Vijay Mallaya’s arrest in UK has once again brought to the limelight the law of extradition. How the UK Court decides the extradition request is something that would be interesting to follow. There are various grounds available to Mr.Mallaya to challenge the legality of the extradition request and escape extradition. Conversely, with the level of uproar within the country, CBI would also want to give its best shot and try and argue the validity of its request and seek extradition. If this extradition takes place, it would be the first in many respects. Whether the same is likely to be allowed or not, is yet to be seen. But here is a primer on how the extradition law operates :
1. WHAT IS EXTRADITION ?
Jurist Oppenheim defines Extradition as :
Extradition is a delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed or to have convicted of a crime, by the State on whose territory the alleged criminal happens to be for the time.1
2. NEED AND UNDERLYING PHILOSOPHY OF THE LAW OF EXTRADITION.
Crime is increasingly turning international. Many serious offences now have cross border implications. Even in cases of traditional crime, criminals frequently cross borders in order to escape prosecution. According to traditional principle of territoriality of Criminal Law, a State will not usually apply its criminal law to acts committed outside its own boundaries. However, there is a growing recognition that states should show solidarity in repression of criminality and co-operate in the international battle against crime. Though States refuse to impose direct criminal sanctions to offences committed abroad (except exceptional situations of extraterritorial jurisdiction), the states are usually willing to cooperate with each other in bringing perpetrators of crime to justice.
Therefore, in view of the growing internationalisation of crime, porous borders, easy mobility, a need was felt to co-operate in legal processes for transfer of criminals, with a view to ensure that no crime goes unpunished and the rule of law is upheld. The device of extradition therefore, evolved under the principle of comity of nations whereby one State surrenders a criminal to the other state for bringing him to justice in country in whose jurisdiction offence was committed. It was realised that trial for a crime ought to be conducted in the vicinity of the crime; this not only enables easy availability of evidence, but a crime punished in the very vicinity of the original offence sends out a strong signal of deterrence and restores societal equilibrium, which the crime had upset.
Extradition, therefore, is a means to resolve two apparently conflicting principles – first being that – criminal jurisdiction extends only to offences committed within geographical boundaries; Secondly, the rule that frowns over a crime/criminal going unpunished on account of jurisdictional reasons.
The law of extradition attempts to dovetail the competing imperatives of comity of nations (respect for a foreign court) on one hand, and international crime control on the other. It ensures harmonisation of these two principles, while at the same time, guaranteeing due process and protection of basic human rights of fugitives, and protection from persecution, cruel punishment, inhuman treatment and torture. Extradition law seeks to achieve this balance by laying down a procedure that is to be satisfied prior to surrender. These procedures reflect a zealous approach with respect to protection of personal liberty and the right to life. This includes a judicial inquiry by a Magistrate, followed by a decision of the Central Government. There are certain guidelines as to the exercise of this power within the Extradition Act and treaty obligations with specific states.
This article is an attempt to give an aerial view of the law relating to extradition, basic principles, procedure and considerations governing extradition of fugitives.
3. INDIAN EXTRADITION LAW
In India, the extradition of a fugitive from India to a foreign country or vice versa is covered by the provisions of the Extradition Act, 1962 which forms the extant legislative basis for this area of law. The act lays down the first principles of extradition law. The obligation to extradite springs out of treaties/arrangements/conventions entered into by India with other countries. Under Section 3 of the Extradition Act, a notification can be issued by the Government of India extending the provisions of the Act to the countries notified. Therefore, for a comprehensive understanding of the law of Extradition, one has to read the Extradition Act in conjunction with specific treaties/arrangements/conventions entered into with various states.
4. EXTRADITION TREATY
Extradition treaty, as per Section 2(d) of the Extradition Act means ‘a treaty, agreement, or arrangement with a foreign state relating to extradition of fugitive criminals’. An extradition treaty also spells out the conditions precedent for an extradition. It also includes a list of crimes which are extraditable.
It is important to note that even in absence of a treaty, extradition may be permitted if it has the backing of the principle of reciprocity. (The principle of reciprocity will be discussed in greater detail a little later in the article) Suffice would it to say here that the primary consideration for the request of extradition is the assurance of reciprocity. This principle has been upheld in a number of cases 2
(For a list of countries with whom India has extradition treaties/arrangements, click here : http://cbi.nic.in/interpol/extradition_treaties.php)
The next question that arises is – what happens in cases pre-independence treaties ?
