CHAPTER 19

Extraditlon

Definition:
It is quite possible for a person to escape to another State after committing
a crime in his own State. Such cases have started occurring more frequently with
the result of the development of the air trafic. A question arises as to whether
fugitive shall be tried in the country where he has fled away or in the State where
the crime has been committed. Normally, a State finds itself in a difficult
situation to punish a person who has committed a crime elsewhere primarily
because of the lack of jurisdiction, and therefore, such persons are sometimes
surrendered to the State where the crime has been committed. Surrender of an
accused or of a convict is referred to extradition. Surrender ofa 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.
Thus, the surrender of a person is against the established and traditional practice
of
theStates which started since the last quarter of
the eighteenth centuary.
The term extradition has derived from two Latin words ex and raditum.
Ordinarily, it may mean 'delivery of criminals, 'surrender of fugitives'or
handover of fugitives'. Extradition may be defined as surrender of an accused or
a convicted person by the State on whose territory he is found to the State on
whose territory he is alleged to have committed, or to have been convicted ofa
crime. According to Oppenheim extradition is the delivery of an accused or a
convicted individual to the State where he is accused of, or has been convicted
of, a crime, by the State on whose territory he happens for the time to be.
The above definition makes it clear that in extradition two States are
involved. They are : firstly, the territorial State, i.e., a State where an accused
a convict is found, and secondly, the requesting State, i.e., a State where the
or
crime has been committed. A State which demands for the surrender is known as
requesting State because a person is surrendered by the territorial State only upon
a
request by another State. Request is made normally through the diplomatic
channel. The request for extradition of a person distinguihes extradition from
other measures such as banishment, expulsion and deportation where an
undesirable person is forcibly removed.
Purpose of Extradition:
A criminal is extradited to the requesting State because of the following
reasons
(1) Extradition is a process towards the suppression of
crime.
person cannot be punished or prosecuted in a State where he hasNormauy
fled away
because of lack of jurisdiction or because of some technical rules of criminal la
1. International Law' Vol. I, Ninth Edition (1992), p. 949.
 281
Extradition

ninals are therefore extradited so that their crimes may not go unpunished.
Crimin
Extradition acts as a warning to the criminals that they cannot escape
(2)
to another State. Extradition therefore has a deterrent
nishment by fleeing
puni
effect.
(3) Criminals are safeguards the interest of the territorial
surrendered as it
State adopts a policy of non-cxtradition of criminals they
Seate, If a particular
The State, therefore, would become a place
ould like to flee to that State only. because they
criminals, which indeed would be dangerous for it,
wou

forinternational be left free.

