EXTRADITION AND INTERNATIONAL LAW

Meaning:

 Oppenheim’s- “Extradition is the delivery of an accused or a convicted individual to the

State where he/she is accused of or has been convicted of a crime, by the State on whose
territory he/she happens for the time to be.
 Black’s Law Dictionary extradition means: ―The surrender by one State or Country to
another of an individual accused or convicted of an offence outside its own territory and
within the territorial jurisdiction of the other, which, being competent to try and punish
him, demands the surrender.
 J.G. Starke: ―The term extradition‟ denotes the process whereby under a concluded treaty
one State surrenders to any other 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. Though extradition is granted in
implementation of the international commitments of the State, the procedure to be
followed by the courts in deciding, whether extradition should be granted and on what
terms, is determined by the municipal law of the land.”
 The state where the accused was found is called “territorial state” and state where the crime
is committed called “requesting state”.
 The Extradition is not solely derived from International Law as the Extradition is mainly
based on bi-lateral and multi-lateral treaties and national legislations.
 There is not a single multilateral treaty which is dedicated solely to the issue of extradition-
it is developed with the increasing number of treaties.
 One of the most important phenomena which changed some fundamental principles of
extradition has been acts of terrorism.
 Terrorism is commonly understood to refer to acts of violence that target civilians in the
pursuit of political or ideological aims.
 There has been a number of terrorist attacks throughout the globe but none of them had
prompted the states to revamp their counter-terrorism mechanisms, like it did post-9/11.
 Before 9/11 attack had happened, there have been very limited efforts to have collective
counter-terrorism efforts on behalf of the nations as well as the international organizations.
 Post 9/11 the world has consolidated its efforts to counter-terrorism, by both legal and at
times extra-legal mechanisms- declaring “war on terror”

Purpose of extradition:

 To prevent the criminals who flee from a jurisdiction to escape from punishment for a
criminal offence they have been accused or convicted of. Criminals are extradited to avoid
impunity.
 Extradition acts as a deterrent effect to criminals that they cannot escape punishment by
fleeing to another state.
 Criminals are surrendered to safeguard the interest of the territorial state.
 Based on reciprocity- yields diplomatic ties.
 Enhances national co-operation.

International framework:
  Model Treaty on Extradition, 1990- UNGA resolution on the assistance of states in
negotiating and concluding bilateral agreements aimed at improving cooperation in matters
of crime prevention and criminal justice.
 The United Nations Model Law on Extradition (2004)- UNGA on improving cooperation.

Legal basis for extradition:

 Treaties:
 Bilateral
 Regional
 Crime/terrorism conventions: (around 17 instruments against terrorism with measures of
extradition)
 UN Convention Against Transnational Organised crime (2000)
 UN Convention Against Corruption (2003)
 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
(1998)
 Hague convention for suppression of unlawful seizure of aircraft (1970)
 International Convention for the Suppression of Terrorist Bombings (1997)
 Other modes:
 Basis of reciprocity
 Allowed under domestic laws

Necessary conditions for extradition:

