EXTRADITION

UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY

EXTRADITION IN PUBLIC
INTERNATIONAL LAW

Submitted By: Rashap Bansal Submitted To: Dr. Gurpreet Kaur

Roll no. : 331/19
Section: F
Semester: 7TH

1
 EXTRADITION

ACKNOWLEDGEMENT

The success and final outcome of my project required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of my
project. All that I have done is only due to such supervision and assistance and I would not
forget to thank them. It would not have been possible without the kind support and help of
many individuals and organizations. I would like to extend my sincere thanks to all of them.
I am highly indebted to ‘Dr. Gurpreet Kaur’ for her guidance and constant supervision as well
as for providing necessary information regarding the project & also for her support in
completing the project.
I would like to express my gratitude towards my parents &friends for their kind co-operation
and encouragement which help me in completion of this project.

RASHAP BANSAL

2
 EXTRADITION

TABLE OF CONTENTS

Introduction……………………………………………………………………………4
What Is Extradition?........……………………………………………………….…….4
The Philosophy Behind Extradition ?..…..…………………………………………...5
Purpose Of Extradition……………….……………………………………………….5
Principles Of Extradition……………………………………………………………..6
Prerequisites Of Extradition………………………………………………………….7
The Extradition Act of 1962…….……………………………………………………8
Procedure For Extradition in India…………………………………………………9
Landmark Cases On Extradition…………………………………………………….10
Conclusion…………………………………………………………………………...11
References……………………………………………………………………………12

3
 EXTRADITION

INTRODUCTION

“No one can outrun the long arms of Law” this adage illustrates the true nature and objective
of the Legal System. Upon committing an offence, the person will be eventually brought to
Justice, this is the assurance that is given by the Law. With globalisation and
interconnectedness between the countries, it has become easier for the offenders in India to
travel abroad and try to safeguard themselves against the prosecutions faced in India.

The instance of Extradition recently came up in Abu Saleem’s Case. India’s diplomatic
relation with the Portugal Government and its commitment in the case were discussed and
made to the leading newspaper headlines. In this article, we will see what the case was and
what are the laws that govern extradition matter, and what is the actual scenario with the
Portuguese.

WHAT IS EXTRADITION?

The term ‘extradition’ originates from two Latin words- ‘ex‘ meaning ‘out’ and ‘tradium‘
meaning ‘give up’. It is based on the Latin legal maxim “aut dedere aut judicare” meaning
“either extradite or prosecute”.

As Oppenheim defined, “extradition is the delivery of an accused or a convicted individual to

the State on whose territory he is alleged to have committed or to have been convicted of, a
crime by the state on whose territory he happens for the time to be”. 1

Extradition is the surrender of a criminal from one sovereign authority to another. It is the
process of returning somebody accused of a crime by a different legal authority for a trial on
punishment.2

There are two states involved in extradition- the territorial state and the requesting state. The
“territorial state” is where the accused or convict flees to escape the trial or punishment. On
the other hand, the “requesting state” is the one where the offence is or is allegedly
committed. The requesting state formally demands the surrender of the accused or convict
through diplomatic channels and in conformity with any treaty.

1
‘International Law’ Vol. 1 , Ninth Edition (1992) , P.949
2
“Extradition” Microsoft 2009 (sub.). Red wood W.A : Microsoft corporation,2008
4
 EXTRADITION

THE PHILOSOPHY BEHIND EXTRADITION

The concept of extradition is based on the contention that an accused or convict can be tried
or punished with utmost efficacy at the place where the cause of action arose or the crime
took place. This is because it is much more advantageous to prosecute the offender in the
country where he committed the offence; for instance, procuring the relevant evidence is
more convenient in the country where the offence was committed than in any other country.
Also, such a country has a significant amount of interest in punishing the offender.

Moreover, the concept of state sovereignty kicks in while dealing with extradition. State
sovereignty refers to the ultimate authority of the concerned state over its own citizens and
territorial jurisdiction. So, technically speaking, no state is required or bound to hand over to
another state any person (either its own citizen or a non-citizen) currently present within its
territorial jurisdiction.

However, the mutual interests of both the territorial state and the requesting state for the
maintenance of law and order and the administration of justice require that the nations should
cooperate with each other in returning the accused person or convict to the requesting state.
Hence, to avoid the clash between state sovereignty and administration of justice, most states
enter into various treaties governing extradition. Also, various countries incorporate
provisions for extradition in their penal codes.

