EXTRADITION LAWS - INDIAN PERSPECTIVE

By- Shazia Parveen.


Extradition is formal process by which criminal suspect held by one government is handed over to another government for trial, or, if already been tried and found guilty, to serve his or her sentence. Simply, it is the delivery of suspected accused or convicted individual to the state on whose territory he is alleged to have committed or convicted of a crime. This prospect is based on the maxim ex debito justitiae (in the interest of justice). As we live in highly Globalised and interconnected world which allows unrestricted movement of persons from one Nation to another. It will become difficult or more correctly impossible to punish when offender after committing offence runs away to another country rendering state helpless due to Jurisdiction issues. We need recognition of the Extradition principle so that the aim of law, order and Justice does not expire. Extradition is allowed only if the offences is recognized as crime in both the Jurisdiction i.e. requesting and requested state. Dual criminality usually forms an integral part of an extradition treaty. Extradition treaties entered into between India and foreign states require the principle of dual criminality to be satisfied prior to granting extradition requests and, in the absence of the same, extradition requests shall be refused.


Procedure of Extradition


The practice of extradition dates back to very early times in 1259 B.C. ,treaty was signed between Ramessess of Egypt and Hittites of Turkey. The US signed its first modern extradition treaty with Eucador in 1872.There are about forty-two countries with which India assented bilateral extradition treaties and about 10 countries with which it has extradition arrangement such as Papua New Guinea, , Singapore, Sri Lanka, Peru, Sweden, Tanzania. In India the extradition of fugitives offender from India to foreign state or vice versa is governed by the provision of India Extradition Act, 1962 which has to be read with extradition treaties India entered into with foreign countries.


In case when extradition request is made (i) by a country with whom India does not have a common international convention and (ii) when a common international convention exists, but the extradition request corners around an offence that is not specified in that international convention, India is not obliged to honour such extradition request.


Procedure followed for extradition notably differed with countries with which formal extradition treaty exit as to the country with extradition arrangements. When extradition treaty exists, first and foremost stage obviously involves the request by the country form which accused has fled away that request may be either directly through diplomatic channels or through notice of the Interpol. It issues various types of notices to the police of its member countries to alert and to seek important information from the police of its member countries. However, Red Notices and Blue Notices are relevant notice for the purpose of Extradition. Blue notice is issued to locate, or obtain information on a person of interest in a criminal investigation. Red Notices comprise of the request for arrest of the fugitive offender for the purpose of extraditing him/her to the country where he/she is committed the alleged offence. Ministry of external affairs in India handles all extradition request.


The Supreme Court of India, in the case of Bhavesh Jayanti Lakhani v. State of Maharashtra [1], has held Red Notices to be de facto international warrants for arrest.

After receiving extradition request central government issues order for magisterial inquiry. If it deems fit magistrate then issues warrant for the arrest of fugitive offender. Arrest warrant issued by a magistrate is confirmed by an Order of central government within three months period. Last stage is the surrender of fugitive offender to the requesting state if the central government is so satisfied.


Problematic situation also arise when there exist neither extradition treaty nor any extradition arrangements. In such event the Indian Government may, treat any convention to which India and a foreign State are signatories , as an extradition treaty made by India with that foreign Nation. Such UN conventions to which India is a signatory, is the UN Convention Against Corruption ("UNCAC"), dealing with offences relating to corruption, and the UN Convention against Transnational Organised Crime ("UNCTOC"), which deals with offences relating to transnational organised crimes like trafficking.

India's Challenges in Extraditing Fugitives:

  1. Extradition is done on the basis of optional treaties between state. Also it is not the responsibility of a state as per international law.

  2. Extradition of Political criminals is not allowed. Most of the countries refuse to extradite the person charged for political crime i.e. crimes that are politically motivated or are committed for political purpose.

  3. Rule of Double criminality- Extradition is allowed only the offences is recognized as crime in both the Jurisdiction i.e. requesting and requested state.

  4. Rule of Speciality - The country which requests the extradition of accused is entitled to prosecute that person only for the crime for which he was extradited and cannot be punished for any other offence.

  5. Prosecution for the time barred by offence- A fugitive shall not be surrendered in case when the prosecution for the offence in respect of which his surrender is sought is according to the law of that State or country is time barred.

  6. It is often argued that India has weak extradition treaties.

The Indian government failed to get a favourable stance from a UK court in 1997 in the Nadeem Saifi extradition case in relation to the Gulshan Kumar murder case[2]. India has extradition treaties with about 47 countries, has managed to get only 62 accused extradited till 2015.

On 13 June 2016, the Prevention of Money Laundering Act (PMLA) court declared Mallya a "proclaimed offender "in connection with money laundering probe he faces charges of fraud and money laundering worth ₹9,000 crore. . On May 14 when Mallya lost the case, he can be extradited anytime, as all legal formalities are done. UK High Court order to extradite Mallya was regarded as a "milestone" and a good reminder that economic offenders involved in large value frauds cannot consider themselves above the process merely because they have changed jurisdictions.

Conclusion:


Law of extradition is important for maintaining peace and order in the society and it also beneficially creates a fear of punishment on the offenders who were trying to escape to other countries so that they may go unpunished . But by extradition process, they can be called back at the instance of the requesting state, prerequisite is that the offence committed by the fugitive must also be an offence in the country from where they are being extradited. It undoubtedly promotes harmony and cooperation at international level. But another fact that cannot be ignored is the whole extradition process often takes some tedious years to complete that only encourage and incite the offender to commit the crime in one state and then fled to another. Foreign States should extend their cooperative hand to each other to expediate the extradition process.


References

[1] Bhavesh Jayanti Lakhani Vs State of Maharastra Reported in (2009) 9SCC 551

[2] Gulshan Kumar Murder Case(C.R No. 572/97)


Note- The information contained in this blog is for general information purposes only. We endeavour to keep all the information up to date and try our level best to avoid any misinformation or any kind of objectionable content. If you found any misinformation or objectionable contents in this website please report us at indianlegalwing@gmail.com

34 views

INDIAN LEGAL WING

RECOGNIZED BY MSME, GOVERNMENT OF INDIA
(UDYAM- AS-22-0000196)

Hojai, Assam, 782435.

  • Indian Legal Wing
  • LinkedIn
  • Indian Legal Wing
  • Indian Legal Wing

Copyright © 2020 Indian Legal Wing - All rights reserved.