The answer to this is provided in Section 9 of the Indian Independence Act, 1947 and Indian Independence (International Arrangements) Order, 1947. It is made clear by these provisions that all international agreements to which India (or more appropriately, British India) was a party would devolve upon the Dominion of India and Dominion of Pakistan and if necessary, the obligations and privileges should be apportioned between them. As far as extradition treaties generally are concerned, the provisions of Section 2(d) of the 1962 Act have been made applicable to all such treaties entered into prior to Independence.3 These treaties, therefore, bind post-independence India too.
5. BASIC PRINCIPLES GOVERNING EXTRADITION
5.1 Principle of relative Seriousness of the offence – Extradition is usually permissible only for relatively more serious offences, and not for trivial misdemeanours or petty offences. For instance, the extradition treaty between US and India permits extradition only for those offences which are punishable with more than one year of imprisonment (apart from the condition of dual criminality, which will be dealt a little later).
5.2 Principle of Reciprocity in exchange of fugitives between requesting and requested State;
5.3 Principle of Dual Criminality : This is the most important principle governing Extradition Law. This requires that the offence that the fugitive is alleged to have committed, should be an offence both in the requesting as well as the requested state (however, it may be noted that this refers to the substance of the offence and not the nomenclature given to it in a specific country, which may vary). For instance : In Quattrocchi’s case – the request for extradition was declined as the CBI had not filed the requisite documents making out a specific case for extradition and had not satisfied the court as to the basic requirement of ‘dual criminality’. To satisfy oneself as to the requirement of dual criminality, one has to examine the treaty between the two countries and see if the offence in question finds mention there.
5.4 Existence of prima facie case4 against the fugitive : This is a safety valve to ensure, at-least on broad probabilities, the existence of a triable case against the fugitive. This is sought to be ensured by a magisterial inquiry that is to precede the actual surrender/extradition. If the case lacks merit on the face of it, extradition may be disallowed at the very outset.
5.5 Principle of proportionality between offence and sentence : Requesting state should respect the principle of proportionality between offence and sentence and punishment for that particular crime should not be excessively harsh or inhuman, in which case extradition request may be declined. The possibility of a death sentence to the fugitive by the requesting state usually leads to the extradition request being turned down or allowed only after an assurance from the requesting state that death penalty will not be carried out.
5.6 Whether the fugitive is seeking asylum from political persecution and trial for an offence of a political character : This requires an enquiry into whether the accused is likely to suffer political persecution or death sentence in the requesting country. In such cases extradition is disallowed. For instance, in the Indian Context, the provision of death penalty in India and alleged human rights violations in prisons/police torture have proved to be major hurdles in acceding extradition requests from India to other countries, especially the UK with the European Commission on Human Rights (ECHR) taking a strict note of the same.5
5.7 Possibility of fair trial in requesting state, post surrender – Before an extradition request is processed, it should be ensured that post-surrender the fugitive will get a fair trial in the requesting country. However, it may be noted that this entails only a broad examination of judicial procedures in the requesting state. This principle also needs to be read subject to the principle of non-inquiry, which stipulates that the judicial process in the requesting country is not to be subjected to finicky evaluations and fairness of judicial procedure in requesting country is not to be normally questioned.6 However, this is not an absolute principle and the requested state may question the procedure of the requesting state if the same is prima facie contrary to fundamental principles of justice and there is a high risk of fugitive being prejudiced by the process of extradition.7 The apprehension of denial of fair trial has to be substantiated with cogent material. In a case where a man chose to reside in USA, received his education and worked there, was not allowed to plead threat or denial of fair trial in US in order to evade extradition.8 In the context of extradition from UK, issues such as human rights violations in jails, minority rights, possible political motivation, have weighed heavily with UK authorities in not acceding to extradition requests made by India. 9
5.8 Rule of specialty, that is to say, when a fugitive is extradited for a particular crime, he can be tried only for that crime. If the requesting state deems it desirable to try the extradited fugitive for some other offence committed before his extradition, the fugitive has to be brought to the status quo ante, in the sense that he has to be returned first to the State which granted the extradition and fresh extradition has to be requested for the crime for which the fugitive is sought to be prosecuted.
