UNIVERSITY INSTITUE OF LEGAL STUDIES,

PANJAB UNIVERSITY, CHANDIGARH

“EXTRADITION”

A PROJECT REPORT SUBMITTED AS A PART OF CURRICULUM OF B.A.LL.B

(HONS.) IN THE SUBJECT OF

“PUBLIC INTERNATIONAL LAW”

SUBMITTED TO: SUBMITTED BY:

DR. TANMEET KAUR SAHIWAL SHWAS BAJAJ

(FACULTY OF LAW) ROLL NO. 69/18

UILS, PANJAB UNIVERSITY SEMESTER: 7TH

B.A.LL.B (H)

SECTION: B

SESSION: 2021-22

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 ACKNOWLEDGEMENT

For the success and final outcome of this project, I would like to thank Dr. Tanmeet Kaur
Sahiwal, who gave me this wonderful project which helped me to enhance my knowledge in
the subject. This project would not have been possible without her constant support and
guidance.

I would also like to express my gratitude towards my family and friends who helped me with
their valuable suggestions and guidance and have been helpful in various phases of
completion of this project.

Shwas Bajaj

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 TABLE OF CONTENT

Sr. Topic Page No.

No.
1. Introduction 4
2. What is Extradition? 5
3. Purpose of Extradition 5
4. Legal Responsibility of State in Case of Extradition 6
5. Law of Extradition 7
 Extradition Treaties 7
 Extradition of Political Offenders 8
 Doctrine of Double Criminality 9
 Role of Speciality 9
 Prime Facie Evidence 10
 Time Barred Crimes 10
 Extradition of Own Nationals 10
 Military Offenders 11

6. Extradition Law in India 11

7. Important Case Studies 12
8. Conclusion 14
9. Bibliography 15

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 INTRODUCTION

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 traffic. 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 of a
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.

In an extradition process, one sovereign jurisdiction typically makes a formal request

to another sovereign jurisdiction ("the requested state"). If the fugitive is found within the
territory of the requested state, then the requested state may arrest the fugitive and subject
him or her to its extradition process. The extradition procedures to which the fugitive will be
subjected are dependent on the law and practice of the requested state.

Between countries, extradition is normally regulated by treaties. Where extradition is

compelled by laws, such as among sub-national jurisdictions, the concept may be known
more generally as rendition. It is an ancient mechanism, dating back to at least the 13th
century BCE, when an Egyptian pharaoh, Ramesses II, negotiated an extradition treaty with
a Hittite king, Hattusili III.

Under International law, extradition is a formal, diplomatic process by which one

state requests another to effect the return of custody of a fugitive criminal 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 is an obligation
undertaken by States in good faith to promote and execute justice.

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 WHAT IS EXTRADITION?

According to Starke-The term extradition denotes the process whereby under the
treaty or upon a basis of reciprocity one state surrenders to another state at its request a
person accused or convicted of a criminal offence committed against the laws of the
requesting state, such requesting state is competent to try the alleged offender.

According to Grotius-It is the duty of each state to punish the criminals or to return
them to the states where they have committed the 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.

Extradition is derived from “ex” and “traditum”, which means “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 of a
crime.

The above definitions make it clear that in extradition two States are involved. They
are firstly, the territorial State, i.e., a State where an accused or convict is found, and
secondly, the requesting State, i.e., a State where the 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
distinguishes 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. Normally a person cannot be

punished or prosecuted in a state where he has fled away because of lack of jurisdiction or
because of some technical rules of criminal law. Criminals are therefore extradited so that
their crimes may not go unpunished.

