This article is written by Akshaya Chintala from Symbiosis Law School, Hyderabad. The article is about the legal consequences of waiving extradition in India. 

Introduction 

International extradition is a method of surrendering a person in detention in one country to another country for trial, completing a sentence, or in certain cases for criminal investigation. The Federal Rules of Civil Procedure, Criminal Procedure and Evidence do not apply here, although, where appropriate, specific rules may be adopted by analogy. Similarly, the full range of rights accorded to the accused in criminal proceedings does not apply during the extradition proceedings. Historically, the provisions for extradition between the two nations were based on universal comity principles. Most modern extradition procedures are derived from bilateral or multilateral extradition treaties, substantive international instruments containing an extradition clause, a military surrender agreement, or a fugitive transfer treaty.

Responsibility for supervising the extradition process is shared between the branches of the executive and the judiciary, with the State Secretary acting as the final arbiter on whether or not to extradite an individual. Extradition law has evolved into interpretive doctrines that balance executive and judicial obligations and prerogatives: treaties are to be drawn up in favour of extradition, but the courts have an essential role to play in examining evidence and procedural issues. The document offers a brief description of extradition law, mainly focused on the country’s extradition of fugitives. This defines the reasons for extradition, extradition proceedings, legal problems that might occur, and the relevant aspects of case management.

Extradition

Extradition is the name given to the formal legal process by which persons accused or convicted of a crime are submitted for trial or punishment from one State to another. It is a form of international criminal cooperation which aims to promote justice. Extradition proceedings are very special criminal proceedings. They do not involve the determination of any criminal charges. It is intended to provide assistance in criminal proceedings which have taken place or are yet to take place within the territorial jurisdiction of another state. Extradition is based on the principle that it is in the interests of all civilized communities that offenders should not be allowed to escape justice by crossing national borders and that States should facilitate the punishment of criminal conduct. It is in the public interest for extradition to take place quickly and efficiently.

Generally, extradition shall take place in accordance with bilateral treaties or multilateral conventions concluded by the Sovereign States. These treaties and conventions ordinarily impose an obligation on the requested country to surrender, subject to conditions and exceptions, to the applicant country, a person charged with or convicted of an offence of specific gravity in that country. In exceptional cases, a State may, even without treaty obligations, extradite the use of its sovereign freedom as a matter of country or reciprocity.

Extradition is a conventional process in which a person is handed over from one State to another based on a treaty, a committee, or some bilateral arrangement between the two sovereign States. This request for extradition made by a sovereign State is usually initiated in the first place because the individual requested by the State is charged with a crime but is not tried or tried and convicted, yet the accused has escaped to the territory of the other sovereign State. This process is also known as Rendition, the surrender of a convicted person or accused from one state jurisdiction to another where the accused is alleged to have committed a crime. Extradition aims to ensure that criminals are handed over from one country to another, leading to cooperation between States in the control, prevention, and suppression of international and domestic criminality. According to the norms of the International Law, there is a lack of a contractual obligation on a state to surrender the accused demanded by another foreign state because the law upholds the principle of sovereignty which relates to the State’s right and full authority over itself and its subjects without any interference by foreign bodies. 

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Difference between Extradition and Asylum

Extradition is essentially the transfer by one State of a fugitive to another for criminal prosecution. It is a way of offering legal aid based on a bilateral arrangement or ad hoc agreement between two sovereign states. On the other hand, asylum is about protecting those at risk from the legal system existing in their country of origin. It is also said that where extradition starts asylum ends. They are not the same and have structural and functional variations that have evolved. The purpose of extradition is to ensure criminal justice and deny a fugitive haven leading to effective transnational criminal cooperation between sovereign states. Whereas to escape political repression asylum aims to provide a free and stable life for people on the run from their home countries.

The granting of asylum is distinct from the order to deny extradition even though the two can often be related as there may be two scenarios where extradition of a person could be requested when he or she is an asylum seeker or when he or she is asked to extradite by his or her country of origin. Any extradition request made to a State for an asylum seeker must adhere to the principle of non-refoulement in international law enshrined in Article 33 of the Geneva Convention of 1951. The decision to extradite is left to the courts, and most of the time the asylum question is dealt with by the executive order on practical and political grounds. Such principles are fundamentally contradictory and are not a mirror image of each other aiming for their different goals and values. A request for asylum can not be accepted if an extradition case is pending and the law court will not hear extradition proceedings against a person granted asylum in their country.

