Long Arm of The Law 

– An Analysis of Extraditing Fugitives

Submitted to 

Dr. Seema Surendran

By

Sai Vardhan Reddy 

LL.M Commercial Law

Abstract:

With the coming of globalization and expanded interconnectivity, it has

become easy for the delinquent parties in India to disappear to safe havens and stay
away from prosecution in the country. The significance of extraditing and bringing
them to justice in the Indian courts can't be focused on enough. Aside from giving
ideal equity and complaint redressal, it likewise fills in as a hindrance against
expected outlaws. Notwithstanding, India’s achievement rate in extraditing these
fugitives is extremely low; just one in every three fugitives involved in white-collar
crimes are in effect are extradited to India. This research paper looks into the
extradition laws that India has with different nations, and gives an outline of India’s
achievements and disappointments and the process for extraditing these
individuals/fugitives.  The paper further compares the municipal laws to that of
international laws by going through some landmark judgments which shaped the
extradition and also proposes changes to further develop India’s extradition laws 
Introduction:

Extradition is the process by which one state, upon the request of another, affects 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. Extraditable persons include those

charged with a crime but not yet tried, those tried and convicted who have escaped

custody, and those convicted in absentia. The request distinguishes extradition from

other measures—such as banishment, expulsion, and deportation—which also result

in the forcible removal of undesirable persons1.

“The process of extradition is regulated across the world Acts, Statutes, and

diplomatic treaties. Belgium was the first nation to adopt laws on Extradition in

18332 and subsequently many nations followed. Since penal provisions vary across

the globe and due to principles of sovereignty, territorial jurisdictions the States

started the process of extraditing fugitives”.

“Extradition acts set out detailed acts and procedures and mandated nations to

incorporate the same in their municipal laws to smoothen the process of extradition..

 Research Methodology:
1
 Andreopoulos, George J.. "extradition". Encyclopedia Britannica, 3 Aug. 2010,
https://www.britannica.com/topic/extradition. Accessed 25 November 2021
2
Ross, J., 2011. Moving Beyond Soering: U.S. Prison Conditions as an Argument Against
Extradition to the United States. International Criminal Justice Review, 21(2), pp.156-168.
The paper incorporates basic research to develop knowledge through studying

various articles and judgments and explains the theories which developed the Laws

and reviews data highlighting the lacunas in the laws and suggest a few changes for

strengthening the process of extradition.

International Law and Principles: 

National laws vary regarding the relationship between extradition acts and treaties.

In the U.S, extradition may be granted only according to a treaty and only if Congress

has no law, the same goes with the U.K., Belgium, and the Netherlands. Some

nations work on the principles and conventions where they have exchanged

“Reciprocity Declaration. There is practice towards denying extradition requests in

the absence of a binding international obligation, fugitives are sometimes

surrendered by states based on municipal law, or as an act of goodwill.

 “Nations that do not have agreements with certain other countries have been

considered safe havens for fugitives. This aspect will be delved into in the following

paper”.

There is a similarity or parallels can be drawn when it comes to Extradition Law,

principles and practices so states refuse the process of extradition when it comes to

their nationals. In Argentina, Britain, and the United States, nationals may be

extradited only if the governing extradition treaty authorizes it.

Another common principle is double criminality 3, which stipulates that the crime for

which extradition is being sought must be criminal in both the demanding and the

requested countries. 

Under the principle of specificity, the demanding state can prosecute the fugitive

only for the offense for which the extradition was granted and may not extradite the
3
Mondaq.com. 2021. Extradition Law: Fundamentals And Processes – Part I - Criminal Law - India.
[online] Available at: <https://www.mondaq.com/india/white-collar-crime-anti-corruption-fraud/
834852/extradition-law-fundamentals-and-processes-part-i> [Accessed 30 November 2021].
detainee to a third country for offenses committed before the initial extradition,

though there are a few exceptions to this principle—and some rules allow the fugitive

to waive it—it is critical to the exercise of the right of asylum. If the demanding state

were permitted to try the fugitive for any offense that suited its purposes (e.g., for a

political offense), the right of asylum would suffer under both national and

international law.