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2. Extradition acts as a warning to the criminals that they cannot escape punishment by
fleeing to another State. Extradition therefore has a deterrent effect.
3. Criminals are surrendered as it safeguards the interest of the territorial State. If a
particular State adopts a policy of non-extradition of criminals they would like to flee to
that State only. The State, therefore, would become a place for international criminals.
4. Extradition is based on reciprocity. A State which is requested to surrender the criminal
today may have to request for extradition of a criminal on some future date.
5. Extradition is done because it is a step towards the achievement of international co-
operation in solving international problems of a social character. Thus, it fulfils one of the
purposes of the United Nations as provided under Para 3 of Article 1 of the Charter.
6. The State on whose territory the crime has been committed is in a better position to try the
offender because the evidence is more freely available in that State only.

LEGAL RESPONSIBILITY OF STATE IN CASE OF EXTRADITION

Grotius was of the view that a State of refuge has a duty either to punish the offender
or to surrender him to the State seeking his return. The principle of 'prosecution or
extradition' was recognized by him as a legal duty of the State where the offender is
found. The legal duty of the State according to him is based on natural law. Vattel also had a
similar view. He regarded extradition as a clear legal duty imposed upon States by
International Law in the case of serious crimes. The principle of prosecution or extradition
has been expressed by the maxim aut dedere aut puniare. However, in practice, the principle
has not been followed by the States, and therefore, it could not become a rule of international
law.

In the case of Factor vs. Labubenheimer1, the United States of America Supreme
Court held that International Law recognizes no right to extradition apart from a treaty. While
a Government may, if agreeable to its own Constitution and laws voluntarily exercise the
power to surrender a fugitive from justice to the country from which he has fled, and it has
been said that it is under a moral duty to do so. The legal duty to demand his extradition and
the correlative duty to surrender him to the demanding country exist only when created by
treaty.

In modern times, a fugitive criminal is not surrendered in the absence of extradition

treaties. A legal duty to surrender a criminal therefore arises only when treaties are concluded

1
290 U.S. 276

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by the States and after the formalities have taken places which are stipulated in the
extradition treaties. Only in exceptional cases, a State may extradite a person on the basis of
reciprocity. However, this is not done because of any legal duty on their part, but because of
reciprocity or courtesy.

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 of a person is determined by the municipal
courts of a State, but at the same time it is also a part of International Law because it governs
the relations between two States over the question of whether or not a given person
should be handed over by one State to another State. This question is decided by the
national courts but on the basis of international commitments as well as the rules of
international law relating to the subject.

Presently, in the absence of any multilateral treaty or convention, extradition is done

by States on the basis of bilateral treaties wherein provisions are made in accordance with the
municipal law by which they have agreed between themselves to surrender the accused or
convict to the requesting State. in case such a person comes under the purview of a given
treaty. Bilateral treaties at international level are supplemented by national laws or
legislation at the municipal level. Thus, many states have national legislations. They have
made rules regarding extradition of fugitive criminals. Bilateral treaties, national laws of
several states, and the judicial decisions of municipal courts led to develop certain principles
regarding extradition which are deemed as general rules of International Law. Important
amongst them are as follows:

(1) EXTRADITION TREATIES

The first and the foremost important condition of extradition is the existence of an
extradition treaty between the territorial State and the requesting State. Some states, such as
the United States, Belgium and the Netherlands, require a treaty as an absolute pre-
condition. The strict requirement of an extradition treaty may be regarded as the most
obvious obstacle to international cooperation in the suppression of crimes. It is, therefore,
desirable that States conclude extradition treaties with as many States as possible to suppress
the crime. In practice, a person is deported to the State from which he has arrived in the

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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 are deported from abroad.

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 treaty so that
criminals could be handed over to face trial but Pakistan rejected the Indian proposal by
saying that time has not arrived for such a step.

(2) EXTRADITION OF POLITICAL OFFENDERS

It is a customary rule of International Law that political offenders are not

extradited. In other words, they are granted asylum by the territorial State. During the days
of monarchs, extradition of political offenders was very common. They used to prefer
extradition so as to avoid intervention in the affairs of another State, but the practice
underwent a complete change with the beginning of the French Revolution. Perhaps, for the
first time, the French Constitution of 1793 under Article 120 made a provision for granting
asylum to those foreigners who exiled from their home country for the cause of liberty. Later
on, other states followed the principle of non - extradition of the political offenders
gradually. Indian Extradition Act of 1962 also lays down a similar provision under Section 31
(a). At present, non-extradition of the political offenders has become a general rule of
International Law and therefore it is one of the exceptions of extradition.