commit a crime there, if they would
may again to
is based on reciprocity. A State which is requested
(4) Extradition extradition of a criminal on
SitrTender the criminal today may have to request for
some future date.
achievement of
Extradition is done because it is step towards the
a
(5) character.
co-operation in solving international problems of a social
international the United Nations as provided under
Para
one of the purposes af
Thus, it fulfills
1 of the Charter.
3 of Article crime has been committed is in a
The State on whose territory the
(6) more freely available
in
the offender because the evidence is
better position
to try
that State only. criminals is mutually
that extradition of the fugitive
It is to be noted international community as a
whole.
all the States or to say the
beneficial for crimes if it works effectively
role in eliminating
Extradition can play a major
through international cooperation.
State ?
Is Extradition a Legal Duty of a has a duty either to punish
the
that State of refuge
Grotius was of the view
a of
his return. The principle
surrender him to the State seeking the State
offender or to
w a s recognized by
him as a legal duty of
prosecution or
extradition' to him is based
duty of the State according
where the offender is
found. The legal extradition as a clear
who regarded
natural law. Vattel also
had a similar view the case of serious
on International Law in
States by by the
legal duty imposed upon or
extradition has been expressed
prosecution been
crimes. The principle of the principle has not
However, in practice,
maxim aut dedere aut puniare. International
in Combating
'Application of aut dedere aut puniare
International Law
Association, held
O . Agarwal, Seminar of
ee submitted in the
Teacher's
lerrorism' (Paper Convention
in New Delhi March 31, 1988). in the Genocide
treaties, for instance,
on
in many Protocols of 1977;
principle has been adopted Humanitarian Law
1949 and their
ne Geneva Conventions
on Committed on Board
Aircraft
other Acts
1948; the four on Offences
and Certain
Aircraft of 1970; the
Unlawful Seizure of
theTokyo Convention
Convention for the
Suppression of
the Safety of Civil
963; the Hague Suppression of Unlawful Acts against Crimes against
for the Punishment of
Montreal ConventionConvention on the
Prevention and
Convention Against
AViation of 1971; Diplomatic Agents, 1973;
including Convention against
Persons
Internationally Protected Narcotic Drugs 1961;
Convention on
Single 1984; Convention
Taking of Hostages, 1979; Inhuman or Degrading
Treatment or Punishment,
1988,
Maritime Navigation,
orture and other Cruel, unlawful acts against the Safety of and
of Mercenaries, 1989
TOr the Suppression Recruitment, Use, Financing, Training of
Onvention Against
Substances, 19 to Prosecute
Convention on Psychotropic Relating to the Obligation
Questions
by Belgium in
in
Senegal
instituting proceedings against
invoked
principle was its application
Or Extradite (Belgium v. Senegal) in
 282 International Law and Human Rights
followed by the States, and therefore, it could not become
Law. In modern times,
a rule of Intau
fugitive criminal is not surrendered in the auonal
a

extradition treaties.' The Supreme Court of the United States of

v. Labubenheimer clcarly stated that: America i Or
International Law recognizcs no right to extradition apart from
While a govcrnment may, if agrecable to its own
Constitution an trea y
voluntarily exercise the power to surrender a fugitive from justice to the co
from which he has fled, and it has been said that it is under a
moral duty to d
s o . . The legal duty to demand his extradition and the
surrender him to the demanding country exist only when created
correlative dutu to
A legal duty to surrender a criminal therefore arises
by treaty 2
only when treaties ar
concluded by the States and after the formalities have taken
place which are
stipulated in the extradition treaties. Only n exceptional cases, a State mav
extradite a person on the basis of reciprocity. However, this is done
of any their part, but because of reciprocity or
not because
legal duty on
courtesy.
Extradition and Deportation*
Extradition and deportation both are the methods by which an alien is
required leave
to the territory. However, both differ from one to another. Firstly
while extradition is primarily performed in the interest of the
requesting State
deportation is performed in the exclusive interest of the expelling State. Secondly,
extradition needs the consensual co-operation of at least two States, whereas
deportation is a unilateral action apart from the duty of the receiving State to
accept its own national. Thirdly, extradition applies to criminal prosecutions and
thus suppresses criminalty, expulsion order may be issued to any foreign national
on
a number of grounds. Fourthly, while extradition of a person only
on the request of another State, expulsion is an order of a State which prohibits
takes place
a person to remain inside the territory of the ordering State.

Law of Extradition
In International Law, rules regarding extradition are not well established
mainly because extradition is a topic which does not come exclusively under the
domain of International Law. Law of extradition is dual law. It has
operation-national as well as international. Extradition or non-extradition or a
person is determined by the municipal courts of a State, but at the same time it s

also a part of International Law because it governs the relations between rwo
States over the question o f whether or not a given person should be handed ovct

2009 before the International Court of Justice by stating that Senegal's compliance
obligation to prosecute or extradite the former President of Chad, Hissene Habreto Bes
1OTthe purposes of criminal proceedings. Belgium contended that under international eneral
Senegal's failure to prosecute Habre or to extradite him to Belgium viola 2012.
obligation to punish crimes against humanity. The case was decIaeu xtradite or
International Law Commission has included the topic "The obligatOn ex

prosecute for codification.

re ppenheim, Op. cit., p. 950; Arnold McNair, "Extradition and Ex- territoa
Vol. XXVIII (1951)
p. 174-177.
2. 290
U.S. (1933) p. 287; Also See Rauscher v. United State 119 US (1880)P* 407.
3. Starke's International Law, Eleventh
4. See Chapter 'Alien'. Edition (1994), p. 318.

