Extradition is when a person charged of a crime in one state absconds to another state, and the former state requests the latter to send him/her back for trial and punishment within its own jurisdiction. This request is usually made against someone who is a fugitive criminal. So, we can say that, in this system one state surrenders another, an individual who is an accused, criminal or is a fugitive offender.
What is Extradition and why do we need it?
Section 216 of the Indian Penal Code, 1860 defines extradition as the action of giving up a fugitive criminal to the authorities of the State in which the crime was committed.[i] It is important to bring such criminals back to the country where he/she has committed the crime because different countries have different laws made for various offences. It is also possible that what might be a serious offence in country A is not that big of an offence in country B therefore, there can be variation in the punishments of the same offence in two different countries. Also, the evidences and the witnesses can only be found in the same country where the crime was originally committed and there only can the criminal be tried and punished. So, to cut out this glitch, extradition is important. It not only solves the above stated issues but also prevents the trend of international criminals, who keep changing countries one after another after committing crimes in those countries. The Extradition Act, 1962 governs matters relating to extradition, in India. In the case of, State of West Bengal v. Jugal Kishore[ii] , the apex court defined extradition as the surrender of a person by a State to another State, who is desired to be dealt with for crimes of which he has been accused or convicted and those crimes are justiciable in the other State.
The Extradition Act, 1962:
An Act to consolidate and amend the law relating to the extradition of fugitive criminals [and to provide for matters connected therewith or incidental thereto].[iii] The Act provides with the legislative basis for extradition in the country. It consolidates and amends laws relating to extradition of fugitive criminals and also provides for matters that are connected with the same or happen to be incidental. This Act was enacted in the year 1962.
As per the Section 34 of the 1962 Act, the Extradition Act, 1962 has an extra-territorial jurisdiction which means it can exercise its authority and look into matters beyond its normal boundaries. So, if an Indian citizen commits a crime in some other country, he/she shall be held liable to be prosecuted in India for such an offence.
For this, a treaty or an agreement called, the Extradition Treaty is made with different States concerning fugitive criminals. According to the Section 3(4) of the Act, the central government is to be notified about any such treaties being entered by India with other States. Section 2(a) of the Extradition Act, 1962 defines a composite offence. According to the Section, a composite act is an act or a conduct of a person occurring wholly or partly in some other country or in India, the effect of which taken as a whole, would be an extradition offence in the respective State. In the case of Daya Singh Lahoria v. Union of India[iv], the Supreme Court of India, emphasizing on the substance of extradition law, stated that, Extradition is a great leap towards international cooperation which can help eliminate the possibilities of rise in offences at an international level. And for this reason, the Congress on Comparative Law at Hague in 1932, resolved that States should consider extradition as binding upon themselves. The countries, however, in some cases of urgency, can make a provisional arrest request.
Principle of Double Criminality
Also known as “Dual Criminality”, the principle of Double Criminality states that extradition can only be available when the act in question is an offence in both the States. For instance, a murderer has fled from India and is hiding in Bangladesh, he can be extradited only when murder is criminalized in both the countries i.e., Indian and Bangladesh. Even though, the principle of double criminality is the most uniformly applied code throughout the globe it may differ from jurisdiction to jurisdiction, quite considerably. The concept has proved to be of great importance because of its extraterritorial jurisdiction as crime cannot be restricted in geographical boundaries, nowadays.
If we look at the case of Vijay Mallya, it is a requirement of the India-UK Extradition Treaty that it has to be proved that he has committed a crime in the United Kingdom as well as in India so that he can be convicted and sent back to India for trial and punishment. The minister of State for External Affairs, MJ Akbar, on the behalf of the government said that, according to the international norms, dual criminality is an indispensable element for extradition of a fugitive criminal. In this case, therefore, the establishment of this element of dual criminality is a legal requirement as per the India-UK Extradition Treaty.[v]
In an international case of extradition, it is not necessary that the two statutes be exactly in tune as far as double criminality stands in question. Double criminality exists if the essential character of the criminal acts of each country is same and if the laws are for the most part, similar.
Firstly, a request for the surrender of the fugitive criminal is made to the Central Government by (a) a diplomatic representative of the foreign state or, (b) The government of the concerned foreign state, through its diplomatic representative, who comes into contact with the Central Government for the same or, (c) by other modes as decided, between India and the other country.