These are some of the overarching principles cutting across almost all treaty/convention/agreement obligations with various countries. With these fundamental concepts in mind, let us proceed to some specifics.
6. WHAT IS AN EXTRADITION OFFENCE ?
Section 2(c) defines Extradition Offence as :-
- Offence provided in the extradition treaty with the foreign states; (with respect to treaty states)
- an offence punishable with imprisonment not less than one year under India Law or law of a foreign state. (non treaty states)
- Composite offence – offence committed wholly, or in part, in India and Foreign State, which would constitute an extradition offence in India.
7. WHO MAY BE EXTRADITED ?
A fugitive criminal may be extradited. A fugitive criminal as Per S.2(f) is a person who :
- Who is accused or convicted of an extradition offence committed within the jurisdiction of a foreign state;
What about a person abetting/participating in the commission of an offence in a foreign state, from within the shores of India?
- Such person is also liable to be extradited and is included within the expansive definition of a ‘fugitive criminal’. S.2(f) of the Extradition Act further applies to :
- a person who, while in India : conspires,
- attempts to commit
- participates – as an accomplice in the commission of extradition offence in a foreign state.
- Therefore, a person in India, attempting/conspiring/abetting the commission of the offence from within the shores of India, is also covered in the definition of a ‘fugitive criminal’ and liable to be extradited.
8. PROCESS OF EXTRADITION
8.1 Receipt of Information
The process of extradition is set into motion by the receipt of Information/Requisition regarding fugitive criminals wanted in foreign countries. This information may be received :-
- Directly from diplomatic channels of the concerned country (along with the necessary information relating to the offence and the fugitive); or
- General Secretariat of ICPO-Interpol in the form of red notices;
- Other settled modes of communication.
Legality of arrest in Pursuance of a Red Corner Notice issued by Interpol :
- The Interpol Wing of the CBI is the agency which receives the information and passes it onto the concerned police organisations. All the red notices received are circulated to all State Police Authorities and immigration authorities. However, as held by the Supreme Court in Bhavesh Jayantilal Lakhani v. State of Maharashtra10 – arrest in India is not automatic in case of red corner notice and fugitive criminal can only be apprehended according to the provisions of the 1962 Extradition Act. The situation will, however be different in case of an endorsed warrant, that is to say, where a warrant has been issued by a foreign country against a fugitive in India, and India has an extradition treaty with that foreign country and offence complained of is a extraditable offence, in that case the Central Government has to endorse that warrant and the same can be executed thereafter as per S.17 of the Extradition Act.
- A Red Corner Notice per se does not give it a status of warrant of arrest; It is merely a request of issuing authority to keep surveillance on the person and provisionally or finally arrest the wanted person for extradition. Therefore, by itself, a red corner notice cannot be the basis of arrest or transfer of an Indian Citizen to a foreign jurisdiction, though issue of red corner notice has several consequences like –
- Requesting country may make a deportation request (governed by the Foreigners Act);
- law enforcement agency in India is required to take up follow action with regard to arrest of the fugitive criminal;
- information emanating from the red corner notice is required to be distributed all over Interpol website;
- extradition proceedings may follow. 11
The court further ruled that Municipal laws of a country reign supreme in matters of extradition. It is for the State concerned to take decision in regard to red corner and yellow corner notices12, keeping in view municipal laws of the country. It is wrong to say that a red corner notice issued by Interpol should not be tinkered with. When a person complains of a violation of his fundamental rights, he is entitled to judicial review, which is exactly what happened in the following case :-
8.2 Magisterial Inquiry
- Where a requisition is received, the Central government may order an enquiry by a magistrate directing him to enquire into the case. The initial inquiry by the Central Government before ordering a magisterial inquiry need not be a detailed one13 No pre-decisional hearing is required to be given to the fugitive before ordering magisterial enquiry 14 The function of the Magistrate under this Section is quasi judicial in nature. The magistrate directed to proceed with the enquiry need not have territorial jurisdiction.15
- On receipt of order, the Magistrate shall issue a warrant of arrest of the fugitive criminal;
- Once the fugitive criminal appears, or is brought before Magistrate pursuant to the warrants, the magistrate inquires into the case.
- By inquiry it is meant that the Magistrate shall :
- take such evidence as may be produced in support of the requisition of the foreign state;
- take such evidence on behalf of the fugitive criminal, including any evidence to show that offence for which the fugitive criminal is accused or convicted is not a extraditable offence.
