Extradition Law

Introduction:

It is a social need to punish a person, who fled for another Country/ State after committing an offence. The State, in which the criminal is taking shelter, has to hand over him or extradite him to the State in which he committed the crime. In other words, it is a process of submitting an accused or any person who has felony charges against them. It is also known as Rendition. International law marks lack of any binding obligation on a state to surrender an accused demanded by another foreign country. It depends on the provisions of the treaties which are usually of bi-lateral nature. A state holds complete sovereignty on the matters of extradition and no foreign intervention stands intolerable.

The person extraditable is usually the ones charged with a crime not tried or convicted but has successfully escaped the custody. Extradition is likely to be distinguished from banishment, expulsion and deportation.

The outcome of excess interchange of communication and transportation among nations has led to the emergence of extradition laws. The above point was highlighted in the Supreme Court case of Abu Salem Abdul Qayoom Ansari v. the State of Maharashtra¹.

Definition

• Oppenheim stated extradition as a mere form of delivering an accused to the State where the crime has been committed or the person was convicted by the State.
• Starke mentioned it as a process where under a treaty a State surrenders the accused on request of the other State. The person should be either accrued or convicted of a criminal offence against the law of land of the competent State who holds the right to try the offender.
• Black’s Law Dictionary defined it as a surrender of an individual by one State to another for a crime committed outside its territory but within the territorial jurisdiction of the State which is competent to try and punish the same.

Theory of Extradition

The theory is to maintain peace, order, law and social security. International law stands on the ground to promote a friendly and peaceful environment among its members of the International community. The unfiltered obligation to surrender a criminal was observed in “The Theory of Extradition.” The theory is maintained under the provisions of a treaty among the nations. Any offence of political nature shall not be entertained under the Extradition Law. For “Double Criminality” an offence should be recognized by the National Law of the requesting country as well of the requested country. If the time limit for prosecution in the requested State exceeds, Extradition may be refused.

The principle of “non bis in idem” refuses extradition of a person who has been tried for committing a similar offence. A fair trial can only be determined when a person is tried only for the charges mentioned for extradition. The requested State may cancel the extradition of a person who is likely to be sentenced to death in the other State. Such Extradition will only be granted on presentation of sufficient grounds for such Capital punishment.

Idea Behind Extradition

The fact of increasing globalization has caused for easy access to different countries paving ways to criminals to elope. The theory of Extradition would benefit a Nation as well as the international community at large by suppressing forms of crime by prohibiting criminals from escaping their punishments. It is a form of collective practice to develop peace and co-operation at the International platform.

Public safety is the underdog reason for Extradition to prevail. No country wants to be home to criminals from other countries. Diplomatic crisis and International tension remain out of the picture.

The provision linking to extradition has been found in International Treaties. The universally recognized Human rights have enhanced the pervasiveness and importance of extradition. Extradition would endorse international cooperation, but hardly any country has any implemented treaty regarding it with other countries.

Procedure for Extradition Under Indian Extradition Act, 1962 (Act)

The Extradition of a fugitive from India to another country is ruled under the provisions of the Indian Extradition Act, 1962. In the presence of a treaty between the countries, the provisions are t be followed diligently and in case of no such treaty, a particular arrangement can be sought for Extradition.

Section 3 of the Extradition Act, allows the Government to issue a notification of extension as to the provisions of the Act to countries.

Section 3 (4) of the Extradition Act forms for the legal basis for India and those countries who don’t have an Extradition Treaty. India gets to treat any convention between her and the other countries as an Extradition Treaty, hence providing for Extradition in accordance to the offences specified in that Convention.

For India, the basis for Extradition process can be determined in accordance with the provisions laid under the International Convention of 1997 for the Suppression of Terrorist Bombings. It also provided for Terror Activities.

• According to the Comprehensive Guidelines for Investigation Abroad and Issue of Letters Rogatory, the Home affairs can go ahead to make extradition requests only by filing a charge sheet, cognizance, and issuing an arrest warrant.
• For an accused to be brought in the Indian Court, it should be done in accordance with the Extradition process.
• The Magistrate may take cognizance of the charge sheet filed by the Investigation Agency and proceed with a trial.
• On findings, the Magistrate may give adequate judgment resulting in a fair trial.
• Any sort of request regarding extradition can be made to the Ministry of External Affairs.
• For the magistrate to pass a warrant for apprehension it is to be followed up according to the Act.
• The request can be made by submitting an affidavit to the Magistrate. Thus, resulting in a prima facie case against the accused.
• The Affidavit should consist of statements of witnesses and required evidence in the form of documents according to the provision of laws and the accusation should be described in a detail and most importantly identifying the offender.
• Provisions as to the nature of the offence should be well described demonstrating the maximum punishment for the same.
• The request for Extradition to be maintained the order of the Magistrate, available evidence against him, right for a fair trial, copy of First Information Report duly signed by competent authorities should be submitted.
• Sections pertaining to the offence and warrants should be accompanied with the request to be submitted.
• In the absence of a treaty, an alleged offender may not be extradited to the requesting State. Identification of an extraditable offence is essential.
• In the case of Dual Criminality, the trial of the same can be tried in either of the countries. Nationality of the offender should be an important consideration.
• Any request of Extradition made not in accordance with the Extradition Act of 1962, remains denied.

