EXTRADITION LAWS AND TREATIES IN INDIA: Overview

Profile of the author: Sejal Tayal is a law student at MAIMS (School of Law) and has a keen interest in contemporary legal issues

WHAT IS EXTRADITION?

As defined by Hon’ble Supreme Court of India, ‘Extradition is the delivery on the part of one State to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and are justifiable in the Courts of the other State’. An Extradition request for an accused can be initiated in the case of under-investigation, under-trial and convicted criminals. In cases under investigation, abundant precautions have to be exercised by the law enforcement agency to ensure that it is in possession of prima facie evidence to sustain the allegation before the Courts of Law in the Foreign State.

The Extradition Act 1962, regulates the surrender of a person to another country or requests for arrest of a person in a foreign land. According to the Act, any conduct by a person in India or mentioned elsewhere in a list of extradition offences punishable with a minimum of one year of imprisonment qualifies for the extradition request. The process of extradition is to be initiated by Central Government.

WHAT IS AN EXTRADITION TREATY?

Section 2(d) of Extradition Act 1962 defines an ‘Extradition Treaty’ as a Treaty, Agreement or Arrangement made by India with a Foreign State, 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 traditionally bilateral in character. Currently, India has signed extradition treaty with 43 counties and extradition arrangement with 11 countries.

• The major difference between a treaty and arrangement is similar to a written agreement and a verbal agreement, or a binding agreement and nonbinding agreement.
• The Extradition Treaty is signed after keeping in view the divergence between the laws of various countries. The treaty generally accepts the principle of dual criminality, so a person who is a fugitive in India will also be treated as a fugitive and criminal in the country in which he / she asylum.
• As far as arrangements are concerned the countries agree to assist mutually in “legal procedures”, without any binding agreement.

The legal basis for Extradition with States with whom India does not have an Extradition Treaty (non-Treaty States) is provided by Section 3(4) of the Indian Extradition Act, 1962, which requires a notification to be issued by the Central Government by which an international convention signed by both India and the non-treaty partner country is treated as extradition treaty for the offences set out in that International Convention. In these circumstances, the only offences for which extradition can be sought are the specific offences that are set out in the relevant international convention.

Generally, extradition depends on the principle of reciprocity. In the absence of the same, the country can request another country where the accused or fugitive resides, to extradite the fugitive, it is then in the interest of security and law and order of such country to extradite the accused. Such a step not only enhances international cooperation but is also in accordance with the purposes of the United Nations.

It may, therefore, be concluded that although there is no universal rule of customary international law imposing a general duty of States in respect to extradition and generally extradition is granted on the basis of treaty, it would be wrong to say that there can be no extradition apart from a treaty, as said by the Supreme Court of India in the case of The State of Madras V C.G. Menon.

DUAL CRIMINALITY

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. The basic test of dual criminality is that extradition is only applicable in cases in which the offence for which extradition is sought by a requesting state is recognized as a crime in the requested state. The nomenclature of the offence is not material, but the substance of the offence is tested while applying the principle of dual criminality.

THE RULE OF SPECIALITY

An accused is extradites for a particular crime and the country which gets back the criminal is entitled to prosecute that person only for the crime for which he was extradited.

FEW EXTRADITION TREATIES ENTERED INTO BY INDIA

INDIA AND U.K

In the first week of January, 1992 during the visit to India, British Home Secretary Kennethe Baker offered to sign an extradition treaty with India regarding extradition and confiscation of funds of terrorists and drug traffickers operating from Britain. This step is being taken to deter drug trafficking and terrorists in Punjab and Kashmir.

INDIA AND CANADA

Desiring to make more effective the cooperation of the two countries in the suppression of crime by making provisions for the reciprocal extradition of offenders and recognizing that concrete steps are necessary to combat terrorism the Government of India and the Government of Canada signed an extradition treaty on the 6th February 1987.

INDIA AND U.S

India and America have been cooperating with each other for a long time for curbing extremism and terrorism. In several cases in the past, America has cooperated with India in respect to extradition of criminal who after committing crime fled away to that country. Recently, America extradited Daya Singh Lahoria at the request of the Government of India. On 25th June, 1997 India and America entered into a treaty on extradition. It is modern treaty containing exhaustive provisions relating to new trends on extradition.

CASES RELATED TO EXTRADITION

Sucha Sing’s Case- Susha Singh was accused of murdering Pratap Singh Kairon, the former Chief Minister of Punjab and had fled away to Nepal and on the request of the Government of India, the Government of Nepal after starting proceedings against him in accordance with the law of Nepal, extradited him.

Saifi Nadeem Akhtar- Famous music director, popularly known as ‘Nadeem’ is accused in the murder of music baron Gulshan Kumar. Before the police in India could arrest him, he fled to England. The Government of India has sought his extradition. The Mumbai Police has filed the charge sheet of the case in British Crown Prosecution, but they have to provide corroborating evidence of his involvement for extradition to take place, it will have to provide prima facie involvement in the murder of Gulshan Kumar. Taking advantage of complex British process of extradition, Nadeem is getting the decision in the case delayed.

Abu Salem- Abu Salem was one of the most wanted accused person in Mumbai Blasts of 1993. He was living in Portugal and the Government of India sought his extradition. After a long drawn legal battle, the Supreme Court of Portugal ruled in January 2005 that Salem could be extradited to India for the trial in major offences. His wife, Monica Bedi was also extradited to India, however no charges were proved and she was released. Recently, Abu Salem has been convicted and sentenced for life term. He could not be sentenced to death because of the terms of extradition between Portugal and India.

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FAQ:

Q- How are the facts established in an extradition case?

Ans. Extradition cases are decided on the basis of the conduct alleged against the defendant. Reasonable grounds for suspicion have to be established for which prima facie determination of committal of an offence is made. The court deciding on extradition is not supposed to conduct a mini-trial to decide whether the allegations are justified. That is the mandate of the trial court in the requesting country.