The word ‘evidence’ used here is not be construed as evidence in its strict legalistic sense and must be read in context of Section 10 of the Extradition Act.16 The Magistrate can receive depositions, exhibits, documents in evidence during the inquiry. Judicial documents stating facts, if duly authenticated, are also receivable in evidence. This includes depositions/orders of foreign courts. It is also well established that the requesting state has the locus standi in extradition proceedings considering it has a stake in success of extradition proceedings. Therefore, the requesting state may become party to and participate in the inquiry proceedings.
Scope of Inquiry
In the inquiry, the magistrate has to satisfy himself as to the existence of a sound basis and material, which justifies the extradition of the person sought to be extradited. The enquiry before the magistrate cannot be converted into a full fledged trial of the offence for which the extradition of the fugitive is sought. By the inquiry, the magistrate has only to find out if, based on the evidence and material produced in support of the requisition of foreign sate and that produced by the fugitive, a prima facie case is made out in support of the requisition or not. No formal trial is to be held. The accused, however, can lead evidence to prove that the offence is not extraditable or of a political character; however, he does not have an unfettered right, which can be extended so as to allow him to lead any evidence or examine any number of witnesses, whether relevant or irrelevant or which have no nexus with the matter and does not advance the case of the petitioner in any way. The Delhi High Court in Kamlesh Babulal Aggarwal17 has equated the extent of scrutiny in inquiry to that akin to framing of charge. Even a strong suspicion founded upon material and presumptive opinion would enable the court to recommend extradition.
The word ‘evidence’, therefore, has to be given a reasonable interpretation and has to be read to mean evidence necessary to and relevant to the prima facie enquiry and nothing more. It should be reiterated that the inquiry envisaged under the Act culminates in a report, and not a finding of guilt or innocence of the fugitive.
What happens if the ‘extradition offence’ is one which is triable by a Court of Sessions and not a Magistrate. Whether in such cases too, it is the Magistrate who has to conduct the inquiry ?
The answer is Yes. This does not prevent the magistrate from going ahead with the enquiry. Even if the extradition offence is triable by a Sessions Judge/Special Judge as per the law of India (had it happened in India), the Magistrate is deemed to be having the power to inquire into such a case. This is borne out from the legal fiction18(deeming provision) provided under Section 7(1) of the Extradition Act.19
9. PROVISIONS RELATING TO BAIL
- The option of anticipatory bail as well as regular bail is available to the accused fugitive criminal. For the purposes of this section, the Magistrate is vested with the same powers and jurisdiction as Court of Session under the Code of Criminal Procedure, 1973 (hereinafter “Cr.P.C”).
- As regards power to seek cancellation of Non-Bailable Warrants during the pendency of the Extradition Proceedings : The Madras High Court in State v. Subhash Chandra Kapoor20 has ruled that the same cannot be permitted, and only option that the accused has is to seek discharge from Central Government Under Section 29 of the Extradition Act.
10. PROVISIONS RELATING TO PROVISIONAL ARREST
Section 34B of the Extradition Act, provides that on receipt of a urgent request from a foreign state, the Central Government may request the Magistrate to issue an immediate provisional warrant for the arrest of fugitive criminal. As per Section 34-B(2) – A fugitive criminal arrested under sub-section (1) shall be discharged upon the expiration of sixty days from the date of his arrest if no request for his surrender or return is received within the said period. This has judicially been held to be a non-derogable time limit and the magistrate has no jurisdiction to extend this period further or direct the government to take steps as per Extradition Act.21
11. ARREST WITHOUT ENDORSED OR PROVISIONAL WARRANT
As per the Judgment in Salwant Singh Sadhu22 – Action can also be taken under the provisions of Section 41 (1) (g) of the Cr.P.C., 1973 which authorize the police to arrest a fugitive criminal without a warrant. However, in such a case, they must immediately refer the matter to Interpol Wing for onward transmission to the Government of India for taking a decision on extradition or otherwise. In absence of there being a follow-up extradition request, the person will be discharged and cannot be kept in detention. The court held that the same cannot be done, as Section 41(1)(g) is applicable only on the condition that the offence committed at any place out of India should be counted as an offence by Indian Law. This provision cannot be pressed into service when there is a Red Corner Notice. The consequence of the Red Corner Notice is that the requesting country may make deportation request or to take follow up action with regard to the arrest of fugitive Criminals. However, the main criteria is that the Extradition proceedings has to follow. Under Section 9 of the Act, the Magistrate may issue a warrant of arrest. Therefore, in absence of a formal request by the requesting state i.e Srilankan Government for the extradition of the Petitioner – registration of First Information Report under Section 41(1)(g) of Cr.P.C is not proper. With these remarks, the proceedings against the petitioner were quashed.
