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
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.
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
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
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'.
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:
- attempts to commit
- 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
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
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
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
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
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
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
- 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.
- 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
- Extradition procedures are highly time-consuming due to the requirement
of various paperwork.
- 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:
- If the offence committed or alleged to have been committed by him is
- If the offence committed or alleged to have been committed by him is
time-barred as per the requesting state's laws;
- 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
- If he has been accused of any offence in India not being the one for
which extradition is sought; and
- Until after fifteen days from the date of his being committed to prison
by the magistrate.
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
- 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.
- 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
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.
- 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,
- 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
- 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.
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
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
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.
- Public Interest Litigation and Human Rights by Prof. H.O Agarwal