Secondly, if the Central Government thinks fit, it can send the matter for enquiry to the Magistrate, who then issues a warrant for arrest of the fugitive criminal. Upon the enquiry of the Magistrate, if a prima facie case is made, the matter can be taken further. However, if a prima facie case can not be made out, the, the Magistrate shall discharge the said criminal.
Finally, if the prima facie report made by the Magistrate is found to be satisfactory, the criminal can be surrendered to the requesting State.
Human Rights and Extradition:
Human Rights can be used as an excuse to deny extradition requests made. These rights can add to the complexity of such cases. The extradition process, undoubtedly imposes a number of restrictions on the freedoms of the individual. It is because of its repressive nature that human rights are considered during the extradition process. Human rights are considered a part of the public order in the international community, as well. Although, the States cannot just blindly deny these extradition requests, there has to be a valid reason to refuse such extradition.
Bhavesh Jayanti Lakhani v. State of Maharashtra[vi]: In this case it was held that, if the Fundamental rights of a citizen are violated, the High Court under its extraordinary powers of Article 226, will not turn the citizen in only because a red corner notice has been issued against him by the Interpol. The superior courts will look into such criminal matters to find out if the charges press against the person are genuine and the red corner notice so issued is sought to be enforced.
Extraordinary rendition and International tension:
When a country refuses the extradition request of another country, it may lead to some international tension between them, in some cases. Often the countries, whose requests have been denied accuse the other countries pf refusing extradition for political reasons. These accusations may or may not be valid. These situations become more complex when the countries involved are democratic because in these countries the decision to extradite is taken by national executives. This can ultimately lead to international differences between the countries. Even if the countries decide to extradite such people, they do it after multiple appeals and this makes the process too slow and the results are also delayed. Sometimes, the prosecution is also not willing to do so.
In the language of law, rendition means to surrender or to hand over a person or property, especially from one jurisdiction to another. It can also mean rendering or delivering a judicial decision or the execution of an order of the judiciary by the concerned parties. Extradition is the most common type of rendition as far as criminal suspects are concerned. Rendition (the act of handing over) happens after the request for extradition is made. Though, extraordinary rendition differs from extradition on legal terms.
Extraordinary rendition is also called irregular rendition or forced rendition. It is when the government-sponsors abduction and extrajudicial transfer of a person from one country to another in order to find a way out of the laws on interrogation, detention and torture of the other country.
The United Nations considers this a crime against humanity.[vii] The European Court of Human Rights, in July 2014, condemned the government of Poland for participating in CIA extraordinary rendition, ordering Poland to pay restitution to men who had been abducted, taken to a CIA black site in Poland, and tortured.[viii][ix]
Even though extradition is a concept bound by a treaty mechanism, the process is very lengthy, complex and time consuming. It mostly depends upon the domestic laws and politics of the states, which is mainly because extradition is a sovereign decision of the states. As the world is going ahead with the benefits of globalization, the challenges of international offences are also increasing briskly. India faces difficulty in securing the return of these fugitives, the country must at full tilt, introduce reforms and diplomatic leverage to create a straightforward, frictionless extradition mechanism.[x] Also, emphasizing on certain matters like, setting up of a specific cell, providing legal assistance and advice, etc. might help the states to deal with the problem of rejection of extradition requests. This might also help in protecting the rights of such people who are being extradited.
Q1. What is the central authority for Extradition in India?
Ans. Consular, Passport and Visa (CPV) Division, Ministry of External Affairs (MEA), Government of India is the central authority that administers the Extradition Act, 1962. It processes incoming and outgoing extradition requests.
Q2. What do you mean by provisional arrest request?
Ans. In case of an urgency, India may request provisional arrest of the fugitive while the extradition request is still pending. It can be useful to make sure that the fugitive criminal does not flee from the particular jurisdiction while the extradition request is still under consideration.
Q3. What is a Red Corner Notice?
Ans. A Red Corner Notice is basically an arrest warrant, which is issued by the Interpol on behalf of the government of a particular country. It is a request to another country to arrest and send back the wanted person.
Q4. Do states need the treaty to make a provisional arrest request?
Ans. The states do not need a treaty to make a provisional arrest request but also the other country is not obligated to act upon such request.
Q5. How can we establish facts in a case of extradition?
Ans. The extradition cases are mostly decided on the basis of the conduct alleged against the defendant. Reasonable grounds need to be established for which prima facie determination of determination of commission of an offence is made.
[ii] AIR 1969 SC 1171
[iv] 2001 (4) SCC 516
[vi]Bhavesh Jayanti Lakhani v. State of Maharashtra (2009) 9 SCC 551