NH
 283
Extradition
courts but
State. This question is decided by the national
to another international law
hv one State commitments as well as the rules of
international
on the basis of
subject.
to the convention governing
relating to conclude a
of attempts have been made a
A number
nations. In 1935, the
Harvard Law School prepared
among Association has
also
extradition request The International Law
the subject.
Convention on Conference held at
draft to extradition in the
problems relating but nothing
considered legal Draft Convention on extradition
was approved
1928 the extradition.
Warsaw. In universal convention
on
materialised in concluding a this topic for its
has has also not yet taken
of extradition in
Commission
Law
International
codification despite the inclusion of the topic desirable if
consideration for for its codification. It is
list of fourteen topics Law
1949, in its provisional rules of International
concluded so that general
convention is
a
multilateral
extradition.
settled regarding conclude regional
may be been made by the States to
also of 1902 produced
a
Attempts have American
Conference
the subject. The Pan Asian-African Legal
conventions on
w a s not
ratified. The
twelve States but it extradition at its meeting
treaty signed by a draft
Convention o n
C o n f e r e n c e of
Consultative Body
also prepared Commonwealth

1965, the
1960. In September,
Commonwealth

in Colombo in the desire for a

Justices expressed to schemes
of
Law Ministers
and Chief doubt, are parties
no
Extradition. Some States, For instance,
Convention o n geographical affinity.
between a group
of States having December 13, 1957 by
extradition
Extradition was signed on
Extradition
and the Arab League
Convention on
the European Council of Europe, States on
of the of Arab
the member States Council
the League
of contribute to the trend
Agreement
approved by
was
the
conventions
of creating
1952. Such regional
September 14, or Convention,
extradition.
general rules of of any
multilateral treaty
the absence wherein provisions
Presently, in of bilateral
treaties
the basis have agreed
law by which they
States o n
extradition is done by
a c c o r d a n c e with
the municipal requesting
State in
c o n v i c t to the
in
are madethemselves surrender the
accused or
Bilateral treaties
at
to of a given treaty.
Detween
under the purview at the
comes laws or legislation
national
case such a person
supplemented by They have made
nternational level are national legislations. rules
States have instance, in India,
level. Thus, many criminals. For the
municipal fugitive of 1962 and
e x t r a d i t i o n of a E x t r a d i t i o n Act
Uies regarding in the the
been made India only when
e x t r a d i t i o n have Extradition is done by
garding Act, 1993. other States also have
(Amendment) satisfied. Similarly,
Aradition
the Act are
Conditions laid down in decisions
extradition laws. and the judicial
of several States,
national laws extradition which
Bilateral treaties, regarding
certain principles are as
courts led to
develop
Law. Important amongst them
Of municipal International
as general
rules of
are deemed
follows
(1) Extradition Treaties of extradition is the
condition
foremost important and the requesting
The first and the between the
territorial State