As far as India is concerned, the Indian Penal Code, 1860 does not explicitly mention
extradition but implies it in the Sections related to jurisdiction. The Extradition Act,
1962 explicitly deals with it.

PURPOSE OF EXTRADITION

A criminal is extradited to the requesting state for the following reasons -

• Suppression of crime- 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.
• Deterrent effect- extradition acts as a warning to the criminals that they
can’t escape punishment by fleeing to another state. Extradition therefore has a
deterrent effect.
• Safeguarding the interests of Territorial state- 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, which dangerous for
5
 EXTRADITION

it, which indeed would be dangerous for it because they may again commit a
crime there, if they would left Free.
• Reciprocity – 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.
• International co-operation- 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 fulfills one of the purposes of UN as provided under
para 3 of article 1 of the charter.
• Evidence- 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.

PRINCIPLES OF EXTRADITION

Ordinarily each State exercises complete jurisdiction over all the persons within its territory.
But sometimes there may be cases when a person after committing crime runs away to
another country. In such a situation, the country affected finds itself helpless to exercise
jurisdiction to punish the guilty person. This situation is undoubtedly very detrimental for
peace and order. In such a situation peace and order can be maintained only when there is
international co-operation among the States. There is social need to punish such criminals and
in order to fulfil this social necessity the principle of extradition has been recognized. The
inability of a State to exercise its jurisdiction within the territory of another State would
seriously undermine the maintenance of law and order if there were no cooperation in the
administration of justice. The awareness among national decision makers of the social
necessity of jurisdictional co-operation is illustrated by the widespread practice of returning a
person who is accused or who has been convicted of a crime to the State in which the crime
was committed.
• Principle of Double Criminality-
The principle of double criminality provides that the act for which the accused person
or convict is requested to be extradited by the requesting state, must be a crime in the
territorial state as well. Meaning, the fugitive’s activity must constitute a crime in
both the territorial state and the requesting state. For instance, if an individual is
convicted of ‘perjury’ under English Law, but his acts do not constitute ‘perjury’
under American Law, then America can reject the request by England to extradite
him.
• Principle Of Double Jeopardy-
The principle of double jeopardy is also called ‘non-bis in-idem’. It provides that a
person who had already been tried and punished can not be extradited if the request
pertains to the same crime. No criminal tried and convicted once can be extradited for
the same offence, except for the expired period of punishment.

6
 EXTRADITION

• Principle Of Speciality-
The principle of speciality provides that the requesting state is bound to try or punish
the extradited offender only for the offence for which he is extradited. For instance, in
the case of United States v. Rauscher 3, a fugitive offender was extradited from Great
Britain to the United States of America to be tried for a murder committed on board
an American ship. Upon the extradition, the offender was convicted for the offense of
grievously hurting a man, and not for the alleged murder for which he was extradited.
This was because there was no substantial evidence to prove him guilty of the alleged
murder. The Supreme Court held that it was a violation of the Extradition Treaty and
set aside the conviction.
In the judgment given by the Apex court in the case of Daya Singh Lahoria vs. Union
of India4 ,it was stated that a fugitive criminal brought in India under extradition
treaty can only be tried for the offense provided in the extradition decree and not for
any other offense. The Criminal courts in India cannot try such fugitive under any
offense other than the one allowed for trial.
• Principle of Reciprocity-
The principle of reciprocity is well-founded under various aspects of international
law. It provides that every act of favour, respect, benefit or penalty that a country
bestows on the citizens or legal entities of another country, should be returned
(reciprocated) in the same manner. It provides for the mutual expression of
international support. As far as extradition is concerned, the principle of reciprocity
applies that the territorial state must extradite the accused persons or convicts in
exchange for any diplomatic kindness shown by the requesting state. Such diplomatic
kindness may be any act, ranging from tariff relaxations or enforcement of foreign
judgments to military or economic aid. This principle may also operate for the mutual
extradition of accused persons or convicts of the respective countries.

PREREQUISITES OF EXTRADITION

EXTRADITABLE PERSONS-
The accused persons or convicts must not fall under the ambit of the following three
categories to be extraditable.
• Territorial state’s own nationals-
Most countries refuse to extradite their own nationals allegedly committing a crime in
the requesting State; such countries claim their right to exercise State sovereignty over
their nationals, even though the offence was committed in another country.
• Political Offenders-
One of the most controversial aspects of extradition is that many countries refuse to
extradite political offenders.

3
119 U.S. 407 (1886)
4
(2001) 4 SCC 516
7
 EXTRADITION

• Persons already punished-

Most countries follow the principle of double jeopardy and refuse to extradite the
persons tried and punished for the same offence for which the extradition is
requested.