Municipal Law governing India: 

India’s extradition power flows from the Indian Extradition Act, 1962(herein referred

as “Act” for brevity) and International Conventions and Treaties are enforced due to

the Directive Principles of State enshrined in the Constitution of India.

“India presently has bilateral Extradition Treaties with forty-two countries and

Extradition Arrangements with nine more countries to quicken and ease the process

of extradition”4. The basis of extradition could be a treaty between India and a

foreign country and in absence of a treaty, an arrangement for extradition 5.

Under Section 3 of the Act, a notification could be issued extending the provisions of

the Act to the country/ countries notified.

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 Act which

states that the Central Government may, by notified order, treat any convention to

which India and a foreign state are parties, as an Extradition Treaty made by India

4
Tirkey, A., 2021. India’s challenges in extraditing fugitives from foreign countries | ORF. [online]
ORF. Available at: <https://www.orfonline.org/research/indias-challenges-in-extraditing-fugitives-
from-foreign-countries-45809/> [Accessed 23 November 2021].
5
Mondaq.com. 2021. Extradition Law: Fundamentals And Processes – Part I - Criminal Law - India.
[online] Available at: <https://www.mondaq.com/india/white-collar-crime-anti-corruption-fraud/
834852/extradition-law-fundamentals-and-processes-part-i> [Accessed 30 November 2021].
with that foreign state providing for extradition in respect of the offenses specified in

that Convention.

“India is a party to the 1997 International Convention for the Suppression of

Terrorist Bombings which provides for extraditing terrorists” 6.

In May 2011, the Indian Government ratified two UN Conventions – the United

Nations.Convention.against.Corruption (UNCAC) and the United Nations

Convention against Transnational Organised Crime (UNCTOC) and its three

protocols.

Where there exists an Extradition Treaty between the concerned countries, the

extradition request has to be in terms of the specific requirements therein.

“In terms of the Comprehensive Guidelines for Investigation Abroad and Issue of

Letters Rogatory (LRs) issued by the Ministry of Home Affairs, extradition requests

are made only after the filing of a charge sheet, cognizance of the same, and issuance

of an arrest warrant. If the accused is to be arrested and produced in the courts of

India, the requisite action is through the extradition process”.7

So once a charge sheet is filed the Magistrate takes cognizance of the same,

issuing orders/directions justifying the committal of the accused to trial and seeking

the presence of the accused to face trial, the extradition request would be made to the

Ministry of External Affairs.

In passing such a warrant for the apprehension of the accused, the Magistrate

will be governed by the considerations indicated hereinabove.

6
Chakraborty, A., 2019. Extradition Laws in the International and Indian Regime. Singapore:
Springer Singapore, pp.149-171.
7
Tirkey, A., 2021. India’s challenges in extraditing fugitives from foreign countries | ORF. [online]
ORF. Available at: <https://www.orfonline.org/research/indias-challenges-in-extraditing-fugitives-
from-foreign-countries-45809/> [Accessed 23 November 2021].
The request is in the form of a self-contained affidavit by the Magistrate, making out

a prima facie case against the accused. It is mandatory to specify the offenses for

which the accused is charged under the law and indicating the punishment.

The extradition request must contain an order of the Magistrate justifying the

accused person's committal to trial based on the evidence made available in the

charge-sheet, with directions seeking to secure the presence of the accused in court

to stand trial in the said court from the country of present stay, along with a copy of

the First Information Report (FIR) duly countersigned by the competent judicial

authority8. Such a request must be accompanied by an original and open-dated

warrant of arrest stating clearly the offenses for which the accused has been charged

and that the Court has taken cognizance of the said sections 9.

An alleged offender may not be extradited to the requesting State in the

absence of a treaty. The States are not obligated to extradite aliens/nationals, or

where the crime is not identified as an extraditable offense in the treaty. Extradition

may be denied for purely military and political offenses. Terrorist offenses and

violent crimes are excluded from the definition of political offenses for extradition

treaties. In cases where dual criminality exists, where the conduct constituting the

offense amounts to a criminal offense in both the requesting country and the foreign

country, the# offense may be tried in either country depending on factors such as

territory where the offense was committed as well as the nationality of the accused.

8
Chakraborty, A., 2019. Extradition Laws in the International and Indian Regime. Singapore:
Springer Singapore, pp.149-171.

