This article has been written by Jayant Singh, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction

What happens to a person who is accused of or convicted of a crime in one country but is currently residing in or has escaped to another country? Will he not be tried in a court of law where he has committed or has been alleged to have committed an offence? Or how will this situation be dealt with? How can he be brought to justice? Well, to deal with such issues, we have the concept or process of extradition. In this article, we will see in detail about what extradition is,  what the procedure is for it, who can file for it, if there are any prerequisites or essentials for successful extradition, how much time it takes, if it is a time-consuming process, etc. Let’s get started!

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What is extradition

Extradition is the process in which a person accused or convicted of committing an offence is transferred from the country where he might be at that moment to the country where he has been accused or convicted of committing a criminal offence. He/she undergoes the trial or serves the punishment, whichever is applicable as per the situation.

As defined by 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 to be for the time”.

The Hon’ble Supreme Court of India defines 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 state.

For E.g.- ‘A’ commits the offence of murder against ‘B’ in country ‘Y’ and escapes to country ‘Z’ to avoid arrest, then in this situation, country ‘Y’ will formally request the country ‘Z’ to detain ‘A’ and send or bring him back to country ‘Y’.

Of course, there are some essentials for extradition, which we’ll see in this article.

What are the prerequisites or essentials for an extradition to take place

Some essential conditions for extradition to take place are:

  • Extradition treaty: An extradition treaty is a pact between two nations stating the conditions under which they will extradite criminals to one another. Not all nations have extradition agreements in place with one another.
  • Clear case: The requesting country must provide the asking country with sufficient proof that the person sought has committed a crime that qualifies for extradition in accordance with the treaty.
  • Double criminality: Both the requesting and the requested countries must have laws against the crime for which the person is sought.
  • Fair trial: The country making the request must guarantee the sought-after person a fair trial. 
  • Political refugee: A person who has left their nation due to their political ideas or actions is referred to as a political refugee. As there is a risk that these people would face persecution if extradited back to their home country, many nations have laws that forbid the extradition of political refugees.
  • Death penalty: Though contentious, the death sentence is nonetheless used in some nations. Many nations have abolished the capital penalty, and they may decline to extradite anyone who would be put to death in the receiving nation.

What is an extradition treaty

An extradition treaty is an agreement between two countries laying down the conditions for extradition, i.e., mainly the offences for which any individual may be extradited.

There are two types of extradition treaties. The most common kind of extradition treaty is a list treaty. They identify particular offences for which a person may be extradited from one nation to another. As an illustration, a treaty between the US and Canada would list extraditable offences, including drug trafficking, rape, and murder. The US can ask Canada to extradite a suspect to the US so they can prosecute them if they are charged with one of these offences in the US and then flee to Canada.

A dual criminality treaty is another kind of treaty under which the extradition of a criminal suspect is allowed only if the offence committed by him/her is punishable by imprisonment for more than a year in both countries involved. The offences for which extradition is being sought are not specifically listed; rather, they must constitute crimes in both the country making the request and the one where the suspect is located. If the US and Canada have a dual criminality treaty, for instance, and someone is charged with murder in the US, the US may ask Canada to extradite the suspect even though murder is not particularly mentioned in the treaty. To be eligible for extradition, the murder still needs to be a crime in Canada.

An extradition treaty is a treaty that is made between India and any country and relates to the extradition of fugitive criminals. Any treaty or agreement regarding the same that was made before August 15, 1947, that applies and is binding on India is also included in the definition of an extradition treaty. As per Section 2(d) of the Indian Extradition Act, 1962, no country has an extradition treaty with all the countries in the world, ex: India does not have an extradition treaty with China. India has extradition treaties with 48 countries.

What are extradition arrangements

An extradition arrangement is an agreement that is made between the country requesting the extradition of a person and the country that will grant the extradition upon the request. It is agreed upon in this arrangement that the extradition of a person from a country shall take place according to the local laws of that country itself and international regulations instead of the local laws of the country that is requesting the extradition.

A requesting state is one that requests the extradition of an accused or convicted person or where the accused or convicted person is to be extradited. A territorial state is the one from which the accused or convicted person is to be extradited.