12. CONCLUSION OF MAGISTERIAL INQUIRY
The inquiry by the Magistrate may result either in :
- Discharge of the fugitive – If the magistrate is of the opinion that no prima facie case is made out in support of the requisition of foreign state; or
- Positive finding in favor of extradition – If prima facie case is made out, the magistrate may commit the fugitive criminal to prison to await the orders of the Central Government, and shall report the result of his inquiry to the Central Government, and shall forward together with his report, any written statement that fugitive criminal may desire to submit for the consideration of the Central Government.
13. DECISION ON SURRENDER OF FUGITIVE CRIMINAL BY THE CENTRAL GOVERNMENT.
Under the scheme of the Act, both the magistrate and the Indian Government, which makes the executive decision in respect of extradition, must bear in mind the substantive restraints on the extradition power (sections 29 and 31).
If, the Central Government, on receipt of report of the Magistrate, and statement of the accused, is of the opinion that the fugitive ought to surrendered to the foreign state, it may issue a warrant for the custody and removal of the fugitive criminal and for his delivery at place and to a person to be named in the warrant.
WHAT HAPPENS TO THE FUGITIVE IN CASE THE EXTRADITION REQUEST IS TURNED DOWN ? DOES THE FUGITIVE ESCAPE PROSECUTION TOTALLY ?
No. In case the Central Government is of the option that the fugitive criminal cannot be surrendered/returned pursuant to a request, it may, as it thinks fit, take steps to prosecute such fugitive criminal in India. (S. 34A of Extradition Act).
Now, the next question that logically arises is : whether the government of India can try the fugitive for an offence that has admittedly occurred beyond its territorial jurisdiction ?
Yes. This is made possible by way of a legal-fiction engrafted under Section 34, which, for such limited purposes, deems such offences to have been committed in India. Such extra-territorial application of law by legal fiction is put in place to ensure that, merely because of the fact extradition is not granted in a particular case for some reason, the fugitive should not escape punishment altogether.
This proceeds upon the internationally established principle of ‘aut dedere aut judicare”, which, simply put, means ‘either extradite or to punish’. As noted in the Final Report of the International Law Commission (2014) on “the obligation to extradite or prosecute” (aut dedere aut judicare):
“The role the obligation to extradite or prosecute plays in supporting international cooperation to fight impunity has been recognized at least since the time of Hugo Grotius, who postulated the principle of aut dedere aut punire (either extradite or punish):
‘When appealed to, a State should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal.’
The modern terminology replaces “punishment” with “prosecution” [aut dedere aut judicare] as the alternative to extradition in order to reflect better the possibility that an alleged offender may be found not guilty.
In other words, if a State is unwilling to extradite a fugitive criminal, it should undertake the responsibility of prosecuting him or her, the theory being that a criminal should not go unpunished.
14. CONSIDERATIONS TO BE KEPT IN MIND BY THE CENTRAL GOVERNMENT WHILE DECIDING QUESTION OF SURRENDER/EXTRADITION AND RESTRICTIONS ON EXERCISE OF SUCH POWER.
As per Section 31, A fugitive criminal shall not be surrendered or returned if :
- the offence complained of by the foreign state, is of a political character, directly, or his requisition/warrant, is made for an apparently non-political offence, merely as subterfuge to infact punish him for an offence of Political Character (Schedule to the Extradition gives a list of offences, which are not to be regarded as offences of a political character for the purposes of the Act);
- prosecution of the offence is time barred in the foreign state;
- he/she is accused of any offence in India other than the offence for which the extradition is sought;
- he/she is undergoing sentence under any conviction in India;
- until expiration of 15 days from the date of his being committed to prison by magistrate (post inquiry u/s 5 of the Act);
15. WHETHER ON EXTRADITION TO INDIA FROM A FOREIGN STATE, A FUGITIVE CAN BE TRIED FOR AN OFFENCE OTHER THAN THE ONE WITH RESPECT TO WHICH EXTRADITION IS GRANTED ?