9
P. Pushpavathy v. Ministry of External Affairs. 2013 Cri LJ 4420;
Extradition may be denied where due procedure under the Extradition Act of 1962 is

not followed

Challenges faced by Indian Authorities:

The Extradition Act bars the extradition of a person in certain circumstances, even if

there is no corresponding bar under the Extradition Treaty. If the Magistrate Court

determines that any of the statutory bars to extradition apply, the person must be

discharged10. 

Some of the cases are as follows : 

1. Double Jeopardy

( David Headley’s Case )

2. Extraneous Considerations:

against the specific violations of Fundamental rights mentioned in the

Constitution

3. Passage of Time:

4. Human Rights

While deciding whether a Requested Person may be extradited, the Magistrate Court

must also consider whether or not extradition would be permissible in terms of the

same not violating the Requested Person's Convention Rights as defined under the

Human Rights Act, 1988 (UK) ("Human Rights Act") which include the right to a fair

trial, prohibition of torture or degrading treatment, etc. In case the Magistrate Court

10
Mondaq.com. 2021. Extradition Law: Fundamentals And Processes – Part I - Criminal Law - India.
[online] Available at: <https://www.mondaq.com/india/white-collar-crime-anti-corruption-fraud/
834852/extradition-law-fundamentals-and-processes-part-i> [Accessed 30 November 2021].
determines that the extradition of the Requested Person would result in a violation of

these rights, then it cannot order the extradition. 11

5. Letters of Assurance

Magistrate can look into the Assurance letters provided by requesting nation

and check the Bonafide of the same assurance.

Appeals can be raised against an extradition order before courts (Currently Vijay

Mallaya has appealed the order of the trial court)

Extradition in general is not granted for persecution by the state as seen in Edward

Snowden’s case.

Challenges to extradition orders can also be raised outside treaty terms. These are

generally based on concerns of human rights violations, such as torture or cruel(as

claimed by Nirav Modi and Vijay Mallya) , inhuman, and degrading treatment.

The primacy given to human rights has developed through individual rights

movements in European nations. After World War II and the Nuremberg trials the

world across realised the importance of Human Rights and states have entered into

the European Convention on Human Rights (ECHR) and establishing the European

Court of Human Rights.

ECHR mandate that all member states must protect the human rights and political

freedoms of individuals within their jurisdiction. When it comes to extradition,

11
Tirkey, A., 2021. India’s challenges in extraditing fugitives from foreign countries | ORF. [online]
ORF. Available at: <https://www.orfonline.org/research/indias-challenges-in-extraditing-fugitives-
from-foreign-countries-45809/> [Accessed 23 November 2021].
Article 3 of the ECHR, which “prohibits torture, inhuman or degrading

treatment or punishment”, is of particular concern to India.

Soering v. the United Kingdom 12, a landmark judgment decided by the

European Court of Human Rights equated poor prison conditions with “torture” and

“inhuman or degrading treatment”. As a result, the UK and other European countries

have often denied extradition requests on the possibility that the requested person

will be subject to poor conditions or custodial violence in India’s prisons stating

violations of Article

In 1996, the European Court of Human Rights prohibited the deportation of Sikh

separatist, Karamjit Singh Chahal 13, to India on the possibility of misconduct by

Punjab police officials. To establish this, foreign courts studied prison manuals and

independent reports by organizations such as Amnesty International, the UK High

Commission, the US Department of State, and the Indian National Human Rights

Commission.

Citing Article 3, many states have refused to extradite fugitives such bookie Sanjeev

Kumar Chawla’s case & Tihar jail issue. Neils Holck, accused in the Purulia arms

drops

and now the infamous Vijay Mallya’s case where the lawyers argued that the poor

conditions in Arthur Road Jail (Mumbai) is violative of human rights and the recent

12
Ross, J., 2011. Moving Beyond Soering: U.S. Prison Conditions as an Argument Against
Extradition to the United States. International Criminal Justice Review, 21(2), pp.156-168.
13
International Journal of Refugee Law, 1997. European Court of Human Rights Chahal v. The
United Kingdom. 9(1), pp.86-121.
UK Court order requested the Indian government to send a video of Arthur Road Jail

for evaluating its conditions.14

“Thus, considering the value of human rights concerns, India must determine

whether these countries are at risk of being considered as “safe havens” by

fugitives. Treaties have various clauses and one such important clause is “rule of

specialty” which states that the extradited fugitive will be prosecuted only for the

offense for which he was surrendered this too has been violated by India, recent Abu

Salem’s case where Portugal has objected. This throws a bad light on the process of

Indian Extraditions and dampens our diplomacy.”