 Extraditable persons:
 The concern individual must be an extraditable person.
 The uniform state practice is that the requesting state may obtain the surrender not
only of its own nationals but also the nationals of a third state.
 However, in case of a request for extradition of its own nationals, many states refuse.
 This is based on the argument that they have the right to exercise criminal
jurisdiction over their nationals even though the offence is committed in another
state- based on the belief that crime committed by one of their nationals anywhere
in the world constitutes a violation of their own law as much as the law of the state
in which it is committed.
 Therefore, in most extradition clause in treaties, it states that neither party shall be
obliged to extradite its nationals.
 Some nationals laws also prohibit extradition of its own nationals- constitutional
prohibition in Germany.
 Another category who cannot be extradited- those who are already tried and
punished for the same crime for which extradition is sought for- rule of double
jeopardy.
 Extraditable crimes:
 Specified crimes:
 No state can legally demand the surrender of person guilty of an offence not
specified in a treaty.
 Likewise, no state can demand extradition of a person not when there is no
treaty at all between the states concern.
 Strictly speaking, the list of crimes mentioned in the treaty between states
concerns are the extraditable crimes.
 Principle of Double Criminality (PODC)
 the question as to what act or conduct constitutes a particular crime may differ from
country to country.
 The activity of the fugitive should be such that it is considered a crime in both the
countries
 The offence must be punishable under the laws of both parties, subject to a
minimum period of imprisonment.
 This rule is followed by most states.
 This principle is declining due to recent developments in European laws of
extradition.
 Extradition Act 2003 (UK)- if imprisonment sentence for offence is 1 year or more-
without any requirement that it is an offence in UK- extraditable.
 Rule of speciality:
 widely recognized principle
 limits the power that the requesting state has over the person so surrendered
 principle is treated as a safeguard to protect the rights of an individual sought to be
extradited
 requires that a person extradited to a requesting state is not to be detained,
prosecuted, or punished by the requesting state for any offence apart from that for
which extradition was granted.
 US v. Rauscher (1886)
 Fugitive offender was extradited from UK to US to be tried for a murder
committed on board an American ship on the high seas.
 Since there was no strong evidence to prove the charge of murder, he was
instead convicted of an offence of grievously hurting a man named Johnson.
 The SC held that it was in violation of extradition treaty and the rule of
international law.
 Held the person brought within the jurisdiction of the court by virtue of
extradition can only be tried for which he had been charged and no other
offence- even if the offender does not complain against the violation of this
rule.
 Exceptions under general principles of international law:
 As a general rule, following categories of offences are not subjected to extradition
proceedings:
 Time barred.
 Already tried and convicted. (non bis in idem)
 Religious offence:
 Heresy, Blasphemy, apostasy etc.
 Military offence:
 Broadly speaking, military offences fall into 2 categories: offences under
ordinary criminal law and those which relates specifically to military matters.
 Only offences which are specifically related to military offences, extradition
will not apply.
 Article 3(c) of Model treaty on extradition states that extradition shall not
be granted if the offence for which extradition is requested is an offence
under military law, which is not also an offence under ordinary law.
 Political offence:
 One of the basic accepted Principle in international law is that the Political
Offences may not give rise to extradition.
 Under existing extradition treaties, as well as in most-systems of municipal
laws, extradition shall not be granted if the offence for which extradition
requested is regarded by the requested state as a Political Offence or as an,
offence connected with Political Offence.
 The Belgian Government first formulated the political offence exception in
terms of non-extradition in Belgium's Extradition law of 1833- later other
states followed suit
 Article 3(a) of Model treaty on extradition states that extradition shall not
be granted if the offence for which extradition is requested is regarded by
the requested state as an offence of a political nature
 Article 3(1) of the European Convention on Extradition (1957) also provides
that “Extradition shall not be granted if the offence in respect of which it is
requested is regarded by the requested party as a political offence or as an
offence connected with a political offence
 Article 4(4) of the Inter American Convention (1981) stipulates similar
provisions
 The Indian Extradition Act (1962) also makes the law for such exclusion.
Section 31 (1) of the Act states that a fugitive criminal shall not be
surrendered or returned to a foreign state if the offence in respect of which
his surrender is sought is of a political character.
 Base on the principle that recognition must be given on right of people to
rebel against oppressive governments
 The reason of the exemption can be found in the well-founded
apprehension that to surrender unsuccessful rebels to the demanding state
would surely amount to delivering them to their summary execution or in
any event, to the risk of being tried and punished by a justice colored by
political passion- no fair trial proceeding.
 These states began the practice of granting asylum to those, whose coup