EXTRADITABLE CRIMES-
The principle of double criminality applies to determine the extraditable crimes;
meaning, the fugitive’s activity must constitute a crime in both the territorial state and the
requesting state. Generally, except for the following categories of offences, most crimes
specifically mentioned in the extradition treaty existing between both the states are
extraditable.
Religious offences
Religious offences including religious disrespect are not extraditable.

Military Offences

Military offences like desertion, disobedience of higher officials’ orders, etc. are non-
extraditable.

THE EXTRADITION ACT, 1962 AND RESTRTICTIONS

ON SURRENDER UNDER INDIAN LAW

The Act provides for the extradition of fugitive criminals both from and to India. The
extradition may take place in accordance with any extradition treaty with the requesting or
territorial state. However, the Act also provides that, in absence of any such treaty, any
Convention to which India and such requesting or territorial state are parties can be treated as
the extradition treaty for that matter. (Section 3) .The Act imposes no explicit restriction on
the extradition of Indian nationals to the requesting State; however, the bar on extradition
varies from treaty to treaty.

As per Section 31 of the Extradition Act,1962 , the fugitive criminal shall not be
surrendered:

1. If the offence committed or alleged to have been committed by him is of political

nature;
2. If the offence committed or alleged to have been committed by him is time-barred
as per the requesting state’s laws;
3. If no provision exists in the extradition treaty or arrangement stating that he shall
not be tried for any offence other than for which he is extradited;

8
 EXTRADITION

4. If he has been accused of any offence in India not being the one for which is
extradition is sought; and
5. Until after fifteen days from the date of his being committed to prison by the
magistrate.

PROCEDURE FOR EXTRADITION IN INDIA

• PROCEDURE FOR EXTRADITION FROM INDIA-

The process for the extradition of a fugitive criminal from India begins when the requesting
state sends a request along with relevant evidence through diplomatic channels to the
Consular, Passport and Visa (CPV) Division of the Ministry of External Affairs (MEA),
Government of India (GOI). Upon receiving it, the GOI requires the Magistrate of
Extradition (usually a Magistrate of First Class) to issue an arrest warrant.

The Magistrate issues the arrest warrant on the conclusion of the following aspects, based on
the evidence put forth before him:

• Establishment of the fugitive criminal’s identity;

• That the fugitive criminal is extraditable; and
• That the crime committed or alleged to have been committed is extraditable.
Upon the arrest, the fugitive criminal undergoes judicial inquiry, the report of which is
submitted to the GOI. If satisfied by the report, the GOI may issue a warrant for the custody
and removal of the fugitive criminal. He is then delivered to the requesting State at the place
specified in the warrant.

• PROCEDURE FOR EXTRADITION TO INDIA-

The process for the extradition of a fugitive criminal to India from the territorial state begins
when the juridically competent Magistrate in India sends a request to the CPV Division of
MEA, GOI, upon the prima facie establishment of a case against the fugitive criminal. The
Magistrate sends the request along with relevant evidence and an open-dated arrest warrant.

The request is then formally sent to the territorial state through diplomatic channels, from
where it is forwarded to an Inquiry Magistrate. Such a Magistrate will ascertain:

• The identity of the fugitive criminal;

• Whether the offence committed or alleged to have been committed is extraditable;
• Whether the fugitive criminal is extraditable.
Upon such determination, the Inquiry Magistrate in the territorial state issues a warrant to
arrest the fugitive criminal. His arrest is intimated to the CPV/ Indian Embassy. Finally,
9
 EXTRADITION

concerned Indian law enforcement personnel travel to the territorial state to escort the
fugitive criminal back to India.

LANDMARK CASES ON EXTRADITION

• ABU SALEM’S CASE5-

Abu Salem is a notorious gangster currently serving multiple life sentences under
separate cases. Salem was one of six individuals found guilty in 2017 under the
Terrorist and Disruptive Activities (Prevention) Act of being responsible for the
explosions in Mumbai in 1993 that left 257 people dead and 713 wounded. Taher
Merchant and Feroz Abdul Rashid Khan received death sentences from the TADA
court, while Salem and Karimullah Khan received life sentences.

In another instance, a TADA court condemned Salem to life in prison in 2015 after
finding him responsible for the murder of builder Pradeep Jain in 1995. He was
convicted under various provisions under the TADA Act, Explosives Act, 1884 and
Arms Act, 1959, among others.