“Adherence to treaty commitments is of paramount importance and helps maintain

mutual trust, cooperation, and reciprocity between countries. Though Portugal and

India were parties to a bilateral extradition treaty, the same finds no mention on the

MEA’s updated list of India’s extradition treaties. Without an official statement, it is

difficult to determine whether the treaty has been suspended or revoked.

Nonetheless, the present status of India’s treaty with Portugal remains unknown”.

Of late, instances of high-profile fugitives involved in economic offenses and financial

irregularities have surfaced in India. Notably, diamond jeweller Nirav Modi and his

uncle Mehul Choksi, who have allegedly duped the Punjab National Bank of

approximately INR 140 billion. Modi has escaped to London, while Choksi has

reportedly taken up citizenship of the Caribbean Island of Antigua.

14
Tirkey, A., 2021. India’s challenges in extraditing fugitives from foreign countries | ORF. [online]
ORF. Available at: <https://www.orfonline.org/research/indias-challenges-in-extraditing-fugitives-
from-foreign-countries-45809/> [Accessed 23 November 2021].
Conclusion and Suggestions:

India’s effort in securing the return of offenders raises concerns as to whether these

cases will be solved the numbers speak for themselves. Some extradition treaties did

not provide for the surrender of fugitives involved in fiscal and economic offenses.

The exclusion for fiscal offenses was based on the view that these offenses were not

criminal conduct, and attracted less moral stigma. Furthermore, since fiscal

offenders are of no immediate security threat to foreign nations, there is no urgency

to expedite their extradition process and return them to the requesting state. This

outlook changed when India was rocked by two major financial scams and had to

usher in the Financial Economic Offenders Act which tries to bring in fugitive

economic offenders under the ambit of Extradition Laws.

The policymakers are engaged in a knee-jerk reaction when it comes to offences

rocking the financial system of the country, it should first strengthen it’s internal

laws so that there are very few offenders escaping the long-arm of the law.

In the era of globalization, we are facing a critical issue of fugitives escaping

from India with a drop of a hat. Given the difficulties to bringing these fugitives back,

India should rapidly execute changes and use diplomacy be it soft or hard diplomacy,

and mimic United States methods in extraditing these fugitives. Indian should adopt

the doctrine of Reciprocity in toto and align its policies based on international laws,

policies and should not backtrack on the same as it did in multiple instances. This

will enhance the image of India’s international regulatory compliances.

 
 

Bibliography : 

1. Mondaq.com. 2021. India's Recent Successes In Extraditing Fugitives From

The United Kingdom - Government, Public Sector - India. [online] Available
 at: <https://www.mondaq.com/india/human-rights/948934/india39s-
recent-successes-in-extraditing-fugitives-from-the-united-kingdom>
[Accessed 21 November 2021].

2. Chakraborty, A., 2019. Extradition Laws in the International and Indian

Regime. Singapore: Springer Singapore, pp.149-171.

3. Mondaq.com. 2021. Extradition Law: Fundamentals And Processes – Part I

- Criminal Law - India.[online]Availableat:
<https://www.mondaq.com/india/white-collar-crime-anti-corruption-
fraud/834852/extradition-law-fundamentals-and-processes-part-i>
[Accessed 30 November 2021].

4. P. Pushpavathy v. Ministry of External Affair [2013] (IN THE HIGH COURT

OF JUDICATURE AT MADRAS)

5. Ross, J., 2011. Moving Beyond Soering: U.S. Prison Conditions as an

Argument Against Extradition to the United States. International Criminal
Justice Review, 21(2), pp.156-168.

6. Tirkey, A., 2021. India’s challenges in extraditing fugitives from foreign

countries | ORF. [online] ORF. Available at:
<https://www.orfonline.org/research/indias-challenges-in-extraditing-
fugitives-from-foreign-countries-45809/> [Accessed 23 November 2021].