attempts failed – political opinion as a ground for refugee status even
under Refugee convention 1951.
 Thus, to surrender political rebels has been looked upon with a singularly
marked antipathy and the granting of asylum to such refugees has
generally come to be regarded as a moral duty.
 Asylum case (ICJ 1951)- Haya Torres- political leader who after instigating
military rebellion in Peru was given asylum in Columbian embassy in Lima.
ICJ held that although Havana convention expressly prescribes the surrender
of common criminal to local authority, no obligation of the kind existed in
regard to political offences.
 Difficulty in determining what is a political crime and what is a non-
political crime- no attempt to formulate a satisfactory concept of political
crimes – circumstantial- most controversial.
 In the absence of internally accepted definition the courts and legal writers
tend to categorize the political offence into:
ᴏ Pure political offender:
  A Pure Political Offence is one that is exclusively aimed at
the state or against political interest, without injuring
private persons, property or interest and not accompanied
by the commission of common crime
 Such offences are directly aimed at the government/state
itself and have no of the elements of ordinary crimes. They
include treason, sedition, espionage
ᴏ Relative political offender:
 The Relative Political offence can be an extension of the
purely political offence, when in conjunction with the latter,
a common crime is also committed.
 Each circumstance has to be judged in case of such crimes to
see whether the nexus between the crime and the political
act is sufficiently close- only then the political exception
clause in the treaty can be legitimately invoked.
 Whether or not a relative offence has political consequences
will often depend on the proximity of the offence to the
political objective sought. There is no fixed rule as to what
degree of proximity is required- states discretion.
 Oppenheim: where as many writers consider a crime,
Political, if committed from a political motive other call
‘Political’ any crime committed for a political purpose;
again others recognize such a crime only as political as was
committed both from a political motive and at the same
time for political purpose; and thirdly some writers confine
the term ‘Political Crime’ to certain offences against state
only such as high treason etc. Up to present day all
attempts to formulate a satisfactory conception of the term
have failed.”
 International law leaves to the states to decide according to
their own municipal laws and practice whether, an offence
to which extradition has to be requested is Political Crime or
not
 Initially political offence constitutes only those acts which
were done to overthrow the government- but later it
included other acts.
 In Re Castioni Case 1891:
□ The applicant Castioni, a Swiss Citizen and leader of
a dissident group- being dissatisfied with its
government launched large scale attacks on
government building- in the process shot a member
of state council who was standing in the building- no
evidence of private grudge between Castioni and
the deceased- fled to UK- Swiss requested for
extradition- UK refused declaring that he is a
political offender.
 □ In another case Re-Menuier (1894), Meunier was an
anarchist who escaped to England from France- he
had perpetrated two bomb outrages one in a
crowded café and another at army barracks- court
held that- in order to constitute an offence of a
political character, there must be two or more
parties in the state, each seeking to impose the
government of their own choice on the other, and
that, if the offence is committed by one side or on
the other in pursuance of that object, it is a Political
Offence, otherwise not”- court refused to extradite.
□ But in Rex V. Kolozynski case, 1955, the British court
did not follow the restrictive definitions given in
these two judgments, but extended the definition of
Political Offences by saying- “The words, offence of
political characters’ must always be considered
according to the circumstances existing at the time
when they have to be considered. The present time
is very different from 1890 when Castioni’s case
was decided.
□ This judgment has been favourably accepted by
many scholars and accordingly, now; not only
offences committed to over throw a government,
but also attempt to suppress or prosecute persons
holding different political opinion, is considered as
Political offence.
□ Exception under Article 1F of refugee convention to
non-political offence. T v Secretary of State for the
Home Department (1996) – Algeria citizen in UK-
member of an organization that used violent means
with the objective to seize the government- killed 10
civilians in airport bombing- argued it is to damage
states economy as opposed to causing death- court
held indiscriminate killing of civilians could only be
termed as acts of terrorism- cannot come under the
purview of political crime.
 Attendance clause: aka Belgian clause
□ The rule that political offenders are not extraditable
is subject to one condition- murder of the head of
the foreign government or member of his family-
not a political crime.
□ Introduced by Belgian in Celestion Jacquin case
(1856)- celestion was a businessman of French
national and domiciled in Belgium who attempted
to murder Emperor Napolean-III in 1854 by
exploding a railway line in which the emperor was
travelling.
 □ Emperor escaped from danger- France requested for
extradition- Belgium refused due to the Acts in force
at that time.
□ To overcome such a situation in the future,
attendant clause was designed to provide that the
murder of the head of foreign state or his family
shall not be considered as political offence and
hence extraditable.
□ Later other countries also adopted this clause.

