India - The Extradition Act, 1962

India: The Extradition Act, 1962
Author(s): J. N. Saxena
Source: The International and Comparative Law Quarterly , Jan., 1964, Vol. 13, No. 1
(Jan., 1964), pp. 116-138
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law
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INDIA-THE EXTRADITION ACT, 1962
By
J. N. SAXENA "
A TIMELY revision of the Indian law of extradition has been effected

by the Extradition Act, 1962. When India became an independent
dominion of the British Commonwealth in 1947, and later
proclaimed itself a sovereign democratic republic in 1950, the new
State was faced with a number of problems with regard to extradi-
tion. Were the extradition treaties entered into by the former
British India and Princely States, which had now merged into
India, still operative? If not, what extradition law was to prevail
in these erstwhile native States, which for some time constituted
Part B States under the Indian Constitution? Could the summary
procedure for extradition inter se the British possessions, which were
grouped together according to their contiguity, etc., by an Order
in Council and treated as one territory (the procedure as laid down
in Part II of the Fugitive Offenders Act, 1881), be continued
under the changed circumstances? These and other anomalies of
detail made codification desirable.
The scope of this paper is to examine how far the basic polic
and principles that prevail today in the field of extradition in
international law have been incorporated in the Act. But before
discussing the important provisions of the Act, it would be desirable
to refer to the statutory law of extradition in India prior to the
introduction of the Bill in Parliament.
I. EXTRADITION ACTS APPLICABLE IN BRITISH INDIA
The Extradition Act, 1870 1 (enacted by the Parliament of the

United Kingdom) as amended from time to time,2 was originally
made applicable to India 3 by virtue of its section 17.4 This Act
* Reader in International Law, Nagpur University.

1 33 & 34 Vict. c. 52.
2 Amended by: (a) 36 and 37 Vict. c. 60 (1873); (b) 58 & 59 Vict. c. 33 (1895);
(c) 6 Edw. 7, c. 15 (1906); (d) 22 & 23 Geo. 5, c. 39 (1932).
3 Act No. IX of 1895.
4 s. 17: " This Act, when applied by Order in Council, shall. unless it is
otherwise provided by such Order, extend to every British possession in the
same manner as if throughout this Act the British possession were substituted
for the United Kingdom or England, as the case may require .
116

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JAN. 1964] India--The Extradition Act, 1962 117
dealt with the extradition of fugitive criminals from and to

countries outside the British dominions. When India passed i
Indian Extradition Act, 1903,5 it lost much interest in these
British statutes.
The Fugitive Offenders Act, 1881 6 (enacted by the Parliament
of the United Kingdom), regulated the extradition of fugitive
offenders inter se the Commonwealth countries. Section 32 of this
Act (like section 17 of the Extradition Act, 1870) provided for its
application to British possessions. This power was exercised for
British India by an Order in Council,' declaring that Chapter IV of
the Indian Extradition Act, 1903, shall be recognised and given
effect to throughout His Majesty's dominions and on the high seas
as if it were part of the Fugitive Offenders Act, 1881.
In short, the Indian Extradition Act, 1903, laid down the
procedure to be followed in India after a valid requisition for
extradition was received from a foreign State. The right of a
foreign government to make such a requisition, however, depended
on there being a treaty between the two countries concerned.
So far as the right of the United Kingdom or any British
possession to demand extradition from India was concerned, the
law was set out in the British statutes mentioned above; the Indian
Extradition Act proceeded on the assumption that those statutes
applied to India.
Indian Native States
The Indian Native States had a separate political existence of

their own with reference to the law of extradition between the
Paramount Power and the Indian State. The Government of
British India had entered into extradition treaties with
Indian States." These treaties governed the surrender of cr
After a prima facie case was established, either British Indi
Indian State concerned, surrendered the fugitive to the juri
of the locus delicti. But there were no such extradition treaties
with the majority of Indian States. In these cases resort was ha
to the basic principle of " reciprocity." This principle, however
was subject to the right claimed by the Government of India,
Paramount Power, to demand the surrender of any class of
criminals and to refuse extradition in many cases.9
5 Act No. XV of 1903. 6 44 and 45 Vict. c. 69.

7 Of March 7, 1904.
8 See Aitchison, A Collection of Treaties, etc.. Relating to India (5th ed.. 1932)
Some of these States were: Alwar (Treaty No. XXVI, 1867); Bikaner (Treaty
No. III, 1869); Jaipur (Treaty No. V. 1868); Jodhpur (Treaty No. X. 1868).
etc.
9 Sardar K. M. Panikkar, Inter-Statal Law, pp. 81-82.

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118 International and Comparative Law Quarterly [VoL. 13
If a foreign criminal took shelter in an Indian Native State,

the matter was dealt with in a different way. With the sanction
of Parliament, the Crown had entered into a number of extradition
treaties with foreign countries.1' These treaties were published in
the Gazette of India. When a foreign fugitive offender took shelter
in an Indian State, that State was bound to surrender him to the
Government of British India without any express agreement on its
behalf as to do so, because it was supposed that this obligation was
a duty which flowed from the junction of the royal prerogative
and Acts of Parliament."1
After August 15, 1947

A major political change took place on August 15, 1947, when
India became an independent dominion of the British Common-
wealth. Section 7 of the Indian Independence Act 12 provided that:
" (a) As from the appointed day-
(b) The suzerainty of His Majesty over the Indian States

lapses and with it, all treaties and agreements in force at the
date of the passing of this Act between His Majesty and the
rulers of Indian States . . ."
The imminent question arose concerning the validity of various
extradition treaties between the Indian Native States on the one
hand and the British Government on the other.
The effect of the new constitutional situation on the extradition
arrangements between India and the State of Tonk was considered
by the Supreme Court in Dr. Ram Babu Saksena v. The State.13
The question was how far the extradition treaty (of 1869) between
the Government of India and Tonk State was affected by the
merger of the State into India. It was held that the treaty must be
deemed to be ineffective.'4
Though the Indian Dominion had power to enact any legislation
regarding matters of extradition concerning the Indian States after
10 Lee Warner, The Protected Princes of India, p. 189: " With the sanction of
Parliament, the Crown has agreed to surrender certain fugitive accused persons
to Austria, Belgium. Brazil, Denmark, France. Germany, and other nations."
11 K. R. R. Sastry, Indian States, pp. 82-83.
12 (1947) Law Reports, Statutes, Vol. I, Chap. 30.
13 A.I.R. 1950 S.C. 155.
14 Ibid. at 162. Mukherjee J.. observed. " It seems to us that in th
circumstances the Extradition Treaty of 1869 has become entirely inc
execution. It is not possible for the Tonk State, which is one of the co
ing parties to act in accordance with the terms of the Treaty for i
longer any independent authority or sovereign rights over the Tonk
and can neither make nor demand extradition. ... The authority, so far as
extradition was concerned, was already surrendered by the Instrument of
Accession. ... The treaty must be deemed to be void and inoperative."