The rule of non-extradition of the political offenders is based on many considerations

which are as follows –

(1) The rule is based on the elementary consideration of humanity. No State would
like to extradite a person if he is not a criminal. If it does, it will not be in compliance with
the law of natural justice.

(2) If political offenders are extradited, it is feared that they would not be treated
fairly. It is a duty of the territorial State to ensure safeguards to the surrendered fugitives for
a fair trial in the requesting State. Since it is a difficult task, they are not extradited.

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 (3) The rule also protects the political offender from any measure of extra - legal
character which the requesting State might attempt to take against them.

(4) The object of the political offenders to take shelter in another country is not the
same as those of the ordinary criminals.

(5) Political offenders are not dangerous for the territorial State as may be in the case
of ordinary criminals.

(3) DOCTRINE OF DOUBLE CRIMINALITY

The doctrine of double criminality denotes that a crime must be an offense recognized
in the territorial as well as in the requesting State person is extradited unless this condition is
fulfilled. The doctrine appears to be based on the consideration that it would offend the
conscience of the territorial State if it has to extradite a person when its own law does not
regard him as a criminal. The doctrine thus satisfies double purpose. It helps the requesting
State to enforce its criminal law, and to the territorial State in the sense that the rule protects
it from fugitive criminals. In order to ensure that a crime is recognized in both the states, a list
of extraditable offenses is attached in the extradition laws of some states. But, generally, a
list of crimes is embodied in the treaties for which extradition is done.

The rule of double criminality has put a State into a difficult situation when it has to
request another State for extradition in respect of those offenses which do not find place in
the list of crimes embodied in a treaty. In order to overcome the above difficulty it is
desirable that instead of laying down the names of various crimes specifically in the treaties,
some general criterion should be adopted. For instance, any offense punishable with a
definite minimum penalty under the laws of both the States should eligible a person for
extradition appears to be more appropriate.

(4) RULE OF SPECIALTY

According to this principle, a fugitive may be tried the requesting State only for that
offense for which he has been extradited. In other words, the requesting State is under a duty
not to try or punish the fugitive criminal for any other offense than that for which he has been
extradited, unless he has given an opportunity to return to the territorial State. The rule has
been made to provide safeguard to the fugitives against fraudulent extradition. An important

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case on this rule is that of United States v. Rauscher2 wherein the accused was extradited on
the charge of murder, but he was tried and convicted in U.S.A., on a minor charge of causing
cruel and unusual punishment on a member of the crew. He made an appeal before the
Supreme Court of the United States which quashed the conviction and ordered the release of
the prisoner on the ground that unless otherwise provided for by the treaty, the prisoner could
only be charged with the offense for which he was extradited unless he was given a
reasonable time to return to the country which surrendered him. It is to be noted that the
accused can raise this principle when a treaty or the national law provides for this principle.
In their absence, his plea cannot be entertained.

(5) PRIMA FACIE EVIDENCE

There should be a prima facie evidence of the guilt of the accused. Before a person is
extradited, the territorial state must satisfy itself that there is a prima facie evidence against
the accused for which extradition is demanded. In C.G. Menon's case3 the Madras High
Court held that “the need for offering evidence to show that prima facie the offender is guilty
of the crime with which he has been charged by the country asking for his extradition has
been well recognized.” The purpose for laying down the rule of prima facie evidence is to
check the fraudulent extradition. The territorial State has to see that the demand is not
motivated by any political reasons.

(6) TIME-BARRED CRIMES

A fugitive criminal shall not be surrendered, if he has been tried and has served
sentence for the offense committed in the territorial State. Thus, extradition is not granted if
the offense for which extradition has to be made has become time - barred.