While extraditing Salem, the then Deputy Prime Minister of India, L K Advani, gave
solemn sovereign assurance to Portugal that Salem would not face a Death Penalty
and will not be imprisoned for more than 25 years. On this assurance, Salem was
handed over by the Portugal Government to the Indian Authorities.

In September 2011, on a plea filed by Salem, the High Court in Lisbon passed a
judgement saying that there had been a breach of the Indian undertaking given to the
Portuguese Authorities by slapping new charges invoking the death penalty. In 2012,
the Portugal Supreme Court rejected an appeal by the Central Bureau of Investigation
(CBI).

Later in 2012, the Constitutional Court of Portugal stayed the decision of the Portugal
High Court, alleging India for the violation of the extradition agreement. India, in its
plea, also mentioned an order of the Supreme Court of India where it stayed the
additional charges levelled against Salem.

In 2022, the Supreme Court Bench consisting of SK Kaul and MM Sunderesh said
that India should honour the commitment given to Portugal and asked the Central
Government to advise the President to use its powers under Article 72 of the
Constitution of India titled “Power of President to grant pardons, etc., and to suspend,
remit or commute sentences in certain cases”.

The Court further added that the necessary papers should be forwarded within a
month on completion of 25 years of Imprisonment of Salem. For this purpose, the

5
Abu Salem Abdul Kayyum Ansari v. State of Maharashtra, 2022 SCC OnLine SC 852, decided on 11.07.2022
10
 EXTRADITION

Central Government may also invoke the provisions of Section 432 and 433 of the
Code of Criminal Procedure (Cr.PC).

The Government added and assured that the question of release of Salem will arise
only in the year 2030 after the completion of 25 years of imprisonment, and the matter
will be dealt with the relevant provisions of law at that point in time.

• VIJAY MALLYA’S CASE6-

The case of Mr. Vijay Mallaya, the business tycoon and owner of Kingfisher Airlines
and United Breweries Holdings Ltd., is arguably the most well-known extradition
case in India. He owed a whopping debt of over ₹6,000 crores to 17 Indian banks
including the State Bank of India and the Indian Overseas Bank. Fearing an
impending arrest, Mallaya fled from India to the United Kingdom in 2016. His
extradition was sought by India in 2017. Mallya’s extradition case was laid before the
Westminster Magistrate’s Court in London. In 2018, the Court ordered his extradition
to India. His appeal at the High Court in London was rejected; however, he has not
been brought back to India yet due to ongoing legal procedures. It’s also worth noting
that in 2019, he was declared a ‘Fugitive Economic Offender’ under the Fugitive
Economic Offenders Act, 2018.

CONCLUSION

Extradition is an essential tool not only to render justice but also to test diplomatic ties.
However, the absence of extradition treaties with many countries becomes the loophole that
fugitive criminals exploit. There is a need to bring about a comprehensive international law
relating to extradition. It is this lacuna which may not only cause economic or judicial issues
in the fugitive’s origin country but also pose far-fletching implications like security threats in
the country where takes refuge.
Extradition though in theory seems to be a phase in Justice Delivery procedure which
undergo the transfer of an accused/convicted person to the state on whose territory the alleged
Crime has taken place he has been convicted of a crime, by the state on whose territory the
alleged criminal happens to be residing for the time being, however in practice it is very
much influenced by the international Diplomacy. This is an part where political
considerations play a noticeable role, unless there is an appropriate bilateral extradition
treaty: The practice of extradition usually involves interposition of the Judiciary in both
countries. The refusal of a country to extradite criminals to another may lead to international
relations being strained.

6
Dr. Vijaya Mallya vs. State Bank of India, AIR 2019 Kant 23
11
 EXTRADITION

BIBLIOGRAPHY

• BOOKS-
1. Dr. S.K. Kapoor , Public International Law and Human Rights, Central law
agency, Allahabad, 16th edition , 2017
2. Dr. HO Aggarwal, Public International Law and Human Rights , Central Law
Agency, Allahabad, 22nd Edition, 2019
3. Malcolm N. Show QC, International Law, Cambridge University Press, 5th
edition, Reprint 2005
4. M.P. Tandon and V.R. Anand , International Law and Human Rights,
Allahabad Law Agency, 15th edition ,2004
• INTERNET REFERENCES-
1. https://blog.ipleaders.in/extradition-in-international-law/
2. https://blog.finology.in/Legal-news/extradition-in-international-
law#:~:text=Extradition%20is%20recognised%20as%20international,country
%20that%20requests%20his%20extradition.%E2%80%9D
3. www.Researchgate.net

12