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JAN. 1964] India-The Extradition Act, 1962 119
their execution of Instruments of Accession, no such law, ho

was passed.
After January 26, 1950

When India proclaimed herself a sovereign democratic re
on January 26, 1950, the need for extradition arrangement
the Indian Native States disappeared. They became an int
part of the republic and were described as Part B States. By an
Adaptation Order of 1950, the Indian Penal Code as well as the
Criminal Procedure Code were extended to their territory. By the
same Order of 1950, the Indian Extradition Act, 1903, was made
applicable to the whole of India with the exception of Part B States.
It was not extended to Part B States even when the Part B States
(Laws) Act, 1951,1" was enacted, as it was felt then that this
should be done by a separate law after a proper examination of the
position.16
Then came the all-important case before the Supreme Court of
India: The State of Madras v. C. G. Menon," in which the Fugitive
Offenders Act, 1881, a part of the extradition law of India,
regulating the extradition of fugitive criminals inter se the Common-
wealth countries, was held inapplicable in India.'s
Thus, it is apparent that the necessity for the Extradition Bill
arose, first, because Menon's case created a vacuum in the law of
extradition from India to Commonwealth countries, and, secondly,
because the legal position relating to the surrender of fugitive
criminals to foreign countries and Commonwealth countries from
the former Part B States was somewhat doubtful."1
The purpose of the Bill is, first, to overcome all anomalies and
lacunae in the existing law, and, secondly, to enact a consolidated
15 Act No. 3 of 1951.
16 Statement of Objects and Reasons of the Extradition Bill, 1961.
17 A.I.R. 1954 S.C. 517; (1954) S.C.J. 621.
18s Ibid. at 519. Mahajan C.J. observed, " The situation completely changed when
India became a Sovereign Democratic Republic. After the achievement of
independence and the coming into force of the new Constitution, by no
stretch of imagination could India be described as a British possession and
it could not be grouped by an Order in Council amongst those possessions . . .
The Indian Extradition Act, 1903, has been adapted, but the Fugitive
Offenders Act, 1881, which was an Act of the British Parliament has been
left severely alone . . . The whole basis for the applicability of Part II of
the Fugitive Offenders Act, 1881. has gone .
It is, however, interesting to note that in Re (Government of India and
Mubarak Ali Ahmed [1952] 1 All E.R. 1060, where the Government of India
had requested the United Kingdom Government to extradite Mubarak Ali, Lord
Goddard C.J. had taken a different view. He observed, " It is clear that the
Fugitive Offenders Act, 1881, was in force as between India and this country
at the time when India became a republic, and it remained in force by the
joint operation of the Act of 1881 and the Order in Council of 1904 which is
still in force " (at 1062).
'" See " Statement of Objects and Reasons," the Extradition Bill, 1961.

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and amended law for the extradition of fugitive criminals to all

foreign States and Commonwealth countries.
II. SCHEME OF THE EXTRADITION ACT, 1962

The Act consists of five chapters and two Schedules. Chapter I
deals with preliminary matters, viz., short title, extent and
applicability of the Act, and definitions of some important terms.
Chapter II deals with the extradition of fugitive criminals to foreign
States and to Commonwealth countries in general, and Chapter III
deals with the return of fugitives only to those Commonwealth
countries having extradition arrangements with India. Chapter IV
is concerned with the return of accused or convicted persons from
foreign States or Commonwealth countries to India and Chapter V
deals with miscellaneous matters, e.g., jurisdiction as to offences
committed at sea or in the air, the power of the Central Govern-
ment to discharge a fugitive criminal under certain circumstances,
simultaneous requisitions from more than one State, certain
restrictions on surrender, etc. The First Schedule gives a list of
Commonwealth countries, and the second gives a list of extradition
offences.
The provisions of the Extradition Act, 1962, may be divided, for

the purposes of discussion, under four headings:
(A) General conditions of extradition.
(B) Certain restrictions on surrender.
(C) Procedure regarding extradition of fugitive criminals.
(D) Miscellaneous provisions.
(A) General Conditions of Extradition

Extradition may be defined as the handing over to a State of an
individual who has been accused or convicted of an offence com-
mitted within the territorial jurisdiction of that State by another
State in whose territory he has taken refuge for the time being.20
In international law, three general conditions for extradition
have emerged effectively:
(a) the principle of double criminality,
(b) the existence of an " extraditable " offence, and
(c) the existence of an extradition treaty.
Double criminality
From the definition of extradition given above, it is apparent
that the primary factor essential for the extradition of a fugitive is
20 See Oppenheim, International Law, 8th ed., Vol. I, p. 699.

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that he must have been accused or convicted of a " crime." The

question arises, by what law is the act charged or labelled as a
" crime " to be decided? Is it enough that the act charged for
which surrender is sought must be a " crime " by the law of
the requesting State alone? " As the surrender of an
accused person is made only in order that he may be tried for an
offence, it is essential that the act charged should be made criminal
by the law of the requesting State." 21 But that alone is not
enough. It must also have been made criminal by the law of the
asylum State; otherwise it may sometimes be put in an awkward
position, especially when the offender is a national of that State,
and when the act charged is not a crime in that State.22 So it is an
accepted principle of international law that the fugitive's act must
constitute an offence according to the laws of both countries-
commonly known as the principle of " double criminality." This,
however, does not imply that the offence must be given the same
name in both the places: it is enough if the act charged is criminal
in both countries. Thus it was observed in The King v. Dix,2" " It
might be that that (crime) in American law would be called larceny
by embezzlement. It would probably not be called either larceny or
embezzlement under our law, but would be called an offence against
section 81 of the Larceny Act. But the essential thing was to see
whether what the evidence showed prima facie that the prisoner
had done was a crime in both countries . . ."
In the Indian Extradition Act, 1903, in addition to the words
" Extradition Offence " defined in section 2 (b),24 the word
" offence " was also defined by section 2 (e) as " including any act
wheresoever committed which would, if committed in the States,
constitute an offence," thus providing for the rule of double
criminality in that enactment. But this word has been deleted in
the present Act, and only " extradition offence " has been defined
in section 2 (c).25 Under the prescribed procedure in the Act, the
magistrate is not required to investigate whether the act of the
fugitive is an offence under the penal law of the country requesting
extradition. Thus the principle of double criminality has not
21 M. O. Hudson, " The Factor Case and Double Criminality in Extradition "
(1934) 28 American Joutrnal of Internatiouial Law 274, 281.
22 Ibid. at 283.
23 (1902) 18 T.L.R. 231, 232.
24 2 (b): " Extradition offence " means any such offence as is described in the
First Schedule.
25 2 (c): " extradition offence " means
(i) in relation to a foreign State, being a treaty State, an offence provided
for in the extradition treaty with that State;
(ii) in relation to a foreign State other than a treaty State or in relation to
a Commonwealth country an offence which is specified in or which may
be specified by notification under the Second Schedule.

