This blog is written by Naman Sharma, a Second-Year Law Student of Law Centre 2, Delhi University

Introduction:

The term 'extradition' comes 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".

There are two states involved in extradition- the territorial state and the requesting state. The "territorial state" is the place to which the accused or convict runs to evade the trial or penal consequences. The "requesting state", on the other hand, is the one where the offence is or allegedly committed. The requesting state formally requests for the surrender of the accused or convict through diplomatic channels and in conformity with any treaty.[1]

Extradition is a judicial process by which a person, holding citizenship of one country, is sent back to his native land where he had escaped to avoid facing grave criminal offenses that are set against him. It is the judicial process resulting from bilateral agreements between nations. Extradition affords governments the opportunity to extradite fugitives from overseas and take them to justice, but such an act is very often accompanied by political tension, even in the presence of an extradition treaty. Extradition treaties are based on the historical practices prevalent among states and are entered into by states for the pursuit of fugitives and individuals wanted in other jurisdictions. In current times, extradition is an issue of great importance as it deals with matters happening in front of the eyes of the world from transnational criminal organizations in terrorism, drug trafficking, counterfeiting, and cybercrime.

Extradition is the process where a person is returned to another country for a trial or imposition of punishment of a crime committed in that country. It is still a legal and judicial procedure, as it uses the physical transfer of custody of the person to the legal authority of the requesting jurisdiction. Extradition is, in fact an approach in cooperative law enforcement since it only depends on the agreements signed between the two jurisdictions that are concerned with each other.

Currently, India has extradition treaties in force with the following 48 countries:[2]

• Afghanistan – 2016

• Australia – 2008

• Azerbaijan – 2013

• Bahrain – 2012

• Bangladesh – 2015

• Belarus – 2017

• Belgium – 2016

• Bhutan – 2014

• Brazil – 2012

• Bulgaria – 2011

• Canada – 2020

• Chile – 1897

• Egypt – 2008

• France – 2003

• Germany – 2001

• Hong Kong – 2000

• Indonesia – 2011

• Iran – 2008

• Israel – 2012

• Kuwait – 2004

• Lithuania – 2017

• Malawi – 2018

• Malaysia – 2010

• Mongolia – 2001

• Mauritius – 2003

• Mexico – 2007

• Nepal – 1953

• Netherlands – 1898

• Oman – 2004

• Philippines – 2010

• Poland – 2003

• Portugal – 2010

• Russia – 1998

• Saudi Arabia – 2010

• South Africa – 2003

• South Korea – 2004

• Spain – 2002

• Switzerland – 1880

• Tajikistan – 2003

• Thailand – 2013

• Tunisia – 2000

• Turkey – 2001

• UAE – 1999

• UK – 1992

• Ukraine – 2002

• USA – 1997

• Uzbekistan – 2000

• Vietnam – 2011

Peinciples of Extradition:

There are generally four principles of extradition, as explained below:

The principle of Reciprocity:

The principle of reciprocity is well-founded under various aspects of international law. It provides that every act of favor, respect, benefit, or penalty that a country bestows upon the citizens or legal entities of another country should be returned (reciprocated) in like manner. It provides for mutual expression of international support. In this sense, so far as extradition is concerned, the principle of reciprocity applies: 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 come into operation for the mutual extradition of alleged persons or convicts of respective countries.

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 acts of the fugitive must amount to an offense in the territorial state as well as in the requesting state. For example, if a person is found guilty of 'perjury' under English Law, but his acts do not amount to 'perjury' under American Law, then America can decline the request by England to extradite him.

Principle of Double Jeopardy:

The principle of double jeopardy also finds its name in 'non-bis in-idem'. Under this principle, a person who had already been tried and punished cannot be extradited if the request has to do with the same crime. No criminal tried and convicted once can be extradited for the same offence, except for the expired period of punishment.

Principle of Specialty:

The principle of specialty owes its importance from the simple principle that 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, United States v. Rauscher 1886, the fugitive offender was extradited from Great Britain to United States of America for trial upon a charge of murder committed aboard an American vessel.

The offender was convicted for the offence of grievously hurting a man and not for the alleged murder for which he was extradited on the extradition. It 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.[3]

Extradition System in India:

Indian Extradition Act, 1962:

Extradition of fugitive criminal in India is governed under the Indian Extradition Act, 1962. This act applies to both extradition of persons from India as well as to foreign countries from India. The extradition might be based on a treaty concluded between India and another country. India has extradition treaties with 48 countries so far.[4]

Extradition Treaties:

Section 2 (d) of the Extradition Act, 1962 defines the term "Extradition Treaty". It says, "Extradition treaty" means a treaty, agreement or arrangement made by India with a foreign State relating to the extradition of fugitive criminals and includes any treaty, agreement or arrangement relating to the extradition of fugitive criminals made before the 15th day of August 1947, which extends to, and is binding on, India.