existence of an extradition treaty

 284
International Law and Human Rights
State. Some States, such
the United States, Belgium and the
as
require treaty as an absolute pre-condition.' The strict
a Netherlands,
extradition treaty may be requirement of an
regarded as the most obvious obstacle to international
co-operation in the suppression of crimes. Since extradition treaties are
sensitive and require careful and politically
treaties and the criminal can
lengthy negotiations, States have few extradition
usually find a safe haven-that is a State which
requires treaty for extradition and has no such treaty with the State
a
whose within
jurisdiction the crime was committed. It is, therefore, desirable that States
Conclude extradition treaties with as
many States as possible to suppress the
cume.
In order to provide assistance to States
interested in negotiating and
concluding bilateral extradition agreements, the General Assembly on December
14, 1990 adopted a Model Treaty on Extradition
resolution invited member States to take into account
by adopting resolution. The
a
the Model Treaty on
Extradition at the time of concluding extradition treaties or
when they wish to
revise the existing extradition
treaty relations.' It is to be noted that in the absence
of any treaty
arrangements, a person may be extradited in exceptional cases on
the basis of reciprocity.
a formal
Germany and Switzerland extradite a person apart from
treaty if their govemments and the requesting State have exchanged
declarations of reciprocity. India does not have
any extradition treaty with
Portugal. However, when Abu Salem, an accused in 1993 Mumbai blast and an
underworld don fled to Portugal along with his wife Monica
the absence of a treaty, extradited Abu Salem to Bedi, Portugal, in
India after latter gave an
assurance that he would not be
given death sentence. Later, High Court of
1. Quattrocchi, an Italian businessman and an
accused in Bofors Scam could not be extradited
toIndia from Italy in the absence of a
treaty between the two countries. Negotiations for an
extradition treaty with Italy were initiated in 2001 but two countries
have not concluded any
treaty as yet.
2. India in the recent past has concluded extradition
treaties with many countries such as
Canada (1987), U.K. (1992), Russian
Federation (1998), U.A.E. (1999), U.S.A. (1999), Spain
(2002), France (2003), South Africa (2003), Kuwait (2004), South Korea (2004), Australia
(2008), Bangladesh and Thailand (2013).
India made a proposal to Pakistan during the Home-Secretary level talks held in
Islamabad in 2004 for the Indo-Pak extradition that criminals could be handed over
treaty so
to face trial but Pakistan rejected the Indian
such a step.
proposal by saying that time has not arrived for
3. Model Treaty on Extradition was annexed to the General
December 4, 1990. The Model Treaty Assembly Resolution 45/116 dated
consisting of 18 Articlesincludes the established
principles of extradition, for instance, non-extradition of a person
political nature, or military nature or if a person would be subjectedcommitting a crime of
to torture or cruel,
inhuman or degrading treatment or
punishment. The Model Treaty also laid down the
principles of double criminality, the rule of speciality, surrender of nationals,
and time-barred crimes. Asian African prima facie case,
Legal Consultative Committee also adopted a Model
Convention of Asian African States at its Fourth Session in
Tokyo in 1961 which contains 30
Articles
4. See General
Assembly resolution 45/116 dated December 14, 1990. The Model
Extradition is annexed to the resolution Treaty on
5. As to extradition of Monica Bedi, a local court of
on the ground that the crime committed
Portugal refused to extradite Monica Bedi
by her in India was similar to that of the crime for
which she was arrested in Portugal. Bedi was arrested in
document. Indian point of view was that possessing
Portugal for possessing forged
forged documents and 'wanted for forged
 Extradition 285

Portugal passed an order on July 14, 2004 along with rtasons for his extradition
to India. Abu Salem was extradited in 2006 on the condition that he will not be
given death sentence. His wife has also been ordered to be extradited to India.'
When an offender is returned to another State in the absence of an
extradition treaty, normally the act is called deportation. In practice, a person is
deported to the State from which he has arrived in the deporting State. If such a
State refuses to accept, a person is deported to the State of his nationality. The
home State of such a person has the duty to receive them, since a State cannot
refuse to receive such of its subjects as one deported from abroad. If the deported
to receive him, there
person expresses to go to a certain State, which is willing
should in principle be no reason for the deporting State not to allow him to go
there.' A person is deported on the basis of reciprocity. To deport an alien to a
has much the same effect as State.
specified State to
extraditing him that
Normally, a State exercises the discretionary power of deportation of a person
where his return is not properly secured under the applicable extradition laws and
treaties between the States concerned.'

