LAW ON EXTRADITION – CHANGING DIMENSIONS

& A CRITICAL STUDY WITH RESPECT TO INDIAN

APPROACH ON EXTRADITING CRIMINALS
BY- HIMANSHU SAINI, 07417703817 (BA LLB), 6-B
SUBMITTED TO – DR NAVJEET SIDHU KUNDAL
EXTRADITION - MEANING

• Extradition is a formal process by which a person is surrendered by one state to another

based on a treaty, reciprocity, or comity, or on the basis of national legislation. Most states
require a treaty, whether bilateral or multilateral and enabling national legislation. The
participants in the extradition process are therefore, the requesting party and requested
states and the individual who is the subject of the proceedings. The process and its
participants have not changed much throughout the course of history, but the legal bases
for it and the applicable state practices have.
 .

• Extradition is the means by which states cooperate in the prevention, control, and
suppression of domestic and international criminality. In the age of globalization, in
which individuals’ cross territorial boundaries or conduct business in multiple states at
unprecedented rates, the obligations to extradite or prosecute has gained importance and
acceptance.
• A request for extradition can be initiated against a fugitive criminal, who is formally
accused of, charged with, or convicted of an extradition offence. A fugitive criminal is
someone who is accused or convicted of an extradition offence within the jurisdiction of a
foreign state and includes a person who, while in a country conspires, attempts to commit
or incites or participates as an accomplice in the commission of an extradition offence in
a foreign state
 ROLE OF EXTRADITION

• Extradition plays an important role in the international battle against crime. It owes its
existence to the so-called principle of territoriality of criminal law, according to which a
State will not apply its penal statutes to acts committed outside its own boundaries except
where the protection of special national interests is at stake. In view of the solidarity of
nations in the repression of criminality, however, a State, though refusing to impose direct
penal sanctions to offences committed abroad, is usually willing to cooperate otherwise in
bringing the perpetrator to justice lest he goes unpunished.
 HISTORICAL BACKGROUND
The history of extradition can be divided into 4 periods:
• Ancient times to the seventeenth century CE- a period revealing an almost excusive concern for political
and religious offender.
• The eighteenth century until 1883- a period of treaty making chiefly concerned with the military
offenders characterizing the condition of Europe during that period. This observation is confirmed by an
examination of eighteenth century treaties between 1718 and 1830 complied by de Marten, where of the
ninety two treaties concluded during this period, twenty eight deal exclusively with military deserters.
• 1833 to 1948- a period of collective concern for suppressing common criminality.
• Post 1948 developments, which ushered in a greater concern for protecting the human rights of persons
and revealed an awareness of the need to have international due process of law regulate international
relations.
SUBSTANTIVE INGREDIENTS OF EXTRADITION

• Reciprocity - The principle of reciprocity has long been an established principle in the relations of
States with respect to matters of international law and diplomacy. It is basically a promise that the
requesting State will provide the requested State the same type of assistance in the future, should the
requested State ever be asked to do so. This principle is usually incorporated into treaties,
memorandums of understanding and domestic law.
• Double criminality- This principle states that, extradition is available only when the act in question is an
offence in the jurisdictions of both the States (the requesting State and the State requested). The
rationale behind this principle is that, the requested State should be at liberty to refuse to extradite the
fugitive offender if they do not view the conduct of the fugitive offender as a criminal act. The principle
of double criminality is traditionally bound with institutions of international criminal law.
.

• Extraditable offences- according to Indian provisions, those offences which, at the time of the request, are
punishable under the laws of both the parties by deprivation of liberty for a period of at least one year or
by a more severe penalty are known as extraditable offences. Such offences are mostly mentioned in the
treaties.
• Doctrine of Specialty – it is a principle of International law that is included in most extradition treaties,
whereby a person who is extradited to a country to stand trial for certain criminal offenses may be tried
only for those offenses and not for any other pre-extradition offenses. Once the asylum state extradites an
individual to the requesting state under the terms of an extradition treaty, that person can be prosecuted
only for crimes specified in the extradition request. This doctrine allows a nation to require the requesting
nation to limit prosecution to declared offenses.
• Political offences exception holds that a person cannot be extradited for an offence of political character.
The term political offences ‘has not been clearly defined in international law. What shall construe as a
political offence, usually, depends on the domestic law of the requested State. It is generally accepted that,
acts of terrorism do not fall under the exception of political offences, even if they are committed with
political motive.
 PROCEDURE OF EXTRADITION IN INDIA

• The Extradition Act 1962 lays down the procedure on Extradition in India.
• The Government of India has entered into bilateral Extradition Treaties with 42 countries to bring speed and efficiency
to the process of extradition. Besides, India has entered into Extradition Arrangements with 9 more countries.
• The legal basis for Extradition with States with whom India does not have an Extradition Treaty ("non-Treaty States) is
provided by Section 3(4) of the Indian Extradition Act, 1962 which says that the Central Government may, by notified
order, treat any convention to which India and a foreign state are parties, as an Extradition Treaty made by India with
that foreign state providing for extradition in respect of the offences specified in that Convention. India is also a party
to the 1997 International Convention for the Suppression of Terrorist Bombings. This also provides a legal basis for
Extradition in Terror Crimes.
• India can make an extradition request to any country. While India’s treaty partners have treaty obligations to consider
India’s request, in the absence of a treaty, it is a matter for the foreign country to consider, in accordance with its
domestic laws and procedures, whether the country can agree to India’s extradition request on the basis of an assurance
of reciprocity. Similarly, any country can make an extradition request to India.
.