(7) EXTRADITION OF OWN NATIONALS

In many cases a person after committing a crime in a foreign country flees back to his
own country. Whether a State would extradite such persons, i.e., its own nationals, to a State
where crime has been committed is a controversial point and practice of States considerably
differs on it. Extradition or non - extradition of its own nationals depends upon the wordings
of the extradition treaties. Nationals may therefore be extradited if there is no bar in the
national extradition law or in the treaty. But if the restriction is imposed therein regarding the

2
(1886) 119 US 407
3
AIR (1953) Mad 729.

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extradition of its own nationals, it becomes a duty of the territorial state to punish them so
that crimes may not go unpunished.

(8) MILITARY OFFENDERS

Extradition treaties generally exclude military offenses. Broadly, military offenses

fall into two categories, i.e., those which constitute offenses under ordinary criminal law and
those which relate specifically to military matters. Only the second category qualifies as
military offenses in respect of which extradition will not apply. Desertion is an example of
the second category.

EXTRADITION LAW IN INDIA

India enacted its first Extradition Act in 1962. Extradition was regulated on the basis
of United Kingdom Extradition Act 1870, prior to the 1962 Act. The 1962 Act consists of 5
Chapters and 2 Schedules. Under Section 2(d) of the Indian Extradition Act 1962,
“extradition treaty‟ has been defined as a treaty (agreement or arrangement) made by India
with a foreign State relating to the extradition of fugitive criminals and includes any treaty
relating to the extradition of fugitive criminal made before 15th August 1947, which extends
to, and is binding on India.

The 1993 Amendment Act enabled India for conclusion of extradition treaties with
foreign States, including the Commonwealth countries, without treating them in a different
manner. The difference is between treaty states and other foreign states, as was the case
earlier.

The Amended Act also implies the definition of an “extradition offence‟ to mean:

1. In relation to a foreign state being a treaty state, an offence provided for in

extradition treaty with that state

2. In relation to a foreign state other than a treaty state an offence, which is punishable
with at least a minimum one year imprisonment including a composite offence.

Moreover, India has signed extradition treaties with 37 countries such as for instance;
United States of America, UAE, United Kingdom, Switzerland, Russia, Saudi Arabia,
Australia, Bangladesh, Bhutan, France, Germany, Korea, Hong Kong, Mexico, Poland etc.

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 IMPORTANT CASE STUDIES

 Abu Salem Abdul Qayoom Ansari

He was convicted for the 1993 Mumbai serial blasts case, and murder of music
baron Gulshan Kumar in 1996, shooting at Indian actress Manisha's secretary, murdering a
property builder and more than 50 other cases.

On 20 September 2002, he was arrested along with Monica

Bedi by Interpol in Lisbon, Portugal. His satellite phone was tracked using GPS technology.
Monica Bedi was a film actress who reportedly had relationship with him. In February 2004,
a Portugal court cleared his extradition to India to face trial in the 1993 Mumbai bomb blasts
case. In November 2005, Portuguese authorities handed him over to India on the assurance by
the Government of India that the death penalty would not be handed out. When Salem was
in Lisbon fighting India's extradition attempt, the only proof that he was indeed Salem was
provided by the fingerprint and photographs taken after his arrest in 1991. Monica Bedi was
also extradited to India and later convicted of passport forgery in 2006 and served her
imprisonment but she was not involved in any of the businesses operated by Abu Salem.

In March 2006, a special Terrorist and Disruptive Activities (Prevention) Act court
filed eight charges against him and his alleged associate Riaz Siddiqui for his role in the 1993
Mumbai serial blasts case. He stands accused of ferrying and distributing weapons.

Abu Salem Abdul Qayoom Ansari made appeals and writ petitions stating that the
criminal courts in the country have no jurisdiction to try in respect of offences which do not
form part of the extradition judgment, by virtue of which he had been brought to this country
and he can be tried only for the offences mentioned in the extradition decree.