India has extradition arrangements with 12 countries. These are as follows:

  1. Sweden – 1963
  2. Tanzania – 1966  
  3. Singapore – 1972
  4. Sri Lanka – 1978
  5. Papua New Guinea – 1978
  6. Fiji – 1979
  7. Antigua & Barbuda – 2001
  8. Italy – 2003
  9. Croatia – 2011
  10.  Peru – 2011
  11. Armenia – 2019
  12. New Zealand – 2021

What if there is no extradition treaty or arrangement between India and the other country involved

When there is no extradition treaty or arrangement between India and the other country that is involved, then any convention to which these two countries are parties can be treated as an extradition treaty between the said countries by the Central Government, which provides for the extradition in respect of the offences mentioned in that convention.

For instance, India has extradition agreements with Italy and Croatia because these countries are signatories to the 1988 UN Convention against illicit traffic in narcotics, drugs, and psychotropic substances. Extradition under these agreements is limited to crimes covered by this Convention, such as the illicit trafficking of narcotics, drugs, and psychotropic substances.

Additionally, extradition might be possible in cases where the international agreement allows for it. For instance, India was successful in getting the extradition of the wanted felon from Portugal back to India in the case of Abu Salem Abdul Qayoom Ansari, who was charged with the 1993 Bombay terrorist bombings. Despite the lack of an extradition agreement between Portugal and India at the time, India requested extradition on the grounds of reciprocity under international law, particularly the International Convention for the Suppression of Terrorist Bombings, to which Portugal and India are both signatories. When the state parties to the Convention do not make extradition dependent on the existence of a treaty, the Convention allows for extradition for a number of extraditable offences. 

Extradition offences

Criminal litigation

Extradition offences are defined as:

  • The offences that are mentioned in the extradition treaty (in case of countries having such treaty).
  • The offences for which the punishment is at least one year of imprisonment under the laws of any of the countries involved (in case there is no treaty).
  • Any offence that is committed either wholly or partly in India or any other country involved and that will amount to an extradition offence in India is said to be a composite offence.

Who can request an extradition

As per the Indian Extradition Act, a requisition for the surrender of an accused or a person who is convicted of committing an offence and is currently in a foreign country may be made by the Central Government through diplomatic channels.

An overview of the Extradition Act, 1962

In India, the Extradition Act, 1962, is the law that lays down the process of extradition in different situations, like when an accused is to be extradited to India from foreign countries or when an accused is to be extradited from India to foreign countries. The procedures in the Act are applicable when there is an extradition treaty or arrangement between India and other countries. The Act imposes some restrictions on the surrender of the accused or convicted person (Section 31 of the Extradition Act, 1962). The Act also talks about how the apprehended person is to be dealt with (Section 17 of the Extradition Act, 1962). Such a person can also apply for bail in accordance with the provisions of the Code of Criminal Procedure, 1973, if he/she is apprehended or detained under the Extradition Act, 1962 (Section 25 of the Extradition Act, 1962). Further, this Act states that everything discovered to be in the possession of the accused or convicted person at the moment of his capture that would be relevant to proving the extradition offence may be delivered up with that person on his surrender or return, subject to any rights that third parties may have with regard to it (Section 28 of the Extradition Act, 1962). It is also mentioned in the Act that the Central Government has the power to discharge or release any such accused or convicted person under certain conditions. These conditions are as follows: 

  • The case against the said person is of trivial nature. 
  • The application for extradition of such a person is not made in good faith, in the interests of justice or for political reasons. 
  • It is unjust to surrender or return such a person. (Section 29 of the Extradition Act, 1962)

There is no restriction imposed explicitly by the Act on the extradition of Indian nationals to a country requesting their extradition but the bar on extradition differs from one treaty to another.  

It is clearly mentioned under Section 33 of the Extradition Act, 1962, that nothing in this act shall affect the Foreigners Act, 1946.