(2) Extradition of Political Offenders offenders are not

customary rule of International Law that political
It is a
territorial State.
extradited. In other words, they are granted asylum by the
of political offenders was very
During the days of monarchs, extradition
common. They used to prefer
extradition so as to avoid intervention in the affairs
underwent a complete change with the
of another State. But the practice
for the first time, the French
beginning of the French Revolution. Perhaps, for granting asylum to
Constitution of 1793 under Article 120 madea provision
home country for the cause of liberty.
those foreigners who exiled from their
of non-extradition of the political
Later on, other States followed the principle similar
Act of 1962 also lays down a
offenders gradually. Indian Extradition of the political
At present, non-extradition
provision under Section 31(a). and therefore it is one
offenders has become a general rule
of International Law
of the exceptions of extradition.
Political offenders
Basis for the non-extradition of the based
the political offenders is
on many
The rule of non-extradition of
follows
Considerations which are as consideration of humanity. No
on the elementary
) T h e rule is based not a criminal. If it does,
extradite a person if he is
State would like to
to be extradited to India
for
and therefore she is required
documents' are two different crimes, extradition. The extradition
order c a me

Court ordered her

Later, the Portugese High order of the Lower Court.
trial. Court to review the
after the Supreme Court directed the High
2003). could not be
(Times of India, December 2, businessman and the Bofors Scam accused
Italian of treaty
. Ottavio Quattrocchi, the of reciprocity, (in the
absence
on the basis
extradited to India from Argentina for Abu Salem with Portugal
when no treaty
as was done
between India and Argentina) the Indian Government pushed
extradited to India had
have been Act
existed. Quattrocchi would
on a
the Argentinean Extradition
extradition is possible under
the case seriously because
reciprocal basis.
2. Oppenheim, op. cit., p. 946.
3. Tbid., p. 942.
300 International Law and Human
Rights
co-operation in social fields which is one or the purposes of the United Natione
as provided under Para 3 of Article I of the
Charter
(11) Extradition and Human Rights Violations
The classical international law did not provide
human rights safeguards At
the time of extradition of a person but 1n tne recent past human rights
are being taken into consideration at the time of the conclusion of safeouard
ras
treaties. Further, many European countries such as Switzerland, Austria
Germany, in their extradition laws, have adopted the principle that extradiin
shall be refused if the procedure in the requesting State is contrary to the
European Convention on Human Rights. Although presently, the refusal of
extradition on the ground of alleged violations of all the human rights is not
accepted by the States extradition is refused, in case of certain violation of human
rights, such as firstly, where there are substantial grounds for believing that if a
person is extradited he will be given torture or will be given cruel, inhuman or
degrading treatment or punishment,' and secondly, if the requested State has
substantial grounds for believing that a request for extradition for an ordinary
criminal offence has been made for the purpose of prosecuting or punishing a
person on account of his race, religion, nationality or political opinion, or that
person's position may be prejudiced for any of these reasons, and thirdly, where
a person if extradited would not get fair trial in the receiving State.

Extradition Law in India:

In India for the first time an Extradition Act was enacted in 1902. Prior to
the enactment of the Act of 1962 extradition in India was regulated on the basis
of the United Kingdom Extradition Act of 1870. The Act of 1870 was a law for
whole of the British Empire. The surrender of fugitive criminals amongst the
countries of British Empire was regulated by another Act, ie., the Fugitive
Offenders Act of 1881. Thus, extradition to and from countries of British Empire
was treated on different footings to that of extradition from other countries. The
Indian Extradition Act of 1903 was enacted to provide for more convenient
administration in British India and to supplement the Extradition Act of 1870 (as
modified from time to time) and to the Fugitive Offenders Act of 1881. Thus, the
3
Act of 1903 was supplementary to the above two Acts. The Act of 1903