In The State of Madras v C.G Menon², it was held by the Supreme Court that Extradition is governed by a treaty other than a few exceptional cases.

Extradition process involves two states- Territorial State and Requesting State, completely different process from detrimental and forceful removal. It is under the complete executive discretion to ask for extradition in case of no treaty obligation. In case of an existing bilateral treaty, the State is bound to follow the terms demarcated in it. Judicial bodies and various practices in a State make for the extradition legislation and treaty.

State Practice to Extradite

Whether to extradite a person or not clearly depends upon the laws in practice in a State. There are certain States which doesn’t allow the give in of their nationals, while others allow it. France and Italy don’t allow extradition while the United Kingdom and the United States of America allow extradition. The latter follows the principle of the State on whose territory a crime has been committed is in competency to try the offender as the evidence are more available there and the state’s interest also remains intact by providing the accurate amount of punishment to the offender and thus ascertaining the truth. No general duty pertaining to Extradition is established under International Law.

In Factor v. Laubenheinmer³, it was determined that no International Law recognizes the rule to Extradition. The government of a State can at its discretion exercises its power to give in an escapee to the country from where he escaped. The lawful right to demand such release of a fugitive by State only exists when allowed under a treaty.

States enacting laws regarding extradition generally need to be in conventionality with their Municipal Laws. In some States, Extradition is only decided if the offence charged is also an offence as per the laws of extraditing State.

Conditions for Granting Extradition

Extradition means generally the offenders are extradited according to the conditions of the Treaties. However, the Courts laid some guidelines-

• Political Offences – Extradition of political nature are not allowed by the majority of the States. The criteria for such crime have been established according to judicial decisions. For such offence, there must be two or more parties each trying to impose a government of its choice on other or for political control of a State. It excludes anarchists and terrorists.

Re Meunier⁴– The accused had caused two explosions in a Paris Cafe and two barracks and had fled to England. France demanded expulsion of the escapee from England. The British Court constituted political crime or offence as-

a) Presence of two or more political parties competing to take over the Government.

b) Any offence committed to succeed a political agenda is not to be considered.

In the above case, the accused did not belong to any political party and hence the offence was not of political nature.

• Military Offence- Extradition proceedings exclude military criminals. E.g. Desertion;
• Religious Offence- Person accused of religious crimes are to be excluded from Extradition.
• Rules of Speciality- Extradition should be provided for an offence committed by the accused and not for some false accusation.

United States v. Reuscher⁵– The accused, a sailor was charged for murdering his fellow servant in his ship. Great Britain extradited him to the U.S. He was tried and convicted in the U.S. upon the charge of grievous hurt. The conviction was quashed by the Supreme Court and an order of release was presented on the grounds that the prisoner could be charged for offences for which he was extradited unless a reasonable time had elapsed for him to return back to surrender.

• Double Criminality- Offences to be punished should come under the ambit of laws of both the States in action.

In Factor v. Laubenheimer and Haggard⁶– The U.S Supreme Court gave an interpretation for the Extradition Treaty between the U.S and Great Britain. The plaintiff was charged for extraditable crime although it was not punishable under the Municipal Law, where the plaintiff had taken in custody.

• Reasonable Prima facie evidence- It is necessary to have a reasonable prime facie evidence to invoke extradition.
• Treaty Formalities- The terms and condition of an Extradition Treaty should be strictly complied with.

Savarkar’ Case⁷ – Savarkar, an Indian activist was charged with treason and abetment of murder.

On his back from the U.K. to India in a British trail, he happened to escape at the harbour of Marcelese and was thus was detained by the French police force. They brought him back to the ship without any extradition proceedings. Later the French Government demanded the return of Savarkar. They contended that the rescue of Savarkar by the British official’s were in contrary to the International Law. But the British government declined the same.

The Permanent Court of Arbitration in Hague held that no International Law provides for any such compulsion upon any State and that the criminal should be returned.

Position in India

Chapter II and Chapter III of the Extradition Act, 1962 lays down provisions relating to come back of the fugitives.

