Extradition can be considered a co-operative law enforcement process between two countries that is formalised and regulated by a treaty; this enables one government to hand over an accused or a convict to the country where they are charged or convicted, ensuring that offenders do not evade justice by simply crossing borders. India is no stranger to extradition, with ample headlines capturing its attempts to extradite certain economic offenders who have fled to the UK in the recent past.

The Ministry of External Affairs is the Central Authority that governs the extradition of fugitives and Mutual Legal Assistance Treaty related requests in India. A request for extradition can be made by a Law Enforcement Agency or a Court may also, in appropriate complaint cases, send an extradition request submitted by the agencies. The sum and substance of this is covered under India's 'The Extradition Act, 1962' (the Act).

This blog seeks to provide a basic understanding of the legalities and commonalities of India's extradition framework to and from different countries.

The Extradition Act, 1962

The Act governs the law relating to the extradition of 'fugitive criminals' along with the governance of the extradition process in India.

Who is a fugitive criminal?

Section 2 (f) defines it as, 'A person who is accused or convicted of an extradition offence within the jurisdiction of a foreign State and includes a person who, while in India, conspires, attempts to commit or incites or participates as an accomplice in the commission of an extradition offence in a foreign State.'

This definition states that the type of offence committed by this fugitive criminal is an "extradition offence".

What is an extradition offence?

Section 2 (c) of the Act states that an 'extradition offence' in relation to a foreign state is an offence as provided under the extradition treaty with that State. However, if there is an offence with a non-treaty state, it would be an extradition offence if the offence is punishable with imprisonment of not be less than one year under the laws of India or of a foreign State, and includes a composite offence.

What is a composite offence?

Further, a composite offence is defined under Section 2 (a) of the Act as "an act or conduct of a person occurred, wholly or in part, in a foreign State or in India but its effects or intended effects, taken as a whole, would constitute an extradition offence in India or in a foreign State, as the case may be".

However, it is important to note that an extradition offence committed by any person in a foreign State is deemed to have been committed in India and would make the person liable to be prosecuted in India for the offence1.

Now with a fundamental understanding on extradition, we move on to understanding the procedure involved in extraditing a criminal from India by a foreign state and vice versa.

I. Procedure for extradition under Chapter II of the Act from India by a foreign state without Extradition Arrangement:

  1. It begins with a request for extradition to the Central Government made through a diplomatic representative or by the government of the foreign state.
  2. Once the request is made, the Central Government might issue an order to any magistrate that has jurisdiction, directing him to inquire into the case.
  3. On receipt of an order, the magistrate would then issue a warrant for the arrest of the fugitive criminal.
  4. 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. The Magistrate will consider evidence produced by the foreign State, as well as that provided by the fugitive criminal. This could also include any evidence to show that the offence alleged is of political character, or is not an extradition offence.
  5. If the Magistrate is of the opinion that a prima facie case is not made out in support of the requisition of the foreign State, he can discharge the fugitive criminal. But, if there is a prima facie case, the Magistrate may commit the fugitive criminal to prison to await the orders of the Central Government.
  6. The Magistrate should report the result of his inquiry to the Central Government, along with any written statement, which the fugitive criminal desired to submit for its consideration.
  7. 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.

II. India's treatment of extradition requests under a treaty, and provisional arrest requests to a foreign state

An extradition request is usually made only after a chargesheet has been filed and the court has taken cognisance of the case. The Central Board of Investigation in India provides a set of comprehensive guidelines for investigation and letters rogatory, as issued by the Ministry of External Affairs.

If the accused in a foreign state is to be arrested and produced in the court in India, the requisite action to bring such accused to India is through the Extradition Process.2

When should a Provisional Arrest Request be sent?3

In urgent cases, when it is believed that a fugitive criminal located in a particular jurisdiction may flee that jurisdiction, request for provisional arrest of the fugitive may be made pending presentation of the formal extradition request. The provisional arrest request should be sent to the Ministry of External Affairs.

A request for the surrender of an accused or a convict who is in a foreign state is made by the Central Government, or through a warrant issued by the Magistrate. Broadly, the following documents are required to be included in a provisional arrest request to be sent to a foreign country:4

  • A brief statement of the facts of the case, including, if possible, the time and location of the offence.
  • A statement justifying why the request is urgent.
  • A copy of the legal provision(s) setting out the offence(s) and the penalty for the offence(s).
  • Authenticated copy of a warrant of arrest or a finding of guilt or judgment of conviction against the person sought.
  • Physical description of the person, including his nationality, photograph and fingerprints, if available.
  • The location of the person sought.
  • A statement that if the person is provisionally arrested, India will seek extradition within the stipulated period.
  • The person accused or convicted should be brought into India and delivered to the proper authority to be dealt with according to law.

Where extradition takes place without following the procedure laid down under the Extradition Act of 1962, the extradition may be declined.