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122 International and Comparative Law Quarterly [VOL. 13
been given due recognition in the Act. It may, however, be

questioned whether the requesting State can try an offence if it is
not one provided by its own penal law. But that is a separate
issue, and in most treaties it is clearly mentioned that the act must
be an offence in both countries.
Extraditable ofence
Though it is true that extradition is granted when a person has

committed an offence, it must be remembered that the " offence "
must be an " extraditable offence." There are generally three ways
in which an " extraditable offence " or, what is commonly known
as an " extradition offence," may be incorporated into the
domestic law of extradition.
(1) The domestic law may leave the list of extraditable crimes
to be provided for in the extradition treaty with a foreign Stat
This was the method adopted by France, Great Britain and th
United States in the eighteenth and nineteenth centuries and th
practice developed greatly in the world during the nineteenth
century.26 It has been adopted by the present Act under section
2 (c) (i), and made use of in the extradition treaty with Nepal.27
(2) The domestic laws often enumerate the offences. The
Extradition Act, 1870, of Great Britain,28 and the Belgian law
concerning extradition 29 may be quoted as examples. The present
Act adopts this method in relation to a foreign State other than a
treaty State, or in relation to a Commonwealth country,30 and the
Second Schedule 3" gives a list of such offences.
(3) Some domestic laws define " extraditable offences " accord-
ing to the term of imprisonment. The extradition law of France
(March 1927) has made such a provision.32
The first and the second methods, under which it is necessary to
define an " extraditable offence," cannot be greatly decried, for the
26 See (1935) 29 American Journal of International Law, Supp., 73-74.

27 Under Art. 3 of the Treaty of Extradition between the Government of India
and the Government of Nepal, entered into in October 1953, some of the
offences for which extradition is to be granted in accordance with it are:
murder or attempt or conspiracy to murder; grievous hurt, rape, dacoity,
highway robbery, arson, desertion from armed forces, etc.
28 33 & 34 Vict. c. 52. See the First Schedule to this Act.
29 (1935) 29 American Journal of International Law, Supp., 362.
30 See 2 (c) (ii).
31 Some of the offences mentioned in the Second Schedule are: culpable homicide,
attempt to murder, offences relating to coins and stamps, damaging or destroy-
ing an aircraft in the air or attempting or conspiring to do so, ... etc.
32 Art. 4: " The acts which may give rise to extradition whether it is a question
of requesting it or granting it, are the following: (1) All acts punished by a
criminal penalty under the law of the requesting State. (2) Acts punished by a
correctional penalty under the law of the requesting State, when the maximum
penalty incurred is, by the terms of that law, two years or more .

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necessity of defining an " offence " as accurately as possib

its own advantages, but inherently it also has serious shortcom
For example, a listed offence may not connote the same idea in
the affected countries,33 and secondly, the list itself may n
sufficient to cope with changing conditions, as has been exem
by the treaties between Great Britain and the United States."
view of the fact that the recent trend among nations is tow
increasing the number of extradition cases, it is advisable to i
as many offences as possible under " extraditable offences."
can best be done by adopting the term of imprisonment
criterion for extraditability.35 The Draft Convention on Extra
drawn up by the Harvard Research (Article 2), the Draft Con
tion on Extradition drawn up by the Committee on Legal and
Administrative Questions of the Council of Europe in May 1954
(Article 1), as well as the Draft on Extradition, prepared by the
Asian-African Legal Consultative Committee at its third session
(Colombo), 1960 (Article 2), have favoured the adoption of this
method.
It is convenient to mention at this point that the Indian

delegation at the Third Session of the Asian-African Legal Consulta-
tive Committee (1960), although accepting the eliminative method,
which defines extraditable offences by reference to the maximum
or minimum penalty which may be imposed, was of the opinion
that the enumerative method, which specifies each offence for which
extradition may be granted, should be preferred.36
Extradition treaty
There was a time when such famous persons as Vattel and
Grotius, Kent and Story, Brougham and Campbell, were of the view
that it was the duty of a State under international law to extradite
a fugitive offender, but this never became an established practice in
33 See Re Gerber (1957) International Law Reports 493. In this case, Switzer-
land requested the extradition of a person who was alleged to have committed
and attempted to commit a number of offences in Switzerland, including
larceny, damage to property and " breaking the peace of a private home."
The two last-mentioned offences were unknown to German law as separate
offences, whereas the facts underlying the criminal acts charged justified a
prosecution for burglary according to German law.
34 While the Webster-Ashburton Treaty of 1842 between the United States and
Great Britain listed only six crimes as extraditable offences, the lists of
extraditable offences continued to expand during the nineteenth and twentieth
centuries, and the Extradition Treaty between these States, signed in 1932,
enumerates 27 classes of extraditable offences covering a wide range of
criminal acts.
35 Frederick Honig, " Extradition by Multilateral Convention " (1956) 5 I.C.
549, 553.
36 See the report of Third Session of Asian-African Legal Consultative Commit
p. 215.

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international law.37 Today it is firmly recognised that, unless a State

is bound by an extradition treaty, it can refuse extradition for any
crime.38 The view expressed by the Indian delegation at the Third
Session of the Asian-African Legal Consultative Committee, 1960,
however, was that " there could be no objection to voluntary
extradition of offenders even in the absence of treaty arrange-
ments." 39 The definition of " extradition offence " in the present
Act,2" as well as the heading of the Second Schedule-" Extradition
offences in relation to foreign States other than treaty States ..."-
indicate that extradition may be granted for the offences mentioned
therein to a State with which there is no treaty.40
An important question, however, arises, concerning "the fate
of an extradition treaty . . . when a State changes its constitutional
framework so fundamentally as to suggest that a new entity has
been created "? Oppenheim seems to be of the opinion that, in
such a case, the new State is not bound by the extradition treaties
entered into by the extinct State.41 The present Act in its clause
2 (d), however, defines " extradition treaty " as meaning " a treaty
or agreement made by India with a foreign State relating to the
extradition of fugitive criminals, and includes any treaty or agree-
ment relating to the extradition of criminals made before August 15,
1947, which extends to, and is binding on, India."
Though it is difficult to say that there was State succession in
1947, it is also not easy to appreciate this provision of the present
Act in view of the Supreme Court's opinion in Menon's case.42
It was held that British India before independence is not identical
with the Sovereign Democratic Republic of India after 1950; the
latter is no longer to be bound by the extradition treaties entered
into by the Crown, often on purely political grounds. The policy
of being bound by all the pre-independence extradition treaties
may lead to unhappy results, as was pointed out by Mr. H. N.
Mukherjee, M.p.43 India was the only Commonwealth country
37 Edwin D. Dickinson, in Encyclopaedia of Social Sciences, Extradition, p. 42,
states " While the obligation to extradite in the absence of treaty was
supported by reputable opinion as late as the early nineteenth century, it
never became established in international law."
38 U.S. v. Rauscher, 119 U.S. 407 at 411-412, ". . . Apart from them (treati
. . . there was no well defined obligation on one country to deliver up su
fugitives to another . . . and it has never been recognised as among thos
obligations of one government towards another which rest upon establis
principles of international law."
39 See the Report at p. 178.
40 L. C. Green, in " Recent Practice in the Law of Extradition " (1953) 6
Current Legal Problems at 287, favours this position: " It is fully compatible
with State sovereignty for a State to surrender a fugitive even though no
extradition treaty exists."
41 Oppenheim, International Law. 8th ed., Vol. 1, p. 159.
42 A.I.R. 1954 S.C. 517; (1954) S.C.J. 621.
43 Lok Sabha Debates, Aug. 17, 1961, on " Extradition Bill."

