Under International law, extradition[i] is a formal, diplomatic process by which one state requests another to effect the return of custody of a fugitive criminal[ii] for crimes punishable by the laws of the requesting State and committed outside the jurisdiction of the country where such person has taken refuge. International extradition[iii] is an obligation undertaken by States in good faith to promote and execute justice[iv].
The first formal act providing for extradition was adopted in 1833 by Belgium, which also passed the first law on the right to asylum. Extradition Acts not only specify extraditable crimes, but also detail procedures and safeguards whilst defining the relationship between the Act and the treaty.
Some states allow extradition requests in cases where they have exchanged declaration of reciprocity with the requesting States. Although there has been a practice of refusing extradition requests in the absence of a binding international obligation between the states, often fugitives are surrendered on the basis of municipal law or as an act of good faith by the State parties. However, the uncertainty implies that non-party States to extradition treaties may be a safe haven for fugitives.
The process of extradition is subject to two factors: existence of a binding extradition agreement and the municipal laws of the country from which the extradition is being requested.
Procedure Under the (Indian) Extradition Act, 1962 (Act)
The Government of India presently has bilateral Extradition Treaties with forty-two countries and Extradition Arrangements with nine more countries to quicken and ease the process of extradition. In India, the extradition of a fugitive from India to a foreign country or vice-versa is governed by the provisions of the Indian Extradition Act, 1962[v]. The basis of extradition could be a treaty between India and a foreign country and in absence of a treaty, an arrangement for extradition. Under Section 3 of the Act, a notification could be issued by the Government of India extending the provisions of the Act to the country/ countries notified.
The legal basis for Extradition with States with whom India does not have an Extradition Treaty (non-Treaty States) is provided by Section 3(4) of the Indian Extradition Act, 1962, which states that the Central Government may, by notified order, treat any convention to which India and a foreign state are parties, as an Extradition Treaty made by India with that foreign state providing for extradition in respect of the offences specified in that Convention. India is also a party to the 1997 International Convention for the Suppression of Terrorist Bombings. This also provides a legal basis for Extradition in Terror Crimes.[vi]
In May 2011, the Indian Government ratified two UN Conventions – the United Nations Convention against Corruption (UNCAC) and the United Nations Convention against Transnational Organised Crime (UNCTOC) and its three protocols.
Where there exists an Extradition Treaty between the concerned countries, the extradition request has to be in terms of the specific requirements therein. In terms of the Comprehensive Guidelines for Investigation Abroad and Issue of Letters Rogatory (LRs) issued by the Ministry of Home Affairs, extradition requests are made only after the filing of a charge sheet, cognisance of the same and issuance of an arrest warrant. If the accused is to be arrested and produced in the courts of India, the requisite action is through the extradition process.
Thus, after the Investigative Agency has filed the charge sheet, if the Magistrate takes cognisance of the same, issuing orders/directions justifying the committal of the accused to trial and seeking the presence of the accused to face trial, the request for extradition would be made to the Ministry of External Affairs. In passing such a warrant for the apprehension of the accused, the Magistrate will be governed by the considerations indicated hereinabove.
The request is in the form of a self-contained affidavit by the Magistrate, making out a prima facie case against the accused. To make out a prima facie case, the affidavit is required to provide brief facts and a history of the case with reference to the statements of witnesses and relevant documentary evidence, provisions of law invoked and the description of the accused, establishing his identity. It is necessary to specify the offences for which the accused is charged and the provisions of law indicating the maximum sentence thereof.
The extradition request must contain an order of the Magistrate justifying the accused person’s committal to trial on the basis of the evidence made available in the charge-sheet, with directions seeking to secure the presence of the accused in Court to stand trial in the said court from the country of present stay, along with a copy of the First Information Report (FIR) duly counter-signed by the competent judicial authority. Such request must be accompanied by an original and open-dated warrant of arrest stating clearly the offences for which the accused has been charged and that the Court has taken cognisance of the said sections.