Procedure for extradition from India to a foreign state

The process for the extradition of an accused or convicted person from India is initiated when the country requesting the extradition sends a formal request with supporting evidence through proper diplomatic channels to the Consular, Passport and Visa division of the Ministry of External Affairs, Government of India. The government, after the request has been received, requires the magistrate of extradition (generally a 1st Class Magistrate) to issue an arrest warrant. The magistrate, on the basis of the evidence presented before him, issues an arrest warrant if he concludes that:

  • The identity of the accused or convicted person has been ascertained.
  • The person accused or convicted of being talked about can be extradited.
  • The crime that is committed or alleged to have been committed is extraditable.

After the arrest of the said person, he/she undergoes a judicial inquiry, the report of which is then submitted to the government. If satisfied, a warrant for the custody and removal of the said accused or convicted person may be issued by the government. The said person is then sent to the country, requesting his extradition, with the time and place being in accordance with the warrant. 

Procedure for extradition from a foreign state to India

The process of extradition of an accused or convicted person is initiated by a juridically competent magistrate sending a request to the Consular, Passport and Visa division of the Ministry of External Affairs, Government of India, when there is a prima facie case against the said accused or convicted person. A request and an open dated arrest warrant are also sent by the magistrate.

The request is then formally sent to the territorial state (the country from which an individual is to be extradited) through diplomatic channels and then it is forwarded to an inquiry magistrate, who ascertains:

  • The identity of the said person.
  • Whether the offence was committed or said to have been committed is extraditable.
  • Whether the said person (accused or convict) is extraditable.

After the above process, the Inquiry Magistrate of the other country (territorial state) may issue a warrant for the arrest of the accused or convicted person. The arrest of the said person is then intimated to the CPV/ Indian Embassy. Then the concerned officer from India travels to that country and escorts the accused or convicted person back to India.

Is it a time-consuming process

Now comes the main question of this article: whether the extradition process is time consuming or not. The answer to this question is yes. The extradition process is highly time consuming as it requires various paperwork to be done. Sometimes the process might get delayed due to errors/discrepancies in any document submitted. It may take extra time to solve the errors causing delays in the process. Also, the lawyers of the accused or convicted person may try to delay the process by raising arguments again and again.

In the case of India, one major problem is that India has extradition treaties or agreements with a limited number of countries.

Some examples regarding delays in the process

Vijay Mallya case

 Vijay Mallya was the owner of the now-defunct Kingfisher Airlines. He is charged with missing payments on loans to a group of banks totaling over Rs. 9,000 crore. He left India in 2016 and is currently in the United Kingdom. Although the Indian government has been attempting to return him there for prosecution, the process has been slowed down by legal issues. The Indian government informed the Supreme Court in 2021 that while it is taking all necessary measures to extradite Mallya, the procedure is taking longer than expected because of the legal complications surrounding the situation. The matter is marked as confidential, and its resolution was required in order for the procedure to move forward.

Nirav Modi case

In 2022, the extradition of Nirav Modi to India was delayed as his lawyer raised new arguments to delay the process. It was also argued that there was a risk of him committing suicide if he were extradited to India from the United Kingdom. Nirav Modi, a diamond merchant, is accused by India of swindling PNB (Punjab National Bank) of approximately Rs. 6498 crores through his companies, as well as laundering the proceeds of that fraud and of interference with evidence and witnesses. He fled India in 2018. He is currently in the United Kingdom.

Mehul Choksi case

Fugitive Mehul Choksi has been bribing corrupt government officials, judges, police officers and law enforcement agents to delay the extradition proceedings. He is to be extradited from Antigua and Barbuda to India. He is wanted in India in connection with Rs. 13000 crore fraud in PNB (Punjab National Bank). He fled India in 2018.

The above examples show the different scenarios that can cause delays in the extradition process, thereby making it more time consuming than it needs to be.

Some challenges resulting in a delay in the extradition proceedings are:

  • The principle of dual criminality states that if an act should be an offence in both countries involved, then only extradition can happen. The accused or convicted persons usually flee to countries where the act done by them is not considered an offence. This complicates the extradition process and causes delay.
  • The accused or convicted persons who are involved in or connected to politics often cite this as an excuse to avoid extradition because many countries refuse to extradite such persons. These people are known as political offenders.