Extradition treaties are the agreements between Countries which govern the matters of extradition of persons. India presently has extradition treaties with 48 countries. The nodal government body for the extradition matters of India is the Ministry of External Affairs. It provides a detailed account of the number of fugitives surrendered from different countries.[5]

India is a signatory to several multilateral conventions that offer a legally enforceable treaty of extradition to tackle crimes committed over the borders, including drug trafficking, terrorism, and hijacking of aeroplanes. Extradition applications may also be sought for absconding prisoners from non-treaty countries. Once the Indian side gives its nod to reciprocity, the applications may be allowed based on the laws and practices prevailing in the foreign country.

Extradition Procedure in India:

· Information is received from the country or through Interpol about the fugitive criminals wanted in foreign countries.

· Information then is passed on by the Interpol wing of the CBI to the concerned police departments.

· Information also is passed on to the immigration authorities.

· Then action can be taken under the 1962 act.

Landmark Cases on Extradition In India:

Some of the landmark cases are tabulated below.

1. Arrest and Return of Savarkar (France v. Great Britain):

In 1910, Vinayak Damodar Savarkar was on board the ship Morea while on his way from Britain to India ahead of his treason and murder trial (Emperor v. Vinayak Damodar Savarkar (1910)).

2. Abu Salem Abdul Kayyum Ansari vs The State of Maharashtra:

He was charged with murder, extortion, narcotics trafficking, money laundering, and other crimes. He was also accused in the case of 1993 Mumbai Serial Blasts.

He had fled to Dubai, followed it up with the United States of America, and finally settled in Portugal. In the year 2007, the extradition treaty between India and Portugal was finalized, and Abu Salem was extradited to India.

His Writ petition under Article 32 was dismissed by the Supreme Court of India in January 2021.

On 5 July 2022, it was decreed by the Supreme Court that life term of Abu Salem is remitted to 25 years and he must be let off by 2030 November.

3. State Bank of India vs Vijay Mallya Case:

Vijay Mallya did not repay loan amounting to Rs 60000 crore and flew the country in the year 2016 and found shelter in London, United Kingdom.

He is declared a tainted accused under The Fugitive Economic Offenders Act, 2018, by the Indian Government.

The Act gives powers to the Special Courts to try economic offences with an amount exceeding 100 crores when the accused person has absconded from Indian jurisdiction.

As per the Act, Mr Mallya was declared the first "Fugitive Economic Offender."

Mallya's extradition was sought by India in 2017 from the UK which was granted.

4. Nirav Modi Case:

The Central Bureau of Investigation (CBI) received a complaint in 2018 from the Punjab National Bank (PNB) accusing Nirav and his wife Mrs Ami Modi of having fraudulently obtained fake Letters of Understanding (Lou) worth $11,400 crores.

Interpol issued a Red Corner Notice against him for money laundering in June 2018

In 2021, the Court mandated to India.

However, he was not extradited to India in the case of which some court proceedings were still pending and he hadn't exhausted all his legal remedies in the UK.[6]

Conclusion:

Extradition is one of the most important tools used both to administer justice and try diplomatic ties. Yet again, the absence of extradition treaties with many countries becomes a loophole that most of the fugitive criminals exploit. There should be the bringing together of an all-embracing international law relating to extradition. It is this lacuna which, though may not cause economic or judicial issues in the origin country of the fugitive itself, may pose far-fletching implications like security threats in the country where he takes refuge.

Extradition plays a crucial role in tackling the issue of crime, while also highlighting the need to maintain diplomatic ties with other countries. India must establish more extradition agreements with foreign nations to curb further extradition-related incidents. This disparity should be addressed, similar to how the US has treaties with 100 countries, whereas India has only 48. With the number of fugitives increasing, India must implement stronger policies.

References

[1] J. Jerusha Melanie,’Extradition in International law’,Ipleaders(2022) https://blog.ipleaders.in/extradition-in-international-law/ accessed on 22nd September,2024

[2] ‘Extradition Treatie, https://cbi.gov.in/extradition-treaty last accessed on 23rd September,2024

[3] ‘Anonymous’,’Extradition In International Law’,Studocu https://www.studocu.com/in/document/chhatrapati-shivaji-maharaj-university/bachelors-of-law/extradition-in-international-law/54277994 last accessed on 23rd September,2024.

[4] ‘Extradition - Definition, Policy & Procedure’,Byjus.com https://byjus.com/free-ias-prep/extradition/ last accessed on 23rd September,2024

[5] Iam Yash Sharma, ‘Understanding Extradition: Laws, Principles, and Landmark Cases’,LegalserviceIndia https://www.legalserviceindia.com/legal/article-13842-understanding-extradition-laws-principles-and-landmark-cases last accessed on 23rd September,2024

[6] ‘Extradition - Meaning, Landmark Cases & Extradition Procedure in India’ (2023),Testbook https://testbook.com/ias-preparation/extradition last accessed on 23rd September,2024