 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.

Bibliography:
  • Public Interest Litigation and Human Rights by Prof. H.O Agarwal

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