.
The Convention Against Torture
Punishment under Article 3 lays
and other Cruel, Inhuman or Degrading Treatment or
down that member States would not repeal, return ot
extradite persons to States if there are substantial grounds for believing that they would at ns
of being suhjected to torture.
ASsange-the founder of Wiki Leaks was granted asylum by Ecuador in its embassy in United
Kingdom in August 2012 on the ground that he is an activist for freedom of the pico» and
freedom of expression and if extradited he
might be given torture or death sentence
2. The U.N. Model Treaty on Extradition also ethnic
contains a similar provision
which adu
origin, sex and status to the list of prohibited categories of discrimination. Thus, a Stac y
refuse extradition where there is likelihood of open discrimination against tne cauaadited
person on above grounds.
3. Article 3 of the U.N. Model
Treaty on Extradition lays down that extradition sna bt be
granted 'if the person would not receive the minimum dings
guarantees in criminal pro
...

as contained under Article 14

of the International Covenant on Civil and Political
4. Act XXTV of 1962. Kug
5. Act IV of 1903.
 301
Extradition

continued be in force after India became independent.

to
The expression 'extradition treaty' has
been defined under Section 2(d) of
or arrangement)
Extradition Act of 1962 to mean, a treaty (agreement
the Indian criminals
State relating to the extradition of fugitive
made by India with a foreign criminal made
to the extradition of fugitive
and includes any treaty relating India.
which extends to, and is binding on
before the 15th day of August 1947, India
which were concluded by the (British)
Thus, all those extradition trcaties bound by all
India. It considered itself to be
before 1947 were also continued by
India.
the extradition treaties of (British) extradition treaties
In 1956, India prepared a list of 45 pre-independence
other contracting
which were stated to be in force.
A question arises whether
such treaties. On
also considered themselves to remain bound by
States have themselves to be
was revealed that only
few countries considered
inquiry, it other countries
extradition treaties." Attitude of many
bound by pre-independent While Germany and
did not give replies to the query.
is not clear since they with India,
are not operative
view that extradition treaties
Portugal expressed the extradition treaties with these
by India that the pre-independence
it regarded fled to
Abu Salem, an accused in Bombay blasts,
was

States are still operative. When with

it was found that India
does not have an extradition treaty
Portugal in 2002,
extradition treaty was not pressed by
Portugal. Existence of pre-independenceFrance. When it was suspected
that Dharam
with
India. The same is the case Parliament
Minister of India declared in the
had fled to France, the Prime
Teja India has no extradition treaty with France,
and
on August 24, 1966, that
extradition cannot be requested to
that country. But the list of
therefore, his
includes France as one of thc
with whom India has extradition treaties,
countries, businessman and an accused
State. Similarly, when Quattrocchi, an Italian
treaty
Parliamentary Affairs Minister stated in the
in Bofors Scam fled to Argentina,
an extradition treaty
with Argentina. But, the
Parliament that India did not have in 1899 by the
Advani stated that the Treaty signed
leader of the opposition L.K. mentioned in the
was still in force as
it has been
(British) India with Argentina as to
that India itself is not quite sure
list of pre-independence treaties. It appears
which pre-independence treaties are operative.
countries and extradition
extradition treaties with 47
Presently, India has with 9 countries." List of
on a case to case basis)
arrangements (understanding Between 2002 to
extradition treaties includes a few
pre-independence treaties."
extradited by foreign countries
December 7, 2016, sixty two fugitives have been been
Crimes for which they have
to India on the basis of extradition treaties. has
includes murder, kidnapping, fraud,
cheating and terrorism. India
extradited constituted the bulk of
States." Indian citizens
also extradited 49 persons to other
these offenders.

Appendix 4, Annex No. 42, cited in H.O

. S e e Lok Sabha Debates, 12th Session, 1956, Court Journal, (1977) p. 53 at p. 59.
Extradition Treaties, Supreme
Agarwal, 'Succession to 119.
"The Indian Extradition Law', Appendix V, p.
2. R.C. Hingorani,
2018.
3. Times of India, February 20,
Netherlands and Switzerland.
4. For instance Belgium, Chile,
2018.
5. Times of India, February 20,
6. Ibid.