Restrictions were provided on such surrender of fugitives under Section 31 of the Act as follows-

1. Expiry of 15 days- A fugitive cannot be surrendered or returned until after the expiry of 15 days from the date of a person bring put to prison by a magistrate.
2. Extradition only for particular offence- An escapee cannot be charged of one particular offence in India and extradition for any other offence.
3. Treaty Obligation- Only under the provision made by the law of a State, an escapee can be extradited to another State.
4. Political Crime- No fugitive criminal can be extradited for any form of political crime.
5. An Escapee cannot be extradited if the prosecution for the offence is disqualified by time according to the law of the requesting State.

Cases

• Sarvarkar’s Case⁸– Explained above.
• State of Madras v C.G. Menon⁹– Article 14 of the Indian Constitution was held to be inconsistent with the Fugitive Offenders Act, 1881. The Ministry of External Affair issued a notification on May 1955 presenting the procedures required for receiving a fugitive offender in India from the U.K. and corresponding Countries.
• Ram Babu Saxena v State10- Under Section 18 of the Extradition Act, no Treat existed and no grounds to comply with the same can be brought upon by Section 7 of the same Act.
• Vijay Mallaya’s Case- He is a defaulter who escaped to the U.K. to avoid custody in India. He defaulted with 9000 Crores loan which he has no intention of repaying the amount. He took illegitimate shelter in the U.K. and is from then fighting the cases in the U.K. High Court.
• Nirav Modi’s Case- Another famous defaulter who escaped to the U.K. as well. He is a diamond businessman and is facing a trial for Extradition in the U.K Court.

International Treaties between India and other Countries

1. India and Russia made an Extradition Treaty. The same was approved and ratified by Russia on 15th April 2000.
2. India and Spain made an Extradition Treaty in June 2002.
3.  Germany signed the Extradition Treaty with India at Berlin on 27th June 2001. The Treaty enabled the countries to extradite any person for offences recognized as a crime by both the countries. The treaty mentioned few provisions to the crime.
4. A Treaty was made by India and Canada for promoting cooperation between two countries and to suppress crimes by making provisions as to Extradition. The Government of India signed the Treaty on 6th February 1987.
5. Both India and France signed an Extradition Treaty on 24th January 2003. Before the Treaty was formed many criminals and terrorists were able to escape from India. India government removed all confusion by stating that the terrorist extradited to India will not be awarded the death penalty.
6. India and America formed a Treaty on 25th June 1997. Daya Singh Lahoria was extradited from America on the basis of the Treaty. And a number of extraditions are expected to be executed in the coming years. The Treaty was formed to curb extremism and terrorism spread at large. The American government has been quite cooperative with India for extraditing criminals.
7. Hong Kong formed a Treaty with India in 1997 when it wasn’t a part of China. Later China accepted the same and agreed to abide by the laws.

Legal Standing of India

The Extradition laws in India are directly sourced from the Extradition Act, 1962 with two schedules and five chapters. So far, India has formed Bilateral Extradition Treaties with only 42 countries.

Section 2 (d) of the Act defines the Treaty as an agreement or arrangements between two nations pertaining to the dealing of escapees who are criminals.

Section 3 of the Act allows the Government to issue a notice for extension of the extradition act. The Act overall describes the extent of offences and who is to be extradited. The same is defined under Section 2 (c) and Section 2 (f) of the Act.

Conclusion

The entire concept of Extradition law is built to bridge relation among nations and maintain order among them. Punishment of the people for not abiding laws and attempt to escape custody should be punished and that’s where extradition comes into major role play. The process of Extradition would enable the return of such escapee’s and face a fair trial in the court of law from the countries they had extradited.

The treaties promoting the process thrive for harmony and mutual understanding at international platforms. While some offenders still remain free due to lack of subjection of common law or cooperation among nations. An attempt to serve justice is being made by mutual understanding and formation of treaties between nations.

References:

• [1]- (2011) 11 SCC 214
• [2]- (1954) AIR 517, 1955 SCR 280
• [3]- (1993) 280 U.S.276
• [4]- (1894) 2 Q.B. 415
• [5]- (1886) 119 U.S.407
• [6]- (1993) 280 U.S.276
• [7]- (1911) 13 BOMLR 296
• [8]- (1911) 13 BOMLR 296
• [9]- 1954 AIR 517, 1955 SCR 280
• [10]- 1950 AIR 155, 1950 SCR 573
•  [11] International Law and Human Rights- Dr. H.O. Agarwal
• [12] Textbook on Public International Law- Dr. Rakesh Kumar Singh
• [13] D.r. S.k. Kapoor, international law and human rights 351 (20thed. 2016).
• [14] https://www.legalbites.in/extradition-and-asylum/
• [15] http://www.legalserviceindia.com/legal/article-90-law-of-extradition-and-treaties-with-some-countries-at-international-level.html
• [16] Criminal Extradition and International Diplomacy,  https://www.lawteacher.net/free-law-essays/international-law/criminal-extradition-and-international-diplomacy-law-essay.php#ftn11
• [17] George J. Andreopoulus,  https://www.britannica.com/topic/extradition