Extradition Law in India

An analysis of the laws of India and the policies of the Government with regards to extradition. The article discusses the procedure of extradition to extradite offenders from India to a foreign State and from a foreign State to India while providing a list of countries with which India holds extradition relationship.

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Every time an offender stealthily leaves India to take refuge in another country, the Government of India starts all over again with its strategy of bringing him back to the nation to make him stand in a trial and punish him for his offence. The biggest question that pops up in such a situation is that of extradition and whether such a relationship exists between India and the nation where the offender has taken refuge. Recently, many cases of bank fraud and white collar crimes have brought the focus to this topic. This article studies the extradition law of India, its extradition treaties and extradition arrangements with other nations.

What is Extradition?

Britannica defines "extradition" as "the process by which one state, upon the request of another, effects the return of a person for trial for a crime punishable by the laws of the requesting state and committed outside the state of refuge."

Therefore, as part of the extradition process:

  • Two nations mutually agree for the return or surrender of an offender.
  • In such cases, one of the nations has the offender in its custody or under its refuge, while the other nation requests for the transfer of his custody to itself so as to try him for an offence punishable under its laws.
  • It is carried out for crimes punishable by the laws of the requesting country and committed outside the jurisdiction of the country where such person has taken refuge.
  • Generally, extradition is carried out as per the provisions of the “extradition law” of a country read with the “extradition treaty” or “extradition arrangement” that it has with other countries.
  • Such acts, treaties and arrangements are mostly bilateral in nature and are signed by taking into account the divergent laws of the two nations. They specify extraditable crimes and lay down detailed procedures and safeguards whilst defining the relationship between the act and the treaty.
  • Difference between Extradition Treaty and Extradition Arrangement - An extradition treaty is binding and both the countries are obliged to act according to the provision of the treaty. An extradition arrangement means that the offender’s detention would be determined by the local extradition laws of the country in which he has taken refuge and he can be extradited as per international regulations and agreement reached between the concerned States.

 

Extraditable persons may include:

  • Persons charged with a crime but not yet tried.
  • Persons who have been tried and convicted but have escaped custody.
  • Persons convicted in absentia.

 

The Extradition Act, 1962

In India, extradition is regulated by The Extradition Act, 1962 (the Act).

  • Extradition Treaty – The Act provides the definition of “extradition treaty” under section 2(d) as "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 Offence – The Act, under section 2(c), provides the definition of "extradition offence".
    • In relation to a State with which an extradition treaty has been signed, extradition offence is an offence provided for in the extradition treaty with that State.
    • In relation to a State with which an extradition treaty has not been signed, extradition offence is an offence punishable with imprisonment for a term which is not less than one year under the laws of India or of a foreign State. This also includes a composite offences.
  • Composite Offence – Composite offence, under section 2(a), is an offence from an act or conduct, which has occurred wholly or partially in India or in a foreign State, but when its effects or intended effects are taken as a whole, they constitute an extradition offence in India or in that foreign State.
  • Section 34 of the Act stipulates that an extradition offence committed by a person in a foreign country is deemed to have been committed in India and that person is liable to be prosecuted in India for that offence.
  • In cases where no extradition treaty exists with a foreign country, the Central Government may deem any international convention to which India and that country are common parties as an extradition treaty for the offences specified in that convention. For example, India is party to International Convention for the Suppression of Terrorist Bombings, United Nations Convention against Transnational Organised Crime and its three protocols, and the United Nations Convention against Corruption. As such, India can extradite an offender taking refuge in a country which is party to any of these conventions.

 

Limitations on Extradition

  • India does not honour an extradition request in the following cases:
    • If the extradition request is made by a country which does not share a common international convention with India.
    • Where the extradition request is made by a country which shares a common international convention with India but the extradition request is related to an offence that is not set out in that international convention
  • According to Section 31 of the Extradition Act an offender is not returned or surrendered to a foreign State under the following circumstances:
    • The offence for which extradition has been requested by the foreign State is of a political character.
    • The offence for which extradition has been requested is barred by time according to the laws of the requesting foreign state.
    • The offender has been accused of an offence in India, other than the original extradition offence.
    • The offender is already serving a prison sentence in India.
  • Section 34A provides that if the Government of India is of the opinion that a fugitive criminal cannot be surrendered or returned, it may decide to prosecute that fugitive criminal in India.

 

Extradition Treaties between India and Other States

The Ministry of External Affairs (MEA) on behalf of the Government of India acts as the central authority with regards to extradition treaties, arrangements and requests.

As per section 3 of the Extradition Act, the Central Government may issue a notification to extend the provisions of the Act to the country or countries notified.