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JAN. 1964] India-The Extradition Act, 1962 ]25
among the twenty-three States to sign a Convention at Geneva

November 16, 1937, the purpose of which was to treat as crimi
offences acts of terrorism-including conspiracy, incitement an
participation in such acts-and in some cases to grant extradition
for such offences. He stressed that this Convention sought to br
political terrorism under the definition of ordinary crimes for
purposes of extradition. Such a provision might have been in th
interest of a foreign ruler, but India must reconsider these cas
carefully before being bound by such treaties and Conventions
after independence.44
The provision regarding India being bound by the pre-
independence extradition treaties, however, finds support in some
recent opinions. Thus L. C. Green has observed, ". . . although
there are inconsistencies in recent judicial practice in the field of
continuity, there is a tendency for extradition arrangements to
continue to operate despite changes in state personality." 45 This
observation has been supported by Paul O'Higgins.46
(B) Restrictions on Surrender

The following conditions of extradition are usually incorporated
in Extradition Acts and Treaties these days:
(a) Extradition shall not be granted for political offences.
(b) The request for extradition should not be time-barred.
(c) The rule of speciality.
(d) Non bis in idem.
(a) Political offence

" Although extradition in international law originated for the
purpose of punishing political offenders, those accused of political
crimes are today exempt from extradition." 47 It is now a recog-
nised principle of international law that political offenders should
not be extradited.48 This principle has been incorporated in section
31 (a) of the present Extradition Act, and runs as follows:
44 " The Convention for the Preservation and Punishment of Terrorism," (1938)
19 British Year Book of International Law 214. (Editorial Note.)
45 L. C. Green, " Recent Practice in the Law of Extradition " (1953) 6 Current
Legal Problems 274, 295.
46 - Irish Extradition Law and Practice " (1958) 34 British Year Book of Inter-
national Law 274, 295.
47 J. Menalco Solis R. " Private International Law-Extradition-Political
Offences " (1960) 24 Tul.L.R. 847, 848. The remarks in (1935) 29 American
Journal of International Law, Supp., 108, are also to the same effect:
" Historically, the non-extradition of political offenders is a comparatively
iecent development in international law."
48 ' Exclusion of political offenders from the scope of extradition laws appears

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" A fugitive criminal shall not be surrendered or returned

to a foreign State or Commonwealth country, if the offence in
respect of which his surrender is sought is of a political
character or if he proves to the satisfaction of the magistrate
or court before whom he may be produced or of the Central
Government that the requisition or warrant for his surrender
has, in fact, been made with a view to try or punish him for
an offence of a political character."
This provision is similar to section 3 (1) of the United Kingdom
Extradition Act, 1870.14 Two points arise for consideration:
First, when can it be said that an offence is of a political
character? In the humble view of the author, this appears to be
the most controversial issue in the law of extradition. No definition
of a " political offence " has yet been formulated to satisfy al
States.50 Under the circumstances, the most workable solution
seems to be that the question whether a particular act is or is not
a political offence should be determined by the requested State,
taking into consideration the circumstances of each case.51
Secondly, the provision about political offenders in the present
Act is divided into two parts. Under the first part, a fugitive
criminal shall not be surrendered if the offence in respect of which
his surrender is sought is of a political character. Under the second
part the surrender is prohibited if the fugitive criminal proves to
the satisfaction of the magistrate or court before whom he may
be produced, or of the Central Government, that the requisition or
warrant for his surrender has, in fact, been made with a view
to try to punish him for an offence of a political character. It
appears that the two parts are meant to deal with different sets
of circumstances. Under the first, it may appear from the evidence
given in support of the requisition by the requesting State, that
almost universal," in Re C. G. Menon, A.I.R. 1953 Madras 729, 735.

See also Palmerston's remark quoted by Green in (1953) 6 Current Legal
Problems 281. 49 33 & 34 Vict. c. 52.
50 " All attempts to define political
have been doomed to failure .. .," F. H. " Some Problems of the Law
of Extradition" (1959) 109 L.J. 198. " In view of the complexity and
the variety of the circumstances in which a political offence can be committed,
no attempt could be made to give a precise definition of these offences,"
European Convention on " Extradition," 1954. See also Oppenheim, Inter-
national Law, 8th ed., Vol. 1, p. 707, and (1935) 29 American Journal of
International Law, Supp., 113.
51 This view is supported by Art. 3 of the Draft on " Extradition " proposed
at the Third Conference (1960) of the Asian-African Legal Consultative
Committee: " Extradition shall not be granted for political offences. The
requested State shall determine whether the offence is political." J. Menalco
Solis R. in (1960) 34 Tul.L.R. at 848 has remarked that as historically there
was no generally accepted definition of a political offence, extradition treaties
left the task of determining what offences fell within that category to the
asylum State.

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the offence has a political character. Under the second, alth

the evidence tendered by the requesting country indicates t
of the " extradition offences " has been committed, the offender
may show that " in fact " the offence is of a political character.
Thus, if the State A requests for the Extradition of X on a charge
of murder, it may appear at the trial in the asylum State from
the evidence adduced by the requesting State, that the crime was
committed in the course of a rebellion. The matter will then fall
under the first part. On the other hand, if the evidence mere
shows that X killed another person by shooting him on a partic
day, the fugitive criminal may still give evidence to show that
shooting took place during a rebellion; and the case will then b
governed by the second part. The observations of Lord
Goddard C.J. in Re Kolczynski and others,52 dealing with section
3 (1) of the Extradition Act, 1870 (which is similar to the provision
in the present Act), are very enlightening on this point; he states:
" If in proving the facts necessary to obtain extradition, the
evidence adduced in support shows that the offence has a political
character, the application must be refused, but although the
evidence in support appears to disclose merely one of the scheduled
offences, the prisoner may show that, in fact, the offence is of a
political character. In other words, the political character of the
offence may emerge either from the evidence in support of the
requisition or from the evidence adduced in answer." 53
(b) Lapse of tinme

The (Indian) Extradition Act, 1962, in its section 31 (b)
provides: " A fugitive criminal shall not be surrendered or returned
to a foreign State or Commonwealth country, if prosecution for the
offence in respect of which his surrender is sought is according to the
law of that State or country barred by time." The provision
barring extradition due to lapse of time is one which is generally
incorporated in extradition treaties and statutes. But there is no
agreement as to whether the law of limitation of the requested
State should apply or that of the requesting State.54 The present
trend, however, seems to favour the view that extradition may be
refused when the offence has become time-barred under the law of
either the requesting or the requested State.55
52 [19551 1 All E.R. 31. 53 Ibid. at 35-36.

