Author- Khusboo Kharbanda

EXTRADITION AND ITS ESSENTIALS

INTRODUCTION
Every country in the world has their separate rules of law and standards to regulate their States. But
what happens if a criminal flees away to some other country after committing some crime in the latter.
In such cases, it becomes impossible to punish the offender and bring him under their respective
jurisdiction. These kinds of circumstances determine peace and cooperation between nations at
international level. Due to this, the doctrine of extradition was adopted. Extradition basically means to
deliver a criminal to the country where the crime was committed by that person. It is an essential
process to maintain peace and security at a global level. It is basically handing over of a criminal to
the country where he has committed an offence and ran away to avoid punishments. These criminals
take shelter in other Nations from which they are extradited later through legal procedures.

EXTRADITION
The term extradition has derived from two 1Latin words ex and traditum. Ordinarily, it may mean
‘delivery of criminals’, ‘surrender of fugitives’ or ‘handover of fugitives.

Oppenheim- “Extradition is the delivery of an accused or a convicted individual to the State on whose
territory he is alleged to have committed or to have been convicted of a crime, by the State on whose
territory the alleged criminal happens to be for the time being."

According to Starke- "The term 'extradition' denotes the process whereby under treaty or upon a basis
of reciprocity one State surrenders to another State at its request a person accused or convicted of a
criminal offence committed against the laws of the requesting State, such requesting State being
competent to try the alleged offender.”

Grotius- “it is the duty of each State either to punish the criminals or to return them to the States
where they have committed crime. In practice, however, States do not accept such obligation. Under
International Law, extradition is mostly a matter of bilateral treaty. In principle, each State considers
it a right to give asylum to a foreign national.”

Thus, if A committed a crime in India and fled to Russia, then depending upon the relation between
India and Russia, A could to be extradited to India’s Jurisdiction to hold him responsible for his act.
Extradition is a two-way process. Generally, extradition is granted on basis of a treaty but in absence
of it, other resorts are available and even requests could be made. Its importance has been well
explained by the Supreme Court in the case of 2Daya Singh Lahoria v. Union of India.

1
https://www.legalbites.in/extradition-and-asylum

2
2001 (4) SCC 516
INDIAN LAW ON EXTRADITION
The Extradition Act, 1962 is the law governing this practice in India. It was further amended in the
year 1993. It deals with return of fugitive criminals from other countries via extradition agreements.
Currently India has extradition agreements with 11 countries and extradition treaty with 43 countries.
A country which does not have a treaty with India for extradition follows the procedure laid in section
3(4) of the act. The Ministry of External Affairs manages all extradition cases and procedures on
behalf of the country and cannot be done by anyone in public. The Government of India submitted
and extradition request for 3Vijay Mallya to UK for his involvement in banking fraud in India. All his
appeals have been quashed that a prima facie case does not exist. And the only relief available to him
is from the European Court of Human Rights. In failure of which, his extradition is imminent.

PURPOSE OF EXTRADITION
Global recognition of human rights has automatically led to a rise in bringing criminals to face the
consequences of their action. And also, in view of increasing criminal activity in recent years, the
importance of extradition has come in limelight.
 Punish the criminal for his actions.
 Prevent further criminal activity.
 To maintain peace and security.
 Increase international relations, unity and cooperation.

EXTRADITION TREATY
This means an agreement made by India with some other foreign country for extradition of a run-
away criminal. It is given under 4section 2(d) of the Act. This treaty basically contains the conditions
which are required to be fulfilled to constitute an extradition process. Thus, it is a formal agreement
between two nations agreeing upon modalities of extradition of fugitives.
Whereas, extradition agreements are made for specific or particular offences. But even in absence of
these, extradition can be permitted on guarantee of reciprocity.

ESSENTIAL CONDITIONS FOR EXTRADITION

 EXTRADITABLE OFFENCE- These are the offences for which countries may allow
extradition inter se. Such offences are serious in nature and not some trivial act or petty
offences. These are grievous acts. According to India - US extradition treaty, offences which
are punishable for a period of more than one year are extraditable offence.

 RULE OF RECIPROCITY - The meaning of reciprocate is to respond to an action with a

corresponding one. Thus, when a country accepts an extradition request on the condition that
the latter would do the same or return the favour in future. This is the principle of reciprocity
where the latter promises to do the same in future. It is a form of condition to a request made.

 DUAL CRIMINALITY- The act or crime for which extradition is requested, if it is a crime
in both the countries, that is the country requesting and the requested State, only then
extradition is allowed. This is the principle of dual criminality. It explicitly means that the

3
The Vijay Mallya v. Government of India, [2020] EWHC 924
4
The Extradition Act, 1962
 requested State is free to refuse to extradite the fugitive if they are satisfied that the act done
by him is not a criminal act.
Example, Apostacy is the renunciation of religious rights. It is a serious offence in Islamic
countries like Saudi Arabia. However, practice of renunciation of religious rights is legally
allowed in India. In such kind of offences, India can reject the extradition request of Saudi
Arabia.

 PRIMA FACIE CASE- 5The extradition request cannot be accepted on grounds of mere
guess and speculations. There should be a prima facie case against the fugitive and sufficient
evidence to support the same. Example, 6Sucha 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.

 PRINCIPLE OF PROPORTINALITY- If punishment of a crime is excessively high or

inhumane in the requesting state, the requested State may reject the extradition request on this
specific ground. Example, in North Korea, offences like theft, treason or leaking of classified
information is punished with death penalty. In such a case, capital punishment for such
offences is over the top, thus, extradition request can be denied here.

 FAIR TRIAL- It is the right of requested State to ensure that the criminal gets a fair trial
opportunity in requesting country, if extradition request is accepted. This is majorly due to the
fear of prison torture and denial of just hearing or political pressure and power. Example,
India has been denied extradition several times on the basis that human rights of prisoners is
violated here and custodial deaths also occur.

 RULE OF SPECIALITY- This means that when a criminal is extradited for a specific
crime, he shall be then tried in the requesting country for that crime only and none other. Its
main object is to avoid blanket extradition requests.
Example, America had got 7Rauscher extradited from Britain on the ground of murdering a
fellow servant in a ship but was tried for causing grievous hurt to some other person in
America. The rule of speciality was applied and the same law prevails in India too. Same was
held in 8Bombay blast case.

 POLITICAL EXCEPTION- Extradition request can be denied if it is found that the main
purpose of such request is to punish the person not for his political actions but merely of his
political opinions. In such a circumstance, the requested person shall not be surrendered or
returned to the requesting State. Political offences have a very wide ambit and thus can be
interpreted differently in various countries. Acts of terrorism is not exempted under political
offences. This term is not clearly defined in the International Law. It mostly depends on the
domestic law of a Country.

5
Tarashov extradition case, 1963
6
1965
7
US v. Rauscher, 1886
8
Abu Salem Abdul Qayoom Ansari v. State of Maharashtra, 1993.
CONCLUSION
Thus, extradition can be seen as an important law in the coming future in view of the rising illegal and
criminal activities. There is no universal customary law as to extradition imposed on countries. It
varies from Nation to Nation. They are in forms of established law, bilateral treaties and agreements
agreed upon various contents and conditions between the countries mutually. Thus, such steps only
increase international cooperation and confidence in the legal system and also keeps a check and
balance between the crimes committed and its consequences or punishment. It is important process of
instilling confidence in the public that one cannot flee away from the justice system.