The Hon’ble Supreme Court dismissing the petition, in the case of Abu Salem Abdul
Qayoom Ansari v. State of Maharashtra & Anr.4, held that as long as the facts that have
been submitted before the requested State prima facie show the guilt of the extraditee in a
foreseeable and logically consistent way, the said person can be tried on all such counts that
can be conclusively proved against him or her.

 Vijay Mallya

Vijay Mallya had fraudulently obtained huge loans from a consortium of banks led by
the State Bank of India, for running his Kingfisher Airlines. By the time he fled India in
4
(2011) 11 SC 214.

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2016, his dues to the banks were to the tune of Rs 9432 crore. However, at that time, only
IDBI bank had filed an FIR against him for a fraud of Rs 900 Crore. Other banks in the
consortium delayed the filing of FIRs — perhaps fearing that it may involve and implicate
their own officers.

He was found to be in London. India made an extradition request to UK under the

extradition treaty signed between India and UK on 22 September 1992 and ratified on 15
November 1993.

The UK implemented the extradition treaty through its domestic legislation ‘The
Extradition Act 2003’. This act provides a different procedure depending upon whether the
extradition request is received from a Category 1 country (member of the European Union) or
Category 2 (other nations). As India fall under Category 2B, the extradition request is decided
at the political as well as at the legal level — that is, the decision from the Secretary of State
and the court respectively.
The Indian government also used diplomatic channels which led to the Home
Secretary of State’s decision to refer the matter to the court to decide the extradition on legal
grounds.
On 14 May 2020, the High Court also rejected his leave to appeal in the UK Supreme
Court against his extradition, and paved the way for his extradition to India. Although the UK
courts have recommended his extradition, his extradition has been delayed due to the
‘resolution of secret legal matter’ which is not being disclosed by the UK government.

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 CONCLUSION

International criminals to be extradited or prosecuted? This is a pertinent question as

per the international standards. But the international courts do not have the sufficient power
and means to try every international crime across the globe.

In theory as well as in real terms, the principle of extradition has attained the position
of a facilitator of imprisonment or trial in matters where suspected individual escapes the
boundaries of a nation to flee from being prosecuted. In order to attain maximum out of the
process, there is a dire need to eliminate the vendetta of the criminals by firstly making the
procedural law less complicated and more efficient.

If there is a constant fear in the minds of offenders and criminals where they will be
caught or extradited and prosecuted along with being punished severely for committing
crimes, it is genuinely going to reduce abundantly crimes and criminals.

In conclusion, frequent failure to catch fugitives and surrender them to the requested
state is the major cause of delay in implicit achievement of international co-operation and a
crime-free world. It has also been a lacuna in providing justice to the innocent suspects who
are wrongly and mistakenly accused of an offence and even inflicted on them are aids such as
cruel and degrading punishment or imprisonment along with capital punishment or death
sentence in certain circumstances.

Henceforth, the challenging involvement of all such political, criminal as well as the
economic activities in crimes like human trafficking, terrorism, or drug abuse, war crimesetc.
has caused greater hardship and blockage in developmental prospects of each nation
individually and also together.

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 BIBLIOGRAPHY

Books:

1. Dr. H. O. Aggarwal, International Law and Human Rights (Central Law Publications,
4th Edition).
2. Dr. S.K. Kapur, International Law and Human Rights (Central Law Agency, 22nd
Edition).
3. Gurdip Singh, International Law (Eastern Book Company, 3rd Edition).

Websites:

1. https://www.thequint.com/voices/opinion/vijay-mallya-fraud-economic-offender-
fugitive-enforcement-directorate-extradition-request-india-united-kingdom#read-more
2. www.indiankanoon.org
3. www.scconline.com
4. https://www.orfonline.org/research/indias-challenges-in-extraditing-fugitives-from-
foreign-countries-45809/
5. https://scroll.in/latest/960171/portugal-court-rejects-gangster-abu-salems-plea-
claiming-india-violated-his-extradition-conditions

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