55 See Franco-German Treaty of Nov. 29, 1951; draft Art. 7 of the Convention
on " Extradition " by the Consultative Assembly of the Council of Europe,
1954; the Inter-American Draft Convention of 1956; the draft Art. 10 on
' Extradition " by the Asian-African Legal Consultative Committee, Third
Session, 1960.

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(c) Rule of speciality

The principle of speciality, according to which extradition is
granted only on the condition that the person extradited will not
be tried or sentenced for any offence other than that for which
extradition is granted, is incorporated in many national extradition
statutes 56 and treaties."5 This rule finds a place in section 31 (c) of
the present Act, and runs as follows:
" A fugitive criminal shall not be surrendered or returned to
a foreign State or Commonwealth country, unless provision
is made by the law of the foreign State or Commonwealth
country or in the extradition treaty with the foreign State
or extradition arrangement with the Commonwealth country,
that the fugitive criminal shall not, until he has been restored
or has had an opportunity of returning to India, be detained
or tried in that State or country for any offence committed
prior to his surrender or return, other than the extradition
offence proved by the facts on which his surrender or return is
based."
Such a provision operates as a safeguard against the abuse

of surrender by limiting trial and punishment to the particular act
or acts for which extradition was granted. If the surrender would
mean full freedom to the requesting State to deal with the offender
on whatever grounds it thought fit, the whole procedure following
in the asylum State in investigating the nature of the crime before
extraditing " would be rendered farcical." This section of the Act
requires the requesting State to have a similar provision in its
extradition law or treaty with India before surrender would be
permitted. In a recent trial 58 in India one of the grounds for
refusing extradition was the non-fulfilment of this condition on the
part of the requesting State.
(d) Non bis in idem

" The rule non bis in idem is a rule of general application, which
opposes itself to all practices, both municipal and international,
which would subject a person to repeated harassment for the same
act or acts." 59 So under this rule, which provides against double
56 (1935) 29 American Journal of International Law, Supp., 214, note 1.
57 Art. 8 of the Treaty of Extradition between Government of India and the
Government of Nepal (Oct. 1953) states: "A person surrendered shall in no
case be detained or tried in the territory of the Government to which the
surrender has been made for any other crime or on account of any matter
other than those for which extradition has taken place until he has been
restored, or had an opportunity of returning, to the territory of the Government
from which he was surrendered."
58 Extradition of the Soviet sailor, V. S. Tarasov (March 1963).

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jeopardy for the same act, extradition may be refused if

offender has already been tried and discharged or punished,
still under trial in the requested State, for the offence for w
extradition is demanded. The present Extradition Act does not
make a specific mention of it, but the rule is incorporated in the
Criminal Procedure Code, section 403. It is also worth mentioning
that such a provision appears in the Extradition Treaty between
India and Nepal entered into during October 1953.60
These are the four most important restrictions on extradition
that are generally found in statutes and treaties, and three of them
have been incorporated in the present Act as discussed above. But
the Act goes a step further and empowers the Central Government
to discharge a fugitive criminal if it appears (to the Central Govern-
ment) that, by reason of the trivial nature of the case, or by reason
of the application for the surrender or return of a fugitive criminal
not being made in good faith, or in the interests of justice, or for
political reasons or otherwise, it is unjust or inexpedient to sur-
render or return the fugitive criminal.61 This provision is somewhat
similar to section 10 (as well as section 19) of the Fugitive Offenders
Act, 1881, with an important change, namely that, while that Act
empowers a superior court to discharge the fugitive, the present
Act vests the power in the Central Government. But even under
the Fugitive Offenders Act, the ultimate authority to extradite
rests in the Secretary of State.62 In a recent case in the United
Kingdom, two persons were imprisoned to await their return to
the Commonwealth country of Cyprus. Their applications for
habeas corpus and for relief under section 10 of the Fugitive
Offenders Act were dismissed by the House of Lords, but the Home
Secretary, Mr. Butler, presumably on the authority of section 6 (of
the Fugitive Offenders Act) intervened and their extradition to
Cyprus was refused.63
The power reserved by the Central Government under section 29
of the present Act is far greater than the one given to the Secretary
of State under the Fugitive Offenders Act, so much so that the
Central Government may even order the stay of any proceedings
under this Act or direct any warrant issued or endorsed under this
60 Art. 6. " Extradition shall not take place if the person whose extradition is
claimed by one of the Governments has already been tried and discharged or
punished or is still under trial in the territory of the other government for
the crime for which extradition is demanded."
61 s. 29.
62 s. 6, ". . . if the fugitive is so committed in the United Kingdom, a Secretary
of State . . . may if he thinks it just . .. order that fugitive be returned to . ..
Her Majesty's dominions. ..
63 " The Fugitive Offenders Act " [1962] Crim.L.R. 350.
I.C.L.Q.-13 5;

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130 International and Comparative Law Quarterly :[VOL. 13
Act to be cancelled. It is difficult to forecast how the Central

Government will use this power and only the future will thro
light on it, but before leaving this issue the observations of Rob
E. Clute 64 on the use of section 10 of the Fugitive Offenders
may seem appropriate: "1 The discretion given to the magistra
under section 10 to refuse the return of a fugitive if it appears
the application has not been made in good faith or the punishm
will be unjust or over severe, is rarely exercised." 65
There is a remarkable change in the present Act from the o
practice that existed in most Commonwealth countries, includi
India. Under the Fugitive Offenders Act, 1881, which regul
the return of a fugitive from justice inter se the Commonwea
countries, the safeguards that are generally provided in an ext
dition Act (such as are mentioned in section 31 of the present A
e.g., the principle of non-extradition of political offenders, the r
of speciality and lapse of time, etc.) were not included. But sec
32 of the present Act specifically mentions that those safeguards
be equally available to an offender, whether he is from a forei
State or Commonwealth country, in these words:
" Notwithstanding anything to the contrary contained i
section 3 or section 12, the provisions of sections 29 and 31
shall apply without any modification to every foreign State
Commonwealth country."
This is only in line with the current judicial observations

well as academic opinion.66
64 " Law and Practice in Commonwealth Extradition," 8 A.J.Comp. Law 15.

