Broadly speaking: Extradition Law in India

[Profile of the Author: Harikesh Narang is a Second Year Student of Maharaja Agrasen Institute of Management Studies.]

INTRODUCTION

Extradition is the legal process of surrender of a criminal to one country by another for prosecution or punishment for crimes committed in the requesting country’s jurisdiction[1]. It is regulated by treaties between the two countries. It is important to note that the transfer from one country to another is done without the concerned person’s consent. Extradition is a process that is essential to maintain the sanctity of a country’s Penal Code. The concerned person has to be extradited to be put on trial because since the crime has been committed in the country to which he belongs, it is not possible for the other country to be put him/her for trial for the offence. International extradition is an obligation undertaken by States in good faith to promote and execute justice[2]

EXTRADITION LAW IN INDIA

In India, a fugitive criminal is governed under the Indian Extradition Act, 1962. It deals with both extradition to India and extradition from India to a foreign state. The extradition of a fugitive offender depends upon the treaties entered into it by India with other states. In India, the Ministry of External Affairs in the Nodal body that deals with extradition matters.

India has bilateral extradition treaties with 40+ countries and extradition arrangements with 10 countries. The basis of extradition could be a treaty between India. In case of an absence of a bilateral treaty for extradition, ad hoc arrangements can be entered into between the two countries through the diplomatic channel and subsequently, a request for extradition can be put up. The provisions of the act may be extended to a foreign state by a subsequent order passed by the Government of India.[3]

Under this act, any conduct by a person which is mentioned in a list of offences in the treaty signed with a foreign state or any act punishable with a minimum of one year of imprisonment under the laws of India or of under the laws of a foreign State falls under the ambit of an extradition offence.[4]

India allows extradition of nationals based on the principle of reciprocity between Indian and foreign States as agreed under the extradition treaties. Extradition is usually not granted for “political offences” or offences where the death penalty may be imposed or where there will be “double jeopardy”.[5]Extradition is applicable to only those cases in which the offence committed by the person sought to be extradited is considered as an offence in both the domestic laws of the country and the foreign state requesting for extradition.[6]

Any extradition offence committed by any person in a foreign State shall be deemed to have been committed in India and such person shall be liable to be prosecuted in India for such offence.[7] India shall have extraterritorial jurisdiction in such cases.

When two or more foreign states ask for the same individual to b extradited, the government of that country has the right to decide which country’s case is fittest after having regard for relevant factors concerned.

PROCEDURE FOR EXTRADITION

• In India, a request for extradition may be put to the Central Government through the diplomatic channel or through any mode mutually settled. Information regarding the fugitive criminals wanted in foreign countries is received either directly from the concerned country or through Interpol in the form of Red Notice.[8]
• On receiving the request, the Central Government may issue an order for Magisterial inquiry into the matter and. The magistrate may issue a warrant for the arrest of the individual after receiving relevant orders from the Central Government. In certain cases where the magistrate deems appropriate depending upon the relevant evidence, the magistrate may issue a warrant for arrest without the central government’s orders. But, the same has to be ratified by a subsequent order of the Central government within 3 months.
• The magistrate is assigned with the duty of examining the evidence by both the parties. If on examination, the magistrate is of the opinion that a prima facie case can be made to justify the extradition request, the magistrate shall submit his or her inquiry report with the relevant information to central government and may send the fugitive to prison and wait for further directions from the union government. If the magistrate is not satisfied that a prima facie case has been made, the magistrate shall discharge the fugitive offender.[9]
• If the Central government after the enquiry deems it fit, it may issue a warrant for the custody and removal of the fugitive criminal and for his delivery at a place and to a person to be named in the warrant. [10]
• Where the Central Government is of the opinion that a fugitive criminal cannot be surrendered or returned pursuant to a request for extradition from a foreign State, it may take steps on its own to prosecute such fugitive criminal in India.[11]

CONCLUSION

Today, extradition is a very essential process to bring back those accused of corruption and financial crimes to stand trial and answer for their offences.[12] It is needed to preserve the sanctity of judicial processes and ensures that “no one can outrun the long arm of the law”. Extradition is the preservation of judicial processes and it also promotes international cooperation between foreign entities. At last, extradition really plays an important role in the international battle against crime.[13]

Disclaimer: This article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns.

[1] Jonathan Masters, ‘What is Extradition?’ (Council for Foreign Relations, 8 January 2020) <https://www.cfr.org/backgrounder/what-extradition> accessed 4 June 2020

[2] Faraz Alam Sagar & Pragati Sharma, ‘India: Extradition Law: Fundamentals And Processes – Part I’ (Monday, 8 August 2019)
<https://www.mondaq.com/india/white-collar-crime-anti-corruption-fraud/834852/extradition-law-fundamentals-and-processes-part-i> accessed 4 June 2020

[3] Indian Extradition Act,1962 Section 3

[4] Indian Extradition Act,1962 Section 2(c)

[5] Aarshi Tirkey, ‘India’s Challenges in Extraditing Fugitives from Foreign Countries’ (2018) 270 ORF <https://www.orfonline.org/wp-content/uploads/2018/11/ORF_Issue_Brief_270_Extraditions.pdf> accessed 6 June 2020

[6] Sherbir Panag & Samudra Sarangi, ‘Extradition- India’ (Global Investigations Review, 19 June 2019 <https://globalinvestigationsreview.com/jurisdiction/1005815/india#:~:text=Dual%20criminality%20usually%20forms%20an,extradition%20requests%20shall%20be%20refused. > accessed 5 June 2020

[7] Indian Extradition Act,1962, Section 34

[8] Unknown, ‘Extradition’ (Central Bureau of Investigation, Unknown) < http://www.cbi.gov.in/interpol/extradition.php#et > accessed 5 June 2020

[9] Sherbir Panag & Samudra Sarangi, ‘Extradition- India’ (Global Investigations Review, 19 June 2019)
<https://globalinvestigationsreview.com/jurisdiction/1005815/india#:~:text=Dual%20criminality%20usually%20forms%20an,extradition%20requests%20shall%20be%20refused. > accessed 5 June 2020

[10] Indian Extradition Act,1962, Section 8

[11] Indian Extradition Act, 1962 Section 34A

[12] Faraz Alam Sagar & Pragati Sharma, ‘India: Extradition Law: Fundamentals And Processes – Part I’ (Monday, 8 August 2019) <https://www.mondaq.com/india/white-collar-crime-anti-corruption-fraud/834852/extradition-law-fundamentals-and-processes-part-i> accessed 5 June 2020

[13] Unknown, ‘Extradition’ (Central Bureau of Investigation, Unknown) < http://www.cbi.gov.in/interpol/extradition.php#et > accessed 5 June 2020