The answer is No. Section 21 of the Extradition Act places an embargo on trial of a fugitive for any offence other than the extradition offence. The exceptions to this rule are cases where the fugitive is in fact charged for an offence which is a minor cognate offence of the offence charged originally, or where the foreign court gives its consent to the charge for the newer offence. This is in accord with the principle of speciality as discussed earlier in the paper.
16. ARE EXTRADITION, DEPORTATION AND EXCLUSION THE SAME ?
No. In deportation, a person is ordered to leave a country and is not allowed to return to that country. In exclusion, a person is prohibited from staying in a particular part of a sovereign state. Deportation and Exclusion are non-consensual orders that do not require a treaty obligation, whereas extradition depends on existence of treaty or some other arrangement between two States. Extradition is resorted to in cases of serious offences and is governed by the Extradition Act.23 As opposed to this, deportation is governed by the Foreigners Act, 1946, read along with orders/notifications and is essentially a governmental decision with little judicial review permissible.
Needless to state, Extradition and Deportation find themselves at cross roads in a variety of situations. One such instance is Section 31(1)(d) of the Extradition Act, which reads as ::
“A fugitive criminal shall not be surrendered or returned to a foreign State or commonwealth country…if he has been accused of some offence in India, not being the offence for which his surrender or return is sought, or is undergoing sentence under any conviction in India until after he has been discharged, whether by acquittal or on expiration of his sentence or otherwise.”
On a plain reading this will also apply to offences under the Foreigners Act, 1946, since there is a clear embargo on extradition for as long as the accused is not discharged, acquitted or released after the expiration of a sentence in the other case.
However, this is where Section 33 of the Extradition Act comes into the picture. It begins with a non-obstanteclause, and lays down that nothing in this act that shall work to prevent the Indian government from using its powers under the Foreigners Act, 1946 to deport a person. Therefore, a fugitive can be deported even though he is undergoing sentence in a prosecution in India.
The non-obstante clause in section 33 enlarges the power of deportation under the Foreigners Act and allows the government to circumvent the considerations in the Extradition Act and allow deportation. This may allow the government to actually extradite the person, under the guise of deportation. This may be construed to allow the government to deport a person even in the absence of an inquiry by a magistrate, and even when no prima faciecase exists against him, or even where his deportation may entail a trial for a political offence. These ‘disguised extraditions’24 may amount to denial of due process and circumvention of the beneficial provisions of the Extradition Act.
The judicial trend has been to uphold the State’s sovereign power to deport and courts seldom embark on a judicial review of deportation. Jurisprudence needs to develop on this count to ensure that power of deportation is exercised in a just, fair and reasonable manner (in order for it to pass constitutional muster) and not colorably as a cover-up for a disguised extradition.
17. EXTRADITION REQUEST FROM AN INDIAN COURT TO A FOREIGN COURT.
Section 105 of the Cr.P.C stipulates that the Court desiring to issue summons/warrant to any person residing in any country/place outside India, has to send the summons to the authority in the foreign country notified by the Central Government in this regard. This notification is usually carried out through what is known as a Mutual Legal Assistance Treaty (hereinafter “MLAT”). India has MLATs with various countries. The authority notified under the MLAT is entrusted with the task of facilitating service of Summons/Warrants in the foreign country.
In order to secure the appearance of an accused, the courts usually resort to issuance of summons in the first instance. Pursuant to the service of summons if the accused fails to appear or there are other circumstances which provide a reason to believe that the accused is trying to avoid the process of law, the court may proceed to issue warrants. Since the issuance of Warrants has coercive consequences insofar as the accused may be arrested and brought before the court, issuance of warrants shall trigger an extradition request. Extradition request by an Indian Court has to be routed through the Ministry of Home Affairs which is sent through the concerned Indian Missions/Embassies in the foreign country. In case of MLAT countries, the mode and manner of communication as laid down in MLAT is to be followed. For instance, in the case of an extradition request to the US, the request for extradition has to be supported by documents, statements which describe the identity, probable location of the person sought. The request also has to be supported by information describing the facts of the offence and procedural history of the case. In addition to this, a statement of the provisions of law describing the essential elements of the offence/punishment is also required. The request for extradition also has to be accompanied with a copy of the warrant/order of arrest issued by the judge, charging document (if any). Once the extradition request is made in conformity with the provisions of the MLAT, the foreign government takes a decision on the same, broadly on the same principles as highlighted above such as dual criminality, rule of specialty et al and a judicial inquiry may also precede grant or denial of such a request.