65 Ibid. at 22.
66 Thus in Re Government of India and Mubarak Ali Ahmed [1952] 1 All
1060, Lord Goddard C.J. observed at 1063: "I am quite sure that in a prop
case the court would apply the same rules with regard to applications un
the Fugitive Offenders Act, 1881, as it does under s. 3 (1) of the Extradit
Act, 1870. If it appeared that the offence with which the prisoner w
charged was in effect a political offence, no doubt this court would
refuse to return him." The observation made in the " Fugitive
Offenders Act " [1962] Crim.L.R. 350 is to the same effect:
The Act seems to call for review. The powers of the courts under the Act
are those suitable to a time before " Her Majesty's dominions " included
independent States and even republics having the special double-sided
relationship with this country characteristic of the modern Commonwealth.
Accordingly, the fact that the offence alleged against a fugitive is a political
one is not in itself (as it is under the Extradition Act, 1870) ground for
refusing to return; nor does that fact in itself render his return unjust or
oppressive. The courts cannot, therefore, operate the Act in a manner fully
consistent with modern political realities. The responsibility passes to the
Home Secretary with unhappy results. This position has also been supported
by: (1) Paul O'Higgins in " Extradition within the Commonwealth " (1960)
9 I.C.L.Q. 491, and (2) Robert E. Clute in "Law and Practice in
Commonwealth Extradition " 8 A.J.Comp. Law 27-28.
It is, however, to be noted that the House of Lords, in Zacharia v.
Republic of Cyprus and another [1962] 2 All E.R. 438, dissented from the
dictum of Lord Goddard in Mubarak Ali's case, and felt that political offences

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(C) Procedure regarding Extradition of Fugitive Criminals

The procedure regarding extradition of a fugitive criminal t
requesting State has been dealt with in Chapters II and III
Act. Chapter II deals with " Extradition of fugitive crimin
foreign States and to Commonwealth countries to which Cha
III does not apply," and Chapter III deals with " return of
fugitive criminals to Commonwealth countries with extradition
arrangements."
Procedure under Chapter II

When a requisition is made to the Central Government under
Chapter II by a foreign State or a Commonwealth country, for the
surrender of a fugitive criminal, the Central Government may, if it
thinks fit, issue an order to any magistrate (who would have had
jurisdiction to inquire into the offence if it had been an offence
committed within the local limits of his jurisdicton) directing him to
inquire into the case. The magistrate then shall issue a warrant for
the arrest of the fugitive criminal and when the latter appears before
him, the magistrate shall, as required under section 7 of the Act,
inquire into the case in the same manner and shall have the same
jurisdiction and powers, as nearly as may be, as if the case were
one triable by a court of session or High Court. He shall take such
evidence as may be produced in support of the requisition by the
foreign State or Commonwealth country and also on behalf of the
offender, including any evidence to show that the offence of which
the fugitive criminal is accused or has been convicted is an offence
of political character, or is not an extradition offence.
On taking the evidence, if the magistrate is of the opinion that
a prima facie case is not made out in support of the requisition, he
shall discharge the fugitive criminal. On the other hand, if a prima
facie case is made out in support of the requisition, he shall report
the result of his inquiry to the Central Government and shall
forward, together with such report, any written statement which
the offender may desire to submit for the consideration of the
Central Government. In the meantime, the magistrate may com-
mit the fugitive criminal to prison to await the orders of the Central
Government. If, upon receipt of the report and the statement of the
fugitive, the Central Government is of the opinion that the fugitive
criminal ought to be surrendered to the foreign State or Common-
wealth country, it will arrange the same.
could not be covered under the Fugitive Offenders Act, 1881 (as per Viscount
Simonds at 444, Lord Radcliffe at 446-447, Lord Hodson at 456, and Lord
Devlin at 460-461).

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Procedure under Chapter III

When a warrant issued for the apprehension of a fugitive
criminal in a Commonwealth country to which this Chapter applies
is received by the Government of India, it may indorse such a
warrant, if satisfied that the warrant was issued by a person having
lawful authority to issue the same. This indorsed warrant shall be
sufficient authority to apprehend the person named in the warrant
and to bring him before any magistrate in India.
If, when the fugitive offender is placed before him, the magis-
trate is satisfied on inquiry that the indorsed warrant for the appre-
hension of the fugitive criminal is duly authenticated and that the
offence of which the person is accused or has been convicted is an
extradition offence, he shall commit the offender to prison to await
his return and shall send a certificate of the committal to the
Central Government.
On the other hand, if he is not satisfied as to either of these
questions, he may detain the person in custody or release him on
bail, pending the receipt of the orders of the Central Government.
In both cases the magistrate shall report the result of his inquiry
to the Central Government and forward together with such report
any written statement which the fugitive criminal may desire to
submit for the consideration of the Government. The matter will
then rest with the Central Government.
Difjerences in procedures under Chapters II and III

Thus it is apparent that the return of a fugitive offender under
Chapter II is more analogous to normal extradition procedure under
the Law of Nations and is similar to that laid down in the Extra-
dition Act, 1870 (sections 9 and 10), and the Indian Extradition
Act, 1903 (section 3). The procedure adopted by Chapter III is,
in spirit, the same as provided by the Fugitive Offenders Act, 1881
(sections 13 and 14).
Prima facie case. One of the main differences lies in the matter
of proof of guilt. Under Chapter II, the magistrate may expend
considerable effort on proof of guilt before a fugitive offender is
returned: he has to be satisfied by evidence that there is a prima
facie case 67 against the offender; but the return of a fugitive
criminal under Chapter III is extremely informal with little concern
as to proof of guilt, the need for such evidence having been dis-
pensed with: all that is required is the satisfaction of the magistrate
87 A prima facie case " means at first blush or at first sight, a complete case
against the accused . . . in order to prove a prima facie case, there must be
evidence direct or circumstantial on each element." W. J. O'Hearn,
" Extradition," 8 Can. Bar Rev. 175, 180-181.

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about the authenticity of the indorsed warrant and as to the offence

charged being an extradition offence. So there is a substantial and
material difference in the procedures of surrendering a fugitive
criminal prescribed by the two chapters of the Act. The important
question is whether this difference in procedure in extraditing a
fugitive offender to two different countries, one falling under
Chapter II and the other under Chapter III, is justified or reason-
able in view of Article 14 of the Indian Constitution,0"s which
guarantees equal protection of laws within the territory of India.
The validity of an extradition procedure that dispenses with the
necessity of proving a prima facie case against the offender cannot
be assailed on that basis alone, for the demand of prima facie
evidence of guilt is based primarily on reciprocity, and eventually
on the municipal law of the extraditing country; in a number of
bilateral treaties States have expressly done away with the require-
ment of establishing a prima facie case of guilt prior to extradition.
Article 14 of the Indian Constitution, therefore, seems to be
infringed only on the ground that, while the extradition procedure
applicable to a fugitive from countries falling under Chapter II
demands such evidence, it is not necessary for a fugitive from a
country falling under Chapter III.
It is well known that under Article 14 reasonable classification
is permissible provided that it is based upon some real and s
stantial distinction bearing a reasonable and just relation to the
object sought to be attained; the classification cannot be made
arbitrarily and without any substantial basis.69 In the present Act,
the basis for the classification (providing different procedures in
Chapters II and III) appears to be " reciprocity " and
" geographical nearness." 70
That geographical nearness cannot be a basis for reasonable
classification was very ably stressed by Rajagopalan J. in C. G.
Menon's case.71 The question whether reciprocity can satisfy the
68 The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.
69 Fazl Ali J. in The State of Bombay v. F. N. Balsara, A.I.R. 1951 S.C. 318.
70 Introducing the Extradition Bill in Lok Sabha on August 17, 1961, the Hon.
Law Minister observed, " It was felt absolutely necessary that we must amend
the law relating to extradition at least to enable our Government to get the
criminals who have gone over to Commonwealth countries, especially Pakistan
and neighbouring countries."
71 A.I.R. 1953 Mad. 729 at p. 736. " The need for offering evidence to show that
prima facie the offender is guilty of the crimes with which he has been
charged by the country asking for his extradition has been well recognised.
Though it may not be an integral part of the law of extradition of every
State in relation to every other State, it is certainly a normal feature, and
one can say, almost a universal feature of extradition laws. To dispense
with such a need, there must, in my opinion, be some basis better than
geographical contiguity alone, if the test of equal protection of the laws