• Each extradition treaty specifies the documents required for a provisional arrest request
and specify the means by which a provisional arrest request must be made. The
Police/Law Enforcement Agency concerned in India, prepares the request for a
provisional arrest and sends it to the MEA, which in turn forwards the same to the
concerned authority of the foreign country through diplomatic channels.
 CASES
• In Sucha Singh’s Case, after having murdered the Punjab chief minister Pratap Singh kairon in 1956, Sucha Singh absconded to Nepal.
In view of the extradition treaty between India and Nepal, on the request of the government of India, the government of Nepal extradited
sucha singh after initiating proceedings against him in accordance with the law of Nepal. Nepal did not regard the crime as political.
• Savarkar’s case (1911)– Savarkar was an Indian revolutionary. As an Indian and a British subject, he was being transported in the boat
Morea to India for the purpose of his trial on a charge of high treason and abetment of murder. During his voyage he jumped off the boat
and managed to escape. He was, after that seized by the French police on French grounds and was handed over to the British captain
without any extradition proceedings.
Later, French authorities demanded that Great Britain should ask for his extradition in a formal way in conformity with international law.
Great Britain refused. The matter was referred to permanent court of arbitration in Hague. The question was whether Savarkar should be,
in conformity with rules of international law be restored or not by the British government to the French government.
The court observed that , it is manifest that the case is not one of fraud or force in order to obtain possession of a person who had taken
refuge in foreign territory and that there was not in the circumstances of the arrest and delivery of Savarkar to the British authorities and of
his removal to India, anything in the nature of a violation of the sovereignty of France, and that all those who took part in the matter
certainly acted in good faith and had no thought of doing anything unlawful.
The court decided in favour of Great Britain by holding that international law does not impose, in such circumstances, any obligation on
the power which has in its custody a prisoner, to restore him because of a mistake committed by the foreign agent who delivered him up to
that power. A. M. Stuyt, Survey of International Arbitrations 1794-1938, The Hague 1939, p. 317.
 ABU SALEM'S CASE, FACTS :
• The accused had committed various acts out of a single conspiracy, which was a series of bomb explosions in Mumbai city and
resulted in the death of 257 persons. The appellant/accused was one of the absconders mentioned in the charge sheet filed in the
designated court, Mumbai. Appellant was entrusted with the task of transportation of illegally smuggled arms and ammunitions, their
storage and distribution to other co-accused persons. accused was declared as a proclaimed offender in 1993. The court issued non-
bailable warrant against appellant/accused and Interpol also issued red corner notice for his arrest. In September, 2002, the
appellant/accused was detained by the Portuguese police at Lisbon on the basis of red corner notice. In December, 2002, the
government of India submitted a request for his extradition in several criminal cases. He was subsequently, extradited from Portugal
on the grounds that he was involved in crimes under “the international convention for the suppression of terrorist bombings.” It was
further assured that the appellant would not be tried for any offence other than those for which extradition was sought, that the
appellant would not be further extradited, and that he would not be awarded death penalty or life imprisonment. Finally, he was
extradited based on the principle of reciprocity. however, he was also tried for offences under the TADA Act, 1987, the Explosive Act,
1908 and the Arms Act, 1959, punishment for which was life imprisonment or for 20 years or less. Subsequently, he filed a writ
petition under article 32 of the Constitution of India seeking to issue
• A writ of certiorari to declare that the charges farmed are violative of the rule of speciality and section 21 of the extradition act, 1962;
• A writ of prohibition prohibiting the respondents from prosecuting the writ petitioner any further for the offences for which the
petitioner has not been extradited by the order of the supreme court of Portugal
HELD
• The hon’ble court held
• “it is true that there is no extradition treaty between India and Portugal. However, the laws of both the countries permit entertaining request for
extradition from non-treaty states also. And although the convention was relied upon for the extradition process, it was not the sole basis. The primary
consideration for the request of extradition was the assurance of reciprocity.
• The court further held, that notification released by the Indian government makes it clear that the provisions of the Extradition Act, 1962 would apply
to Portuguese republic with the principle of reciprocity, and that these provisions were applicable in respect of the extradition of the accused, Abu
Salem.
• The court further opined that “a bare reading of section 21 of the Extradition Act would indicate that the accused Abu Salem can also be tried for
lesser offences in view of section 21 of the act disclosed by the facts proved for the purposes of securing his surrender, And the contention of the
accused that he can be tried only for the offences covered by the said convention is misconceived in view of the fact that he was extradited not only
under the said convention but also in the light of the principle of reciprocity made applicable through the application of the Extradition Act to the
Republic of Portugal. A complete reading of the Article 2 of the said convention makes it clear that it deals not only with those accused who commit
the substantive offences but also includes all the conspirators and those who have constructive liability for commission of the substantive offences.”
• The court further held that there was no violation of the rule of speciality and the solemn sovereign assurance given by the government of India to the
government of Portugal regarding the trial of the accused/ appellant. It is so because the constitutional court of Portugal recognised and approved the
principle of reciprocity and the application of the Extradition Act to Portugal and accordingly, the provisions contained in section 21 of the Act would
come into operation while conducting the trial of the accused. Therefore, he could be tried for “lesser offences” even if the same were covered by the
extradition decree, since the same is permitted under section 21 of the Extradition Act.
CONCLUSION

• Though extradition is granted in implementation of the international commitment of the

state, the procedure to be followed by the court in deciding, whether extradition should be
granted and on what terms, is determined by the municipal law of the land. Extradition is
founded on the broad principle that is in the interest of the civilised communities that
criminals should not go unpunished and on that account it is recognised as a part of the
comity of nations that one state should ordinarily afford to another state assistance
towards bringing offenders to justice.
THANK YOU