Is it mandatory to grant extradition

No, it is not mandatory to grant extradition. Extradition is not usually granted for:

  • Offences relating to politics.
  • Nationals of the other country (from which the person is to be extradited)
  • Offences punishable by the death penalty
  • Double jeopardy
  • Where there is a chance of discrimination on the basis of race, religion or nationality.

Political considerations and extradition

Extradition is not solely a legal matter; it is also influenced by political considerations. Governments may weigh the potential diplomatic implications of surrendering an individual to another country. Political asylum, public opinion, and the perceived fairness of the legal system in the requesting state can all influence the decision-making process. In high-profile cases, the political ramifications may lead to delays as authorities carefully navigate the intricate balance between legal obligations and diplomatic concerns.

Human rights and extradition

Respect for human rights is a critical aspect of extradition proceedings. Many jurisdictions, as well as international law, prohibit the extradition of individuals to countries where they may face torture, cruel or inhuman treatment, or the death penalty. As a result, extradition requests often involve meticulous assessments of the human rights situation in the requesting state. These considerations can lead to prolonged legal battles and appeals, further contributing to the time-consuming nature of the extradition process.

Extradition and the role of Interpol

Interpol, the International Criminal Police Organisation, plays a crucial role in facilitating international cooperation in law enforcement. While Interpol itself does not have the authority to arrest or extradite individuals, it issues notices (such as Red Notices) to alert member countries about individuals wanted for extradition. The reliance on Interpol adds an additional layer of bureaucracy to the process, potentially contributing to delays.

Dual Criminality Principle

Many extradition treaties are based on the principle of dual criminality, meaning that the alleged offence must be a crime in both the requesting and requested states. Establishing dual criminality requires a careful examination of the legal definitions and elements of the alleged crime in each jurisdiction. The need to align these definitions can lead to time-consuming legal arguments and debates during extradition proceedings.

Is extradition good or bad

The question of whether extradition is good or bad is complex and depends on various factors, including the context, the legal systems involved, and the specific circumstances of each case. Here are some arguments for both sides:

Arguments in favour of extradition

Ensuring accountability: Extradition allows individuals accused or convicted of crimes to be held accountable for their actions, irrespective of where they may have committed the offence. This is crucial for maintaining a just and fair global legal system.

Deterrence: The existence of extradition treaties and the possibility of facing justice in another country can serve as deterrents for individuals contemplating engaging in criminal activities across borders. It sends the message that fleeing to another jurisdiction does not guarantee escape from legal consequences.

International cooperation: Extradition fosters international cooperation in law enforcement. It is a mechanism through which countries can collaborate to combat transnational crime, terrorism, and other offences that cross national borders.

Human rights protections: Extradition treaties often include provisions that safeguard human rights, preventing individuals from being extradited to countries where they may face torture, inhumane treatment, or unfair legal processes.

Arguments against extradition

Abuse of process: In some cases, extradition may be used for political purposes, leading to the persecution of individuals based on their political beliefs or affiliations. This raises concerns about the abuse of the extradition process for non-criminal motives.

Divergent legal systems: The differences in legal systems and standards of justice between countries can pose challenges to ensuring a fair trial for the accused. Extradition may be seen as unfair if the individual faces a legal system that does not adhere to internationally recognised human rights standards.

Risk of injustice: There is a risk that individuals extradited to another country may face unfair treatment, including biassed judicial systems, a lack of due process, or discriminatory practices. This risk is especially pronounced in cases where there are significant disparities in legal standards.

Complex and time-consuming: As discussed in the previous article, the extradition process can be complex and time-consuming, involving legal, diplomatic, and political considerations. Delays in the process may impact the rights and well-being of the individuals involved.

Conclusion

Extradition is a great tool to deal with absconded criminals trying to evade arrest or punishment. If done timely, it can save a lot of time, but often that’s not the case. Extradition is a highly time-consuming process due to various factors, as discussed above. For a successful extradition, it is advisable to have an extradition treaty in place. An extradition treaty or arrangement makes the entire process clear and straightforward but the involvement of so many formalities and the delay in completing these formalities make it a very time-consuming process. Everything related to extradition has been laid down in the Indian Extradition Act, 1962, to avoid confusion.

References

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