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test of " reasonableness " of the classification was left open by the
Madras High Court in the above case,72 which dealt with the Fugi-
tive Offenders Act, 1881. But even if it can be argued that recipro-
city can be a basis for reasonable classification under Article 14,
the position will certainly not be free from doubt and the author
would agree with Rajagopalan J. that it would be difficult
" To hold that the discharge of the duty India owes to her-
self and the other States in the committee of nations to provide
for the extradition or the surrender of the fugitive offender can
be any the less effective if prima facie proof of the guilt of the
offender is asked for in all cases of demands for the surrender
of a fugitive offender whichever be the country that prefers that
demand." 73
If an Indian national, after committing an extraditable offence,

escapes to India from a Commonwealth country with which India
has extradition arrangements (falling under Chapter III), one pro-
cedure has to be followed, whereas if he flees from a foreign State or
Commonwealth country with which there is no such arrangement
(i.e., under Chapter II) a different procedure has to be followed
Since India has become a sovereign democratic republic whose
citizens similarly situated are entitled to similar treatment there
does not seem to be any justifiable basis for distinction. Any Indian
citizen whose extradition is sought under Chapter III may legiti-
mately ask the question as to why a less advantageous procedure
should be adopted against him, while another individual similarly
situated should have a more favourable procedure.
Proof of the political character of the olence. Another difference

in the procedures laid down in Chapters II and III concerns the
political character of an offence. As already discussed, the principle
of non-extradition of political offenders (section 31 (a)) has been
incorporated in the Act. Section 32 of the Act makes it quite clear
that relief on this ground will be available to all offenders alike,
whether from a foreign State or a Commonwealth country. But
under Chapter II (section 7 (2)), the magistrate shall take
any evidence to show that the offence of which the fugitive criminal
is accused or has been convicted is an offence of political character
..., while under Chapter III (section 17) the duty of the magistrate
within the territory of India specifically provided by Art. 14 of the

Constitution is to apply."
72 Ibid. at 735 " Whether reciprocity can satisfy the test of reasonableness of the
classification that underlay Parts I and II of the Fugitive Offenders Act, does
not arise for consideration. As I see it, reciprocity was the result of the
classification not the basis for it."
73 Ibid. at 736.

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is only to hold an inquiry to decide whether the indorsed warr

is duly authenticated and the offence of which the person is acc
or has been convicted is an extradition offence. Of course, both
the procedures permit an offender to submit a written statement for
the consideration of the Government. Thus it may be said that,
while an offender falling under Chapter II has an opportunity to
satisfy the judiciary or the executive regarding the political nature
of his crime, one falling under Chapter III will have to look for
such relief mainly to the executive.
(D) Miscellaneous Provisions

Chapter V of the Act deals with miscellaneous provisions. The
more important provisions only will be discussed here.
Jurisdiction
In view of the importance air travel is now attaining in everyday

life, the jurisdiction of this Act has been extended to offences com-
mitted not only on board any vessel on the high seas, but also on
any aircraft while in the air outside India which comes into any
aerodrome in India.74
Multiple requisitions
Sometimes there may be concurrent demands for the surrender
of a fugitive offender on behalf of more than one State, if the person
sought has committed the same offence in different States or differ-
ent offences in different States. The present Act provides that in
such a case the Government of India may surrender the fugitive to
such State or country as it thinks fit, taking into consideration the
circumstances of the case.75 Thus it is apparent that the Govern-
ment of India's policy is to decide each case of simultaneous
requisitions on its own merits. It does not want to curtail its
freedom in this matter by incorporating such principles into the
Act as the priority of the request, gravity of the offence, nationality
of the offender, etc.76
74 s. 23: " Where the offence in respect of which the surrender or return of a
fugitive criminal is sought was committed on board any vessel on the high
seas or any aircraft while in the air outside India or the Indian territorial
waters which comes into any port or aerodrome of India, the Central
Government and any magistrate having jurisdiction in such port or aerodrome
may exercise the powers conferred by this Act."
75 s. 30: " If requisitions for the surrender of a fugitive criminal are received
from more than one foreign State or Commonwealth country or from any
foreign State and any Commonwealth country, the Central Government may,
having regard to the circumstances of the case, surrender the fugitive criminal
to such State or country as that Government thinks fit."
76 Art. 13 of the Draft on Extradition prepared by the Asian-African Legal
Consultative Committee at its Third Session (1960), runs as follows: If

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Extradition of Indian nationals

There is a significant omission in the Act. This is with regard
to Indian nationals. The precise question is whether India should
extradite its nationals on a charge of having committed an extradit-
able offence in a foreign State, or whether they should be tried in
India itself. The Act does not throw any light on the matter.
The majority of the States decline to extradite their own
nationals, and many of them 77 have expressly provided in their
municipal legislation for the principle of non-extradition of their
nationals. Refusal to surrender a national of the extraditing
country appears to rest on no other intelligible basis than the
unwillingness of that country to expose its nationals to a trial in a
foreign court.'" Such States punish the offenders according to the
laws in force for crimes committed abroad. But " The municipal
statutes of Great Britain, of other members of the British Common-
wealth of Nations and of States under British mandate or guidance
. .. contain no provisions as to non-extraditability of nationals and
so permit their extradition." 79 It is, therefore, implied in the
present Extradition Act, in line with the existing practice, that
India adheres to the principle of extraditing its own nationals. The
memorandum on " Extradition '" submitted by the Government
of India to the Asian-African Legal Consultative Committee at its
Third Session (Colombo, 1960), leaves no doubt on this matter.80
requests for extradition are made concurrently by several States in respect