Historical development in India:

 The United Kingdom Extradition Act, 1870, as enacted by the Parliament of the UK, was
made applicable to India by virtue of India being a British possession.
 It enabled fugitive criminals from and to countries outside of British dominions.
 Later, the Fugitive Offenders Act, 1881 was brought into effect with extradition of
fugitive offenders within the commonwealth countries.
 Since India was under British control, the Acts were made applicable.
 The first legislation with regard to extradition is the Indian Extradition Act, 1903.
 To provide more convenient administration in British India, this act was enacted to
supplement the above 2 Acts.
 Laid down the procedure to be followed in the country in cases of extradition with
other countries based on the application of the above two British statutes to India.
 This act continued to be in force in India even after India became independent up till
1962.
 Today, India has 48 extradition treaty with other countries which are currently in force and
extradition arrangement with 12 other countries.
 The Extradition Act, 1962:
 consolidates and amends the law relating to extradition of fugitive criminals as well
as deals with matters incidental thereto, and has repealed the earlier laws regulating
matters related to extradition.
 The 1962 Act has retained all the basic principles of law of extradition; Rule of
Speciality (RoS); Aut dedere aut judicare (ADAJ); humanitarian safeguards;
mandatory grounds of refusal; and others
 Chapter 2: Procedure to be followed in surrendering or extraditing fugitive criminals
to countries with which India does not have any extradition treaty or Arrangement
(sec. 4-11)
 Sec. 4: request for extradition to the Central Government made through a
diplomatic representative or by the government of the foreign state.
 Sec. 5: Once the request is made, the Central Government may issue an
order to any magistrate that has jurisdiction, directing him to inquire into the
case.
 Sec. 6: On receipt of an order, the magistrate shall issue a warrant for the
arrest of the fugitive criminal.
 Sec. 7: When the fugitive criminal is brought before the Magistrate, he
would then inquire into the case in the same manner, along with the same
jurisdiction and powers, as if the case were one triable by a Sessions Court
 or High Court. (Enhances the power of magistrate). The Magistrate will
consider evidence produced by the foreign State, as well as that provided by
the fugitive criminal. If prima facie the case does not fulfil the mandate for
requisition, he shall discharge the fugitive criminal- if not, fugitive send to
prison to await orders from central government. Magistrate to submit report
and any other written statement from the fugitive.
 Sec. 8: upon receipt, if the Central Government is of opinion that the fugitive
criminal ought to be surrendered to the foreign State, it may issue a warrant
for the custody of the fugitive criminal and his delivery to a person and place
named in the warrant.
 Chapter III: Return of fugitive criminals to foreign states with extradition
arrangement/treaty
 Sec 12: applicable only to cases where there is extradition arrangement.
 Sec. 13: fugitive to be apprehended and returned.
 Sec. 14: endorsed warrant or provisional warrant.
 Sec. 15: central government to endorsed warrant issues in any foreign state,
and bring him before the magistrate.
 Sec. 16: provisional warrant: empowers magistrate to issue provisional
warrant.
 Sec. 17: magistrate- satisfied that endorsed warrant is authenticated and is
an extraditable offence- sent certificate of committal to GoI- report his
inquiry to GoI.
 Sec. 18: GoI is empowered to take concerned fugitive criminal into custody
from prison and deliver him to place and person as specified in warrant
 Chapter IV: Surrender/Return of Accused or Convicted Individual from Foreign
Country (where chapter 3 does not apply)
 Sec. 19: where there is no treaty- requisition to be made by central
government- in case of treaty states, by warrant issued by a magistrate.
 Sec. 20: delivered to proper authority.
 Sec. 21: rule of speciality.
o (a) offence for which he was extradited.
o (b) any lesser offence disclosed for the purpose of securing
extradition.
o (c) offence for which foreign state has given its consent.
 Chapter V: miscellaneous: covers a range of important issues such as establishing
jurisdiction, discharge of fugitive, bail, governments power etc)
 Sec. 22: liability of fugitive criminal to be arrested and surrendered or
returned- fugitive of foreign state- irrespective of whether the offence has
been committed before the commencement of this act or whether Indian
courts have jurisdiction to try that offence.
 Sec. 23: if offence committed outside or territorial sea or airspace, if it comes
to India port aerodrome, central government or magistrate my exercise
jurisdiction.
 Sec. 24: protection to fugitive criminal. (sec. 25,29.31)
ᴏ empowering the High Court to discharge the fugitive if detained for
two months after the committal, unless the Central Government
shows sufficient cause for such detention
  Sec. 25: the provisions of CrPC related to bail matters would be made
available to fugitive criminals in the same manner even if they are arrested
or detained under the mechanisms of this Act
 Sec. 26: abetment of extradition offences:
 Sec. 27: re-taking of escaped fugitive.
 Sec. 28: property found in fugitive criminal.
 Sec. 29: Central Government can cancel any warrant issued or endorsed on
grounds like trivial nature of the case; requests for surrender not made in
good faith or for political reasons
 Sec. 31: restriction on surrender.
ᴏ (a) protection from offences of political character.
ᴏ (b) time barred.
ᴏ (c) Rule of speciality
ᴏ (d) not until the fugitive has been discharged or acquitted after
expiration of the sentence that is being served in India.
ᴏ (e) 15 days.
 Sec. 34: Extra-territorial jurisdiction.
 The Anti-Hijacking Act, 1982
 The Suppression of Unlawful Acts Against Safety of Civil Aviation Act, 1982
 SAARC Convention (Suppression of Terrorism) Act, 1993 etc.