Extradition is a great step towards international cooperation in the suppression of crime. States should treat extradition as an obligation resulting from the international solidarity in the fight against crime. With the growing internationalisation of crime and judicial developments, extradition law is in a state of great flux. The courts are grappling with myriad issues including : interpretation of treaties and arrangements vis-a-vis municipal extradition law, balancing of due process versus principle of adherence to comity of courts, the effect of a red corner notice, the role of international agencies, the interface of powers of deportation with extradition, etc. Jurisprudence in the area of extradition law is evolving at a rapid pace and it is hoped that the Indian Judiciary will match up to global standards and resolve the extremely vexing legal challenges posed to it.
This article has been co-authored by Anirban Bhattacharya, Partner & Bharat Chugh, Counsel at Luthra and Luthra Law Offices, New Delhi. Anirban and Bharat have advised in one of the most complex extradition cases in India and abroad.
1. Oppenheim’s International Law, seventh edn, p 631
2. Marie-Emmanuelle Verhoeven v. Union of India and Others (2016) 6 SCC 456
3. Marie-Emmanuelle Verhoeven (supra); Also see : Rosiline George v. Union of India, (1994) 2 SCC 80. Questions relating to Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 ICJ Reports 422; Also see : Abu Salem Abdul Qayoom Ansari v. State of Maharashtra, (2011) 11 SCC 214.
Section 2(d) of Extradition, “extradition treaty” ..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;
4. “Prima Facie” has a definite connotation in law. It is defined as “at First Sight”; as “accepted as so until proved otherwise” or “on face of it” or “So far as it be judged from the first disclosure”. For a discussion on concept of ‘prima facie’ see Kamlesh Babulal Aggarwal v. UOI, 2008 SCC OnLine Del 533.
5. Her Majesty’s Knights in Sullied Armour, Bhavna Vij-Aurora, Outlook, November-14, 2016.
6. Schmidt Case(1987) 1 SCR 500
7. Abu Salem Abdul Qayoom Ansari v. State of Maharashtra & Anr. (2011) 11 SCC 214.
8. Kamlesh Babulal Aggarwal v. UOI, 2008 SCC OnLine Del 533.
9. Her Majesty’s Knights in Sullied Armour, Bhavna Vij-Aurora, Outlook, November-14, 2016.
10. (2009) 9 SCC 551
11. (2009) 9 SCC 551
12. Issued in case of missing persons.
13. Pragnesh Desai v. Union of India and Anr, (2004) ILR I Del 95 (DB).
14. Nina Pillai (Smt) & Ors. v. UOI (1997) Cr LJ 2358 (Del)
15. Section 5 of Extradition Act overrides principle of jurisdiction laid down in Cr.P.C- see Rosiline George v. Union of India, (1994) 2 SCC 80.
16. Sarabjit Rick Singh v. UOI (2008) 2 SCC 417.
17. Kamlesh Babulal Aggarwal v. UOI, 2008 SCC OnLine Del 533.
18. Legal fiction is a supposition of law as against facts.
19. Flemming Ludin Larsen v. Union of India (1999) 105 Cr LJ 526 (Del).
20. State v. Subhash Chandra Kapoor, 2012 SCC OnLine Mad 1801
21. Bansil Mutei Shiblaq v. Union of India and Ors. (2007) SCC OnLine Del 562.
22. Salwant Singh Sadhu v. State of Delhi and Others, 2001 SCC OnLine Del 442. Also see: Mohammed Zubair Fauzal Awam v. State (Represented by the Inspector of Police & Anr), 2011 CRI LJ 2975: where applicability of Section 41(1)(g) of the Cr.P.C without a formal extradition request was held to be improper.
23. Abu Salem Abdul Qayoom Ansari v. State of Maharashtra (2011) 11 SCC 214.
24. See O’Higgins “Disguised Extradition – The Soblen Case” 27 Mod. L. Rev. 521 (1964), and Thornberry “Dr. Soblen and the Alien Law of the United Kingdom” 12 ICLQ 414 (1963).