of the same person the requested State shall freely decide thereon, taking
into consideration all the circumstances of the case and, in particular, the
priority of the request, the gravity of the offence and the penalty to be
imposed thereof (see p. 204 of the report). Art. 8 of the Draft Convention
on " Extradition " by the Harvard Research (1935) 29 American Journal of
International Law, Supp., is also to the same effect.
77 " Austria and Hungary, Costa Rica, Czechoslovakia, France, Estonia, Latvia,
Lithuania, Haiti, Liechtenstein, Norway, Panama, Peru, Switzerland, Turkey
and Uruguay." See (1935) 29 American Journal of International Law, Supp.,
125, note 2.
78 On this point F. H. in "Some Problems of the Law of Extradition"
(1959) 109 L.J. 198, observes, " The refusal of States to extradite their
own nationals is due . . . at least historically . . . to a rooted suspicion
that foreign countries cannot be trusted to administer justice fairly."
80so " It is, however, not easy to justify on principle the policy of refusing to
extradite nationals. The theory that a State should try its own nationals
for crimes wherever committed fails as a suggestion for two reasons: (a)
because in many cases it is impracticable to try a crime committed in another
country on account of the impossibility of securing the relevant evidence and
(b) because the argument cannot have any application to a national who
has escaped to his own country after conviction in a foreign country since
on general principles of justice such a person may not be tried again for
the same offence. It has been suggested that if a national is alleged to have
committed an offence abroad and returns home then it is only fair that he
would be tried in his own home country according to the laws and procedure
with which he is familiar. It has been said that if a foreign national
commits an offence in another State and then leaves that State for his
own home State, that State may well be rid of him and the necessity of

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Professor Brierly's Report to the Committee of Experts for

Progressive Codification of International Law, quoted in the Harv
Research,s' throws some useful light on this point. An analysis
the extradition treaties of India indicates that in many cases it
not bound to surrender its own nationals." In a few treaties, with
Luxembourg, Spain and Switzerland, India is bound to surrender
nationals while the other party is not.s8 The Treaty of Extradi
between India and Nepal (1953) provides that only nationals
the requesting State may be extradited.84
III. CONCLUSIONS
It will thus appear that the main principles incorporated in

(Indian) Extradition Act, 1962, are not dissimilar to those usua
adopted in extradition legislation. It can be said without exagg
tion that the new Act has not only repealed but also cured ma
of the defects of the previous legislation and decrees in this f
The most important change has been made in connection w
prohibiting extradition of political offenders to Commonweal
countries with extradition arrangements. " In the light of the
changed circumstances and, in particular, in view of the fact that
there are considerable differences between the political institutions
adopted in different parts of the Commonwealth, it . . . (was) time
to review the position of political offenders in intra-Commonwealth
extradition." 85 One must, however, admit that the dispensation
of a basic principle, viz., proof of a prima facie case against the
offender, in the procedure to be adopted with these countries, is
still a weak link in the Act.
punishing that offender may not appear to be so great as that of a nation

of a State. It has also been said that in many countries notions of administr
tion of criminal justice differ widely and he may not receive a fair trial. The
considerations, however, do not seem to be sufficient justification for refusa
to extradite a State's own national since a person who commits an offence
in another State must be expected to take consequences like all other perso
in that State according to the laws in force there." See pp. 165-166 of the
report.
s1 (1935) 29 American Journal of International Law, Supp., 135.
82 A. Palaniswami, " The Law of Extradition in India " (1954) III Indian Year
Book of International Affairs 336, gives a list of such countries: " (i) A
provision that neither of the contracting parties may surrender its own
subjects is contained in treaties with Denmark, France, Germany, Guatemala,
Haiti, Italy, Nicaragua, Norway, Portugal, Salvador, Sweden and Uruguay.
(ii) Provision that both contracting parties are at liberty to surrender their
own subjects at their discretion, is found in treaties with Argentina, Austria,
Belgium, Bolivia, Chile, Colombia, Cuba, Liberia, Mexico, Morocco, the
Netherlands, Panama, Peru, Roumania and San Marino."
83 Ibid.
84 Art. 2, " Neither Government shall be bound in any case to surrender any
person who is not a national of the country by the Government of which th
requisition has been made .. ."
85 Paul O'Higgins, " Extradition within the Commonwealth " (1960) 9 I.C.L.Q.
486, 491.

14.139.213.147 on Tue, 12 Apr 2022 13:20:42 UTC
There does not seem to be any great harm in extraditing Indian

nationals who have committed extraditable offences in foreign
countries. It is, however, suggested that as a principle of recipro-
city, they should not be extradited to those countries which refuse
to extradite their own nationals.
Provisions regarding non-extradition of offenders against
religion and of military deserters are found in many extraditio
treaties, but have not been included in the present enactment.
In conclusion, it can be said that the Indian Extradition Act,
1962, provides a positive step forward in Indian legislation for the
promotion of international relations.

14.139.213.147 on Tue, 12 Apr 2022 13:20:42 UTC

India - The Extradition Act, 1962

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India - The Extradition Act, 1962

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India: The Extradition Act, 1962

Stable URL: https://www.jstor.org/stable/756096

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A TIMELY revision of the Indian law of extradition has been effected

I. EXTRADITION ACTS APPLICABLE IN BRITISH INDIA

The Extradition Act, 1870 1 (enacted by the Parliament of the

* Reader in International Law, Nagpur University.

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dealt with the extradition of fugitive criminals from and to

Indian Native States

The Indian Native States had a separate political existence of

5 Act No. XV of 1903. 6 44 and 45 Vict. c. 69.

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If a foreign criminal took shelter in an Indian Native State,

After August 15, 1947

(b) The suzerainty of His Majesty over the Indian States

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their execution of Instruments of Accession, no such law, ho

After January 26, 1950

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and amended law for the extradition of fugitive criminals to all

II. SCHEME OF THE EXTRADITION ACT, 1962

The provisions of the Extradition Act, 1962, may be divided, for

(A) General Conditions of Extradition

20 See Oppenheim, International Law, 8th ed., Vol. I, p. 699.

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that he must have been accused or convicted of a " crime." The

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been given due recognition in the Act. It may, however, be

Though it is true that extradition is granted when a person has

26 See (1935) 29 American Journal of International Law, Supp., 73-74.

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necessity of defining an " offence " as accurately as possib

It is convenient to mention at this point that the Indian

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international law.37 Today it is firmly recognised that, unless a State

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among the twenty-three States to sign a Convention at Geneva

(B) Restrictions on Surrender

(a) Political offence

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" A fugitive criminal shall not be surrendered or returned

almost universal," in Re C. G. Menon, A.I.R. 1953 Madras 729, 735.

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the offence has a political character. Under the second, alth

(b) Lapse of tinme

52 [19551 1 All E.R. 31. 53 Ibid. at 35-36.

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(c) Rule of speciality

Such a provision operates as a safeguard against the abuse

(d) Non bis in idem

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jeopardy for the same act, extradition may be refused if

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Act to be cancelled. It is difficult to forecast how the Central

This is only in line with the current judicial observations

64 " Law and Practice in Commonwealth Extradition," 8 A.J.Comp. Law 15.

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(C) Procedure regarding Extradition of Fugitive Criminals

Procedure under Chapter II

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Procedure under Chapter III

Difjerences in procedures under Chapters II and III