Waiving extradition

  1. If the person wants to refuse extradition or contest the procedure, understanding what the results are and the way they’ll impact his or her case is crucial. The particular meaning behind waiving extradition refers to the divesting of keeping constitutional rights and legal protection under the laws in jurisdictional matters involving the removal of the person from one location to a different without some kind of intermediary like a lawyer. When the individual waives extradition, he or she will be able to face a right away transfer to the new area. While a prosecuting lawyer may use a waiver with extradition to produce leniency with the case, others might not give any assistance in possible sentencing with the conviction secured. It’s better to contact a lawyer to be told what this suggests in an exceedingly specific situation. 
  2. When someone commits against the law or is accused of committing any criminal activity in one state or country but lives in another, he or she may face possible extradition with enforcement agencies. One government might have the person to face trial at a unique location with jurisdiction over the criminal proceedings. When enforcement must move the person from one state to the one with jurisdiction, the traditional procedure is extradition. The defendant may waive, or attempt to contest, the proper to combat the matter. A lawyer is usually expected to grant advice and challenge the procedure. However, the tactic is often questioned. within the case where the individual contests it, the governing judge must set a guarantee. The person might seek permission to travel outside the state, then contact enforcement within the other state. A prosecutor will clarify why it’s best to appeal the extradition and try to settle the matter legally by visiting the state with the warrant and withdrawing the case attached to the person as a Fugitive of Justice. This can help the situations under which the accused attempts to settle such matters properly and doesn’t hide from the law. When the offender wants to waive extradition instead of contesting it, the judge may automatically remand the person to the jurisdiction of the opposite state and retain him or her without bail. this might remove the proper to manually resolve such matters. 
  3. The person should still even have the case of the Fugitive of Justice attached and should take more action to require care of that. enforcement and therefore the prosecutor may already consider the person as a flight risk or partly guilty because of the waived extradition and lack of attempts to unravel the warrant and other legal issues. Legal consequences If faced with potential extradition, the person concerned would want to contact an attorney to make a decision which is the most suitable choice in these cases. The prosecutor will clarify what extradition waiving would entail, and the way to contest the procedure and fly personally to the opposite state to settle the warrant and case. An experienced criminal attorney will clarify the risks and benefits of waiving extradition and offer legal advice about what strategy to require. Section 2(d) of Extradition Act 1962 defines an ‘Extradition Treaty’ as a Treaty, Agreement or Arrangement made by India with a far off State, referring to the Extradition of fugitive criminals and includes any treaty, agreement or arrangement referring to the Extradition of fugitive criminals made before the 15th day of August 1947, which extends to and is binding on, India. 
  4. Extradition treaties are traditionally bilateral. The individual that waives his or her right to challenge extradition will lose legal rights and protections in remaining within the area to resolve the matter. He or she’s going to also lose the manual process of clearing his or her name within the charges and therefore the case. There’s a fugitive order that this person can resolve by visiting the state with the warrant for the arrest and therefore the person can resolve that part of the matter first when he or she challenges extradition and succeeds. The individual also can jaunt the state and try and resolve the costs and clear his or her name. If an individual faces charges in another state, they will employ a lawyer for the criminal defence and battle the costs or seek to strike a plea bargaining. The lawyer will assist the client when making a decision on the most effective course, betting on the circumstances of the case. Each extradition treaty sets out the documents required for an interim request for arrest and specifies how an interim request for arrest must be made. The Police/enforcement Agency concerned in India is preparing the request for a brief arrest and sending it to the MEA, which successively will forward the identical through diplomatic channels to the foreign country authority concerned.

Judgments

In the case of Maria Stella Rene v. Police Inspector (2015), the Madras tribunal dismissed the release of a French national who had been arrested by the Indian police in India on the bottom that if she returned to France she would not be extradited to India because the Indo-French extradition treaty barred the extradition of “own nationals.” The Supreme Court of India has held Red Notices to be de facto international arrest warrants in the case of Bhavesh Jayanti Lakhani v. the State of Maharashtra (2009). Given the comprehensive legislative structure and the on-site handling of machinery to extradite persons from abroad to India, only 65 fugitives have been extradited to India since 2002, and it is obvious that the process of surrender is quite cumbersome and slow, sometimes taking years to complete and, in some instances, still failing. Needless to mention, it enables the fugitive criminals accused of offences in India, to evade arrest and prosecution for years on end. 

Conclusion

The extradition procedure is overly cumbersome. to form it easier for States to tell mutual legal assistance treaties, age-old protocols are being checked and sometimes substituted. The balance between administrative ease and also the right of the fugitive is falling heavily in favour of the previous. However, the procedures must be fair to either side and it should be taken into consideration that the entire way of life of the fugitive is full of surrender to an overseas state. 

References

 

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