III. India's Extradition Treaties & Basic Commonalities

Since India has a legislature to govern extradition as well as treaties, it is essential to know the significance of the role played by both. The Act governs extradition, while each extradition treaty that India has with other countries irons out the relationship specific to the contracting country. Currently, India has signed extradition treaties with forty-three foreign countries5. Among some of the treaties (Canada, USA, UAE, France, Malawi & Australia), a few commonalities include the clauses relating to:

  1. The Duty to Extradite: This clause across these treaties reads as, "Each Contracting State undertakes to extradite to the other, subject to the conditions specified in this Treaty, any person who, being accused or convicted of an extraditable offence as described herein, committed within the territory of one State, is found within the territory of the other State, whether such offence was committed before or after the entry into force of this Treaty."
  2. Extraditable Offences: This clause across these treaties reads as, "An extraditable offence, for the purposes of this Treaty, is constituted by conduct which, under the laws of both the Contracting States is punishable by a term of imprisonment for a period of at least one year."
  3. Political Offences­: This clause states that, "Extradition may be refused if the offence for which it is requested is an offence of a political character." It goes on to elaborate offences which do not constitute a political offence, "For the purpose of this Treaty, the following offences shall not be regarded as offences of a political character..."
  4. Grounds for Refusal of Extradition: This clause exists in most treaties, but the grounds for refusal vary from country to country. For example: Provision on the lapse of time is a ground for refusal. However, denial on the ground of having a final judgment delivered in the requested party's State is one found in France, Australia and Canada.
  5. Mutual Assistance or Reciprocal Benefits: This clause reads commonly as, "Each Contracting State shall, to the extent permitted by its law, afford the other the widest measure of mutual assistance in criminal matters in connection with the offence for which extradition has been requested."
  6. Provisional Arrest: This clause reads in most treaties as, "In urgent cases, a person sought to be extradited may, in accordance with the law of the Requested State, be provisionally arrested on the application of the competent authorities of the Requested State. INTERPOL Channel may also be used in forwarding the provisional arrest request."
  7. Rule of Specialty­: This clause reads in most treaties as, "Person who has been extradited shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited, nor shall he be for any other reason restricted in his personal freedom.". However, this is subject to certain exceptions as laid down in the provision.

IV. Extradition Treaty Between India & UK

Since extradition with the UK has been popularly appearing in the news over the past few years, we look at some of the clauses in the treaty between India and the UK:

  1. Article 1 states that it is duty of India and the UK to extradite any person being accused or convicted of an extradition offence committed within the territory of one State either before or after the entry into force of this Treaty.
  2. Both contracting State parties have access to mutual assistance in such cases.
  3. Under Article 2, the definition of an 'extradition offence' is defined as that offence which is punishable under the laws of both the contracting States by a term of imprisonment for a period of at least one year. It excludes offences of political character; however, it includes offences related to fiscal, taxation or revenue related offences.
  4. A request for extradition could be refused if the person is being tried for the extradition offence in the courts of the requested State.
  5. In addition, it can also be refused if the prosecution in the requested State is unjust, oppressive, prejudiced, or discriminatory.

In conclusion, a treaty of extradition upholds the principles of justice by either brining the offenders to trial, or subjecting them to the punishment of law. With cross-border mobility becoming easier than ever, many offenders find it convenient to flee the country overnight to escape attempts at prosecution, making extradition a very important aspect of law and justice. Extradition can be understood as a vital tool in upholding the principles of justice and equity. The Indian legislation on extradition, as well as its treaties with different countries, clearly reflect these ideals. Our legal extradition framework is the bedrock of India's fight for criminal prosecution of those offenders who attempt to flee the clutches of law.

Footnotes

1. Section 34 of the Act

2.  Investigation Abroad and Letters Rogatory (cbi.gov.in)

3. Extradition (mea.gov.in)

4. Ibid.

5. The following are currently in force with Afghanistan, Australia, Azerbaijan, Bahrain, Bangladesh, Belarus, Belgium, Bhutan, Brazil, Bulgaria, Canada, Chile, Egypt, France, Germany, Hong Kong, Indonesia, Iran, Israel, Kuwait, Lithuania, Malaysia, Malawi, Mauritius, Mexico, Mongolia, Nepal, Netherlands, Oman, Philippines, Poland, Portugal, Russia, Saudi Arabia, South Africa, South Korea, Spain, Switzerland, Tajikistan, Thailand, Tunisia, Turkey, UAE, UK, Ukraine, USA, Uzbekistan and Vietnam. Along with this, India has Extradition Arrangements with the following Countries Antigua & Barbuda, Armenia, Croatia, Fiji, Italy, Papua New Guinea, Peru, Singapore, Sri Lanka, Sweden, Tanzania, New Zealand.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.