According to the MEA, India has signed extradition treaties with 47 nations and has extradition arrangements with 11 nations. A full list of all the States with which India holds extradition relationship is given in the tables below.

India currently has extradition treaties in force with the following countries:

S. No.CountryYear of Treaty
1Afghanistan2016
2Australia2008
3Azerbaijan2013
4Bahrain2004
5Bangladesh2013
6Belarus2007
7Belgium1901
8Bhutan1996
9Brazil2008
10Bulgaria2003
11Canada1987
12Chile1897
13Egypt2008
14France2003
15Germany2001
16Hong Kong1197
17Indonesia2011
18Iran2008
19Israel2012
20Kuwait2004
21Lithuania2017
22Malaysia2010
23Mauritius2003
24Mexico2007
25Mongolia2001
26Nepal1953
27Netherlands1898
28Oman2004
29Philippines2004
30Poland2003
31Portugal2007
32Russia1998
33Saudi Arabia2010
34South Africa2003
35South Korea2004
36Spain2002
37Switzerland1880
38Tajikistan2003
39Thailand2013
40Tunisia2000
41Turkey2001
42UAE1999
43UK1992
44Ukraine2002
45USA1997
46Uzbekistan2000
47Vietnam2011

Source: Ministry of External Affairs

India currently has extradition arrangements in force with the following countries:

S. No.CountryYear of Treaty
1Antigua & Barbuda2001
2Armenia2019
3Croatia2011
4Fiji1979
5Italy2003
6Papua New Guinea1978
7Peru2011
8Singapore1972
9Sri Lanka1978
10Sweden1963
11Tanzania1966

Source: Ministry of External Affairs

Principle of Double Criminality

The principle of dual criminality is the essence of extradition. It implies that a crime for which extradition is being sought must be a crime in both the requesting and the requested country. Any extradition treaty being entered into between India and any foreign State requires the principle of double criminality to be satisfied before granting extradition requests. Specifically, the substance and elements of the offence are of utmost importance when an extradition treaty has to be signed.

Procedure of Extradition

In India, the process of extradition is partly administrative and partly judicial. The process is also different for both – extradition of an offender from India to a foreign state and extradition of an offender to India from a foreign state.

A.    Extradition of an Offender from India to a Foreign State

1) Extradition Request
An extradition request in one of the following modes kicks-off the extradition proceeding in India:

  • through diplomatic channels between India and the requesting country
  • red notice received by the General Secretariat of Interpol
  • other settled modes of communication

2) Judicial Inquiry

Once the extradition request has been received, the Central Government issues an order to jurisdictional Magistrate to issue a warrant for the arrest of the offender. This Magistrate is generally the Magistrate of First Class who would have had jurisdiction to enquire into the offence if it had been committed locally.

Based on the evidence placed before him, the Magistrate decides whether a prima facie case can be made out against the offender and issues a warrant. Once the offender appears before the Magistrate, the Magistrate enquires into the case by examining the evidence presented in support of the extradition request and the evidence presented against it by the offender. If the Magistrate is satisfied, he issues instructions to imprison the offender and sends his report of inquiry to the Central Government, which confirms it with an order.

3) Removal to the Foreign State

At any time after the offender has been imprisoned, the Central Government may issue a warrant for custody and removal of the offender to the foreign State at the place and to the person specified in the warrant.

B.    Extradition of an Offender to India from a Foreign State

1) According to the Comprehensive Guidelines for Investigation Abroad and Issue of Letters Rogatory (LRs) issued by the Ministry of Home Affairs for causing investigation abroad, extradition requests can be after the following conditions have been fulfilled

  • Filing of Charge Sheet
  • Cognisance of the charge sheet by a Judicial Magistrate
  • Issuance of an arrest warrant seeking and justifying the presence of the accused at the trial

 

2)    Following this procedure, the request for extradition is made to the Ministry of External Affairs. The request is in the form of a self-contained affidavit issued by the Magistrate, making out a prima facie case against the accused. For this purpose, the Magistrate provides:

  • Facts of the case
  • Statement of witnesses and documentary evidence
  • Provisions of law that have been invoked, specifying the offences with which the accused has been charged and the maximum sentence for that offence.
  • Description and identity of the accused
  • Justification of the accused person’s committal to trial based on the evidence in the charge sheet.
  • Direction seeking to secure the presence of the accused in that Court for the trial
  • Copy of the First Information Report (FIR)

3)    Finally, with this request, the Magistrate provides the original and open-dated warrant of arrest of the offender in the foreign State, which is then sent to that State with the request of the Ministry of External Affairs to extradite that offender to India.

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