An alleged offender may not be extradited to the requesting State in the absence of a treaty. The States are not obligated to extradite aliens/nationals, or where the crime is not identified as an extraditable offence in the treaty. Extradition may be denied for purely military and political offences. Terrorist offences and violent crimes are excluded from the definition of political offences for the purposes of extradition treaties. In cases where dual criminality exists, where the conduct constituting the offence amounts to a criminal offence in both the requesting country and the foreign country, the offence may be tried in either country depending on factors such as territory where the offence was committed as well as the nationality of the accused.
Extradition may be denied where due procedure under the Extradition Act of 1962 is not followed.
Extradition Treaty Between India & UK
According to Article 1 of the Extradition Treaty between India and the UK, it is the duty of India and the UK to extradite any person being accused or convicted of an extradition offence committed within the territory of one State either before or after the entry into force of this Treaty. Each contracting state shall afford each other mutual assistance in criminal matters[vii].
An extradition offence is defined as one that is punishable under the laws of both the contracting States by a term of imprisonment for a period of at least one year, excluding offences of political character but including offences wholly related to fiscal character or serious offences like murder, causing explosion, terrorism etc.
The request for extradition could be refused if the person is being tried for the extradition offence in the courts of the requested State or if the accused satisfies that the prosecution in the requested State is unjust, oppressive, prejudiced, or discriminatory.
Where the request is for a person already convicted, then a certificate of conviction is necessary. In urgent cases, the person may be provisionally arrested by the requested State till his extradition request is processed. However, he may be set at liberty after the expiration of 60 days from the date of arrest if his extradition request has not been received. Once a person is extradited to the requesting State, he can only be prosecuted for the offence requested, any lesser offence or any offence consented to by the requested State within a period of 45 days.
Extradition may be refused for an offence involving the capital punishment in the requesting State whereby no death penalty is given in the requested State for the same offence. After extradition is granted, the requested State shall surrender the accused at an indicated point, or the requesting State shall remove the person from the territory within one month or as specified.
Part II of the article will discuss the extradition treaties between India and the US, India and UAE. It further elaborates on the practice of non-extradition of own nationals and various issues that may be faced by States whilst processing a request for extradition.
[i] Oppenheim defines Extradition as “delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed or to have convicted of a crime, by the State on whose territory the alleged criminal happens to be for the time” LFL Oppenheim, Oppenheim’s International Law, seventh edn, p 631.
[ii] The earliest known extradition treaty was negotiated in 13 BC, between the Egyptian Pharaoh Ramesses II with Hattusili III, the Hittite King. As per the treaty, both monarchs swore to the other to extradite political fugitives back to their home country.
[iii] The law of extradition is a subject matter of international law, which is deeply rooted in municipal law. The role the obligation to extradite or prosecute plays in supporting international cooperation to fight impunity was recognised by Hugo Grotius (a Dutch jurist who laid the foundations for international law), who postulated the principle of aut dedere aut punire (either extradite or punish): “When appealed to, a State should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal.” Hugo Grotius, De Jure Belli ac Pacis, Book II, chapter XXI, section IV (English translation by Francis W. Kelsey (Oxford/London: Clarendon Press/Humphrey Milford, 1925), pp. 527–529 at 527).
[iv] General Assembly resolution 45/116, Model Treaty on Extradition, A/RES/45/116 (14 December 1990), available from https://www.unodc.org/documents/treaties/model_treaty_extradition.pdf.
[v] The Extradition Act 1962 provides India’s legislative basis for extradition. The Indian Extradition Act, 1962 was substantially modified in 1993 by Act 66 of 1993. Section 2(d) of Extradition Act 1962 defines an ‘Extradition Treaty’ as a Treaty, Agreement or Arrangement made by India with a Foreign State, relating to the Extradition of fugitive criminals and includes any treaty, agreement or arrangement relating to the Extradition of fugitive criminals made before the 15th day of August 1947, which extends to and is binding on, India. Extradition treaties are traditionally bilateral in character.
[vii] Extradition Treaty between the Government of the Republic of India and the Government of the United Kingdom of Great Britain and Northern Ireland, signed September 22, 1992, ratified November 15th, 1993.