Indian Case law of extradition:

 Tarasov Extradition case (1963):

 Only 4 days after the new extradition Act came into force, this case came before the
Indian courts.
 Tarasov, a sailor of Russian tanker was arrested on Nov, 1962 on the charge of theft
by Mr. Londarev, Soviet vice counsel in Calcutta. (Rs. 700 on board the Russian
vessel)
 Calcutta HC ordered released on bail.
 Immediately after this, Soviet embassy in Delhi made a requisition for extradition
stating that since theft had been committed on high seas, it has to be tried by
Russian Court.
 GoI send the request to a magistrate in New Delhi for Inquiry under Sec. 5 of the
extradition Act- magistrate issued order for arrest.
 Case came before Chief presidency magistrate of Calcutta.
 Police prayed for the discharge of the accused on the ground that the alleged theft
has taken place 100 miles away from the territorial waters of India and hence
outside the jurisdiction of the court.
 Magistrate accordingly discharged the accused.
 But Tarasov was rearrested on warrant by Delhi Magistrate
 Tarasov defence was that the charges are baseless and also there is no extradition
treaty between Soviet and India.
 Court stated that “It would have to be commented that the foreign State has not
produced satisfactory evidence to show that there was any theft.... Considering that
there was no treaty between the two countries, the fugitive cannot be surrendered
to the foreign State.”
  This case established the rule that in the absence of an extradition treaty, state is
under no legal obligation to fugitive to the requesting state.
 Dharma Teja Case 1972
 Dharam Teja was the director of a shipping corporation who committed
embezzlement and fled to Ivory Coast with crores of rupees.
 GoI made a request to Ivory Coast to extradite him but it refused on the ground that
there was no extradition treaty between them.
 Later Dharma Teja went to London, GoI made a request to British government to
extradite him.
 Britain accepted the request on the ground that extradition treaty exist between the
2 states.
 Daya Singh Lahoria v. Union of India and Others (2001)
 Loharia accused of abducting the son of Rajasthan congress leader Ram Niwas
Mirdha to pressure the Narasimha Rao government to release a Terrorist named
Devendra Pal Singh Bhullar in 1992. (Member of KLF)
 He was extradited from US in 1997 for charges under provisions of IPC and Explosive
substances Act, 1908.
 After they were brought, offences under Terrorist and Disruptive Activities
(Prevention) Act, 1987 were also launched against them.
 Petitioner argued that Indian courts did not have the jurisdiction to try him for
offences that were not part of the extradition agreement.
 The SC had to examine Sec. 21 Indian Extradition Act., 1962 in consonance with the
extradition arrangement under which appellant was surrendered to India from the
US.
 The issue was whether fugitive brought to India can be tried only for the offences
mention in the extradition agreement?
 Court upheld the rule of speciality and held that court will have jurisdiction only for
the offences mentioned in the extradition agreement and not any other offence.
 Abu Salem Abdul Qayoom Ansari v. Central Bureau of Investigation and Another (2013)
 Most wanted accused for the Mumbai blast in 1993 killing 257 and injuring 713.
 The accused was charged under IPC and TADA, Arms Act, 1959, the Explosives Act,
1884, the Explosive Substances Act, 1908 and the Prevention of Damage to Public
Property Act, 1984
 The accused had absconded- entered Portugal in Sept, 2002 on a Pakistani passport-
arrested by Interpol- detained in Lisbon.
 In Dec, 2002, GoI submitted a request for extradition with the assurance that if
convicted, the accused would neither be given death penalty nor imprisonment
beyond 25 years.
 In 2003, Lisbon released the order stating that Abu Salem can be tried under some
provisions of IPC and TADA but not under the other Act.
 Indian ambassador to Lisbon gave assurance that Abu Salem will not be prosecuted
for offences other that those which are sought in the extradition neither be re-
extradited to a third country.
 In Nov 2005, accused was brough to India.
