INTRODUCTION

The surrender of a suspected or convicted offender from one state to another is known as
extradition. Extradition is the mechanism by which one State, at the demand of another,
surrenders an individual found well within jurisdiction for trial and punishment, or, if he has
already been convicted, only for punishment, for an offense punishable by the requesting
State's laws and committed from outside the requested State's territory. The object of
extradition is to bring a person into the borders of the requesting country in order to decide
guilt or innocence or to enforce punishment.

Extradition is crucial in the fight against crimes on a global scale. It persists because of the
so-called concept of criminal law territoriality, which states that a state may not extend its
penal laws to offenses perpetrated beyond its territory unless special national interests are at
risk.  However, because of the international unity in the fight against terrorism, even if a State
refuses to enforce direct punitive penalties for crimes committed overseas, it is generally able
to collaborate in other ways to bring the suspect to justice, lest he go unpunished.

Because of advent of modern, stronger, and faster means of transport, offenders were able to
commit crimes across a wider area after the early nineteenth century, which pushed
the sovereigns to focus on extradition treaties against common crimes.

EXTRADITION: Definition & Purpose

The surrender of an individual charged or convicted of a crime within the territory of one
country to another for trial and punishment is known as international extradition. 1 An
extradition appeal is usually made against a fugitive criminal 2, who has been officially
suspected of, tried with, or convicted of an extradition penalty.
Definition:

 Oppenheim: According to Oppenheim "Extradition is the transfer of a suspected or

convicted person to the State on whose jurisdiction he is supposed to have committed
or had been prosecuted of a crime by the state on whose territory the alleged criminal
happens to be for the crime to be."

1
P. Ramanatha Aiyar‟s Concise Law Dictionary, Lexis Nexis, Fifth Edition, p.476
2
A fugitive criminal‘ means a person who is accused of, or is convicted of, an extradition offence within the
jurisdiction of a foreign State and includes a person who, while in India, conspires or attempts to commit or
incites or participates as an accomplice in the commission of an extradition offence in a foreign State
  Lawrence: According to Lawrence "The submission by one State to another of a
person who is discovered inside the territories of the former, and is suspected of
having committed a crime inside the jurisdiction of the latter; or who, having
committed a crime from outside the territory of the latter, is one of its subject and as
such by its law amenable to its jurisdiction."
 Black’s Law Dictionary: According to Black’s Law Dictionary3 “The submission of
a person accused or convicted of an offence outside its own jurisdiction and within the
territorial boundaries of another State or Nation, which, being qualified to try and
punish him, demands the submission.”

Purpose:

The aim of extradition is to deter crimes and to prosecute criminals who have evaded their
sentence and relocated to some other country. As we all know, it is better for the country to
prosecute the perpetrator where he performed a crime and to collect evidence against him for
that specific crime. However, if the country has been unable to punish him due to legalities or
a lack of authority, he may be extradited back to his home country. As a result, the aim of the
extradition process is to deter and mitigate foreign crimes.

The significance and frequency of extradition have risen in recent years as a result of the rise
in international crimes. Extradition clauses have been mentioned in international treaties in
recent times. Extradition has become more popular and necessary as human rights have
become more widely accepted. Since almost no country has an extradition arrangement with
any other country on the planet, international cooperation is critical in extradition
proceedings.

PRINCIPLES OF THE LAW OF EXTRADITION

1. Principle of Double Criminality: This principle specifies that extradition is only

possible when the conduct in question is illegal in both states' jurisdictions. The logic
behind this theory is that the requested State should be free to decline to extradite the
fugitive suspect if the fugitive offender's acts are not deemed criminal.
2. Principle of Specialty: A person who has been extradited can only be charged for the
crimes mentioned in the extradition request; the goal of this principle is to avoid

3
Black‘s Law Dictionary, Centennial Edition (1891-1991), Sixth Edition, p. 585
 unconditional extradition requests. The requesting State guarantees that the demanded
person would be tried only for the offense for which extradition was sought, and not
for any other crime.4 In fact, when a fugitive offender surrenders, he or she may
specifically waive the rule of speciality and be charged for offences other than, or in
addition to, the ones for which he or she was surrendered.
3. Political Exception: If the true object of the extradition request is to prosecute the
person demanded for his political views instead of the crime he committed, the
demand must be refused. An individual cannot be extradited for a political offence,
according to the political offences exception. In international law, the word "political
offences" is not well described. What constitutes a political offence is normally
determined by the requested State's domestic law.

EXTRADITION & INDIA: A Critical Analysis

Act governing Extradition in India: Laws relating to extradition in India is governed by the
Extradition Act, 1962. The Extradition Act of 1962 has extraterritorial jurisdiction under
Section 34, which means that an extradition offense committed by an individual in a foreign
nation is considered to have been conducted in India, and that individual is liable to be tried
in India for that crime. Extradition is described as the act of handing over a fugitive offender
to the authorities of the state where the offence was performed, as per Section 216 of the
Indian Penal Code, 1860, read with the Constitution of India, 1950 (Schedule VII, List I, Item
18).
A treaty, agreement, or settlement with a foreign nation related to the extradition of fugitive
offenders is referred to as an extradition treaty. Treaty State means, a Foreign State with
which an extradition treaty is in operation.5
Only fugitive offenders can be extradited, according to Section 2(f) of the Extradition Act,
1962. According to Indian extradition law, a fugitive offender is an individual who is
suspected of committing an extradition offence when in India, or an individual who
conspires, tries to commit, incites, or engages as an informant in the execution of an
extradition offence in a foreign state while being in India.
4
Daya Singh Lahoria v. Union of India, (2001) 4 SCC 516
5
As per Section 2(c) (i) of the 1962 Act, an extradition treaty is a treaty between two or more nations which
provides for the extradition from each of the countries to any of the others, of persons charged with specified
offences. As per Section 2(d) of the 1962 Act, an extradition treaty means a treaty or agreement 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 to India: There are certain rules and procedures discussed below which governs
the extradition of a fugitive offender to India.
 Extradition to India is regulated by bilateral or multilateral international treaties that
enshrine the rule of nulla extradition sine lege (no extradition without a law), which is
similar to nullum crimine nulla pena sine lege (no crime and no penalty without a
law).
 India must send a formal extradition request demanding the surrender of a suspect,
which must describe the criminal suspect as well as the crime of which he or she has
been charged. Certain records must be submitted in consideration of the appeal. The
type and format of evidence needed, as well as India's standard of proof, can vary
significantly from one country to the next.
 The principle of comity of nations enthrals that each Member State shall cooperate
with a demand from a court or prosecutor of another Member State for the
enforcement of an arrest warrant produced by it against a person accused of a crime
punishable by a minimum of 12 months in prison.
 Only a summary of the conditions in which the crime was committed is required in
the arrest warrant. A provisional arrest warrant has to be issued by India prior to the
formal extradition request.


Extradition from India

 To extradite an individual from India, a request for the extradition of a fugitive

offender must be provided to the Central Government by: (a) the Foreign State's
diplomatic representative in Delhi; or (b) the concerned Foreign State's government
can coordinate with the Central Government via its diplomatic representative in that
State.
 The Central Government can, if it sees fit, direct a Magistrate's investigation in
response to a request. For the purposes of Section 5 of the 1962 Act, the term
"magistrate" refers to the magistrate who would have authority to investigate the
crime if it had occurred within his jurisdiction's local limits. The fugitive offender
 may be handed over to a foreign state if the Magistrate's primafacie report is
satisfactory.
 Restrictions on surrender of fugitive criminal: A fugitive offender should not be
released or transferred if the crime is politically motivated; the prosecution of the
offence is prohibited by time in the foreign state; whether the person is convicted of
any offence in India, apart from the crime for which extradition is requested, or is
serving a sentence under any indictment in India until after he's been released, either
through acquittal or on the completion of his sentence.
 Provisional Arrest: Under Section 34B of the Extradition Act 1962, the Central
Government can request a Magistrate to issue an urgent provisional warrant for the
arrest of a fugitive offender in response to an imminent request from a foreign state. It
is important to note that the escaped convict will be discharged after 60 days if no
order for his surrender or return is made within that time span.
 Appellate Remedies: The Extradition Act 1962 makes no allowance for a statutory
appeal in extradition proceedings; Any petition against any decision in extradition
proceedings must be addressed via the writ jurisdiction of the High-Court involved.

CASES OF EXTRADITION IN INDIA

 Sarabjit Rick Singh v. Union of India6:

“In a proceeding for extradition, no witness is examined for establishing an argument
made in the requisition of the foreign State,” the Apex Court observed in this case,
taking into account the specific facts and circumstances of the case. The sense of the
word "proof" must be understood in light of the Act's tenor.  For the sake of the above
purposes, the Act only gives the Magistrate authority and powers that he may have
used to issue a commitment order.
 Rajender Kumar Jain & Ors v. State through Special Police Establishment &
Ors7
The Supreme Court held in this case that because politics is about government, a political
offence is one performed with the intent of altering a state's government or persuading it to
change its policy.
It was also determined that the Indian Penal Code and the Code of Criminal Procedure don't
really consider political offences as a distinct type of crime; they cannot, in the usual course

6
2008 (2) SCC 417
7
1980 (3) SCC 435
 of things. That is not to say that political offences are unknown in the law or that courts must
behave as though they are unaware of them. Political crimes are recognised by international
law, and the Indian Extradition Act explicitly addresses them.
 Abu Salem’s Case:
Extradition typically requires the intervention of the courts of both countries, which
has allowed some perceivable concepts of international law regulating extradition to
evolve.8
The Indian government requested his extradition under the United Nations
Convention on Terrorism Suppression of 2000, which requires all member countries
to cooperate in the fight against terrorism. The Convention has been ratified by both
Portugal and India. Meanwhile, Salem was sentenced to four years in prison in
Portugal for unlawfully entering and living on forged passports. His extradition will
only take place after he had served his sentences, as per the court and hence was
extradited after the expiration of his sentence.
 Vijay Mallya’s Case
On February 9, 2017, the Government of India filed an extradition request for Dr.
Vijay Mallya in connection with his participation in a banking scam and the execution
of fraud and criminal conspiracy violations under the IPC, as well as offences under
the Prevention of Corruption Act, 1988, and the Prevention of Money Laundering
Act, 2002.
The GOI, according to Dr. Mallya, failed to create a prima facie case. He also
believed that his extradition was being pursued for unrelated reasons, such as his
political views.9
The Magistrate Court found that there was a prima facie case that Dr. Mallya
committed the crimes of conspiracy to defraud and money laundering. It found no
proof to endorse Dr. Mallya's claim that his extradition was pursued in order to
prosecute or prosecute him for his political views.
As a result, the petition was submitted to the Secretary of State, who would determine
whether or not to order his extradition. The extradition of Dr. Mallya was authorised
by the Secretary of State.10

8
‘India calls for global laws on extradition’ The Hindu (New Delhi, September 27, 2001)
9
[2020] EWHC 924
10
Ibid