 In 2006, supplementary chargesheet was filled- Abu Salems contends that it violates
the extradition order- violation of RoS.
  Writ petition filled in SC- court held that it is not in violation of RoS because he was
charged with less serious crimes than the ones based on which extradition was
sought. (2011)
 In view of the above, the appellant moved an application before the Court of
Appeals of Lisbon stating that he is being tried in India in violation of Principle of
Speciality
 In 2011, the Court of Appeals of Lisbon held that India is in violation of the
extradition agreement and terminated the extradition order.
 Pursuant to such decision, in 2012, the appellant fled petition and representations in
Portugal and India respectively for cancellation of his extradition.
 The Supreme Court of India in its decision as given on 27 November 2013 made the
following observations on the two issues:
 that the verdict by the Constitutional Court of Portugal of possessing only
persuasive value and not of binding nature; in the absence of extradition
arrangements or treaties between nations, extradition is largely regulated by
reciprocity and comity as a matter of courtesy and goodwill between
sovereigns.
 On the second issue whether the extradition stands cancelled, the court
stated that in the absence of any specific direction given to the Union of
India by the courts of Portugal to return appellant, their decision can only
be used as a legal basis for Portugal to seek extradition if they choose to
through political or diplomatic channels. It held that the order of extradition
dated 28 March 2003 continues to be valid and effective in the eyes of law.
 Sarabjit Rick Singh v. Union of India (2007)
 Sarabjit, an Indian citizen but a resident of US accused of drug trafficking and money
laundering.
 US and India signed extradition treaty in 1999- US made a formal request to India for
the extradition.
 Pursuant to the request, he was arrested and GoI made a request to the Additional
Chief Metropolitan Magistrate, New Delhi, to make an enquiry in respect of the
alleged offences levelled against him- Magistrate ordered for extradition.
 Petitioner challenged the order stating that it was made in violation of Article 9 of
the extradition treaty which prohibits extradition if barred by time and sec. 7 of the
Extradition Act. (Procedure before the magistrate)
 Petitioner argued that requirement to take evidence under sec. 7 of Extradition Act
and Article 9 of extradition treaty dealing with procedure and required documents.
 Magistrate held that the evidence placed before the court is only to be use to arrive
at a prima facie finding either in favour of fugitive criminal or in support of the
requesting state.
 The term “evidence” is only to prepare a report for making an order of
commitment under the act and the documents submitted as evidence are not
required to be evaluated or appreciated stricto sensu
 Vijay Mallya:
 2013- consortium of 13 banks led by State Bank of India approach the court for non-
payment of loan amounting to 6493 crores.
 March 2016- fled to London.
 February 2017- India sent an extradition request to the UK. (Treaty signed in 1992)
  April 2017- arrested by London police and was later released on bail after furnishing
bail bond.
 Dec 2018: after a long extradition trial, Westminster Magistrates’ Court judge
ordered the extradition, if the secretary of state permits.
 Decision appealed to High court- HC rejected the appeal and ordered for extradition.
 However, in 2020, UK stated that there is a confidential legal issue which needs to
be addressed before extradition- simultaneously he applied for asylum.
 Nirav Modi:
 Jan 2018- Punjab National Bank filed a complaint with CBI for allegedly defrauding
11400 crores.
 Feld to UK
 Aug, 2018- India filed request for extradition
 March 2019- Westminster court issued warrant and was arrested- denied bail on the
ground that he might abscond.
 Feb 2021- after trail, court rules Modi can be extradited- appealed- denied by HC
 15th dec, 2022- application to appeal in SC denied
 According to UK extradition process- 28 days to remove him.
 March 2023- UK stated his removal is barred by a “legal matter”- believed to be
asylum determination process.