EXTRADITION

Definition:

It is quite possible for a person to escape to another State after committing a in his own State.
Such cases have s started occurring more frequently with the result of the development of the
air traffic. A question arises as to whether fugitive shall be tried in the country where hel has
fled away ay or in the State where the crime has been committed. Normally a State finds
itself in a difficult situation to punish a person who has s committed a crime elsewhere
primarily because of the lack of jurisdiction, and therefore, such persona sometimes
surrendered to the State where the crime has been committed. Surrender of an accused or of a
convict is referred to extradition. Surrender of a person is opposite to the traditional practice
of the States to grant asylum. Thus, in those cases where the tradition of granting asylum is
not followed, it is known as extradition. Thus, the surrender of a person is against the
established and traditional practice of the States which started since the last quarter of the
eighteenth centuary.

The term extradition has derived from two Latin words ex and traditum. Ordinarily, it may
mean 'delivery of criminals, surrender of fugitives or handover of fugitives. E Extradition
may be defined as surrender of an an accused or a convicted person by the State on whose
territory he is found to the State on whose territory he is alleged to have committed, or to
have been convicted of a crime. According to Oppenheim extradition is the delivery of an
accused or a convicted individual to the State where he is accused of, or has been convicted
of, a crime, by the State on whose territory he happens for the time to be,

The above definition makes it clear that in extradition two States are involved. They are:
firstly, the territorial State, Le, a State where an accused or a convict is found, and secondly,
the requesting State, Le, a State where the crime has been committed. A State which demanda
for the surrender is known requesting State because a person is surrendered by the territorial
State only upon a request State her by another State. Request is made normally through the
lly through the diplomatic channel. The request for extradition of fa person distinguishes

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extradition from other ch as banishment, expulsion and deportation where forcibly removed.
undesirable measures person is

Purpose of Extradition:

A criminal is extradited to the requesting State because of the following reason:

1) Extradition is a process towards the suppression of crime. Normally a person cannot

be punished or prosecuted in a State where he has fled away because of lack of
jurisdiction or because of some technical rules of criminal law. Criminala are
therefore extradited so that their crimes may not go unpunished.

2) Extradition acts as a warning to the criminals that they cannot not escape punishment
by fleeing to another State. Extradition therefore has a deterrent effect

3) Criminals are surrendered as it safeguards the interest of the territorial State. If a

particular State adopts a policy of non-extradition of criminals they would like to flee
to that State only. The State, therefore, would become a place for international
criminals, which indeed would be dangerous for it, because they may again commit a
crime there, if they would be left free.

4) Extradition is based on reciprocity. A State which is requested to surrender the

criminal today may have to request for extradition of a criminal on some future date.

5) Extradition is done because it is a step towards the achievement of international co-

operation in solving international problems of a social character. Thus, it fulfills one
of the purposes of the United Nations as provided under Para 3 of Article 1 of the
Charter.

6) The State on whose territory the crime has been committed is in a better position to
try the offender because the evidence is more freely available in that State only.

7) It is to be noted that extradition of the fugitive criminals is mutually beneficial for all
the States or to say the international community as a whole. Extradition can play a
major role in eliminating crimes if it works effectively through international
cooperation.

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Law of Extradition:

In International Law, rules regarding extradition are not well established mainly because
extradition is a topic which does not come exclusively under the domain of International
Law. Law of extradition is dual law. It has operation- national as well as international.
Extradition or non-extradition of a person is determined by the municipal courts of a State,
but at the same time it is also a part of International Law because it governs the relations
between two States over the question of whether or not a given person should be handed over
by one State to another State. This question is decided by the national courts but on the basis
of international commitments as well as the rules of international law relating to the subject.

A number of attempts have been made to conclude a convention governing extradition

request among nations. In 1935, the Harvard Law School prepared a draft Convention on the
subject. The International Law Association has also considered legal problems relating to
extradition in the Conference held at Warsaw. In 1928 the Draft Convention on extradition
was approved but nothing has materialised in concluding a universal convention on
extradition. International Law Commission has also not yet taken this topic for its
consideration for codification despite the inclusion of the topic of extradition in 1949, in its
provisional list of fourteen topics for its codification. It is desirable if a multilateral
convention is concluded so that general rules of International Law may be settled regarding
extradition.

Attempts have also been made by the States to conclude regional conventions on the subject.
The Pan American Conference of 1902 produced a treaty signed by twelve States but it was
not ratified. The Asian-African Legal Consultative Body also prepared a draft Convention on
extradition at its meeting in Colombo in 1960. In September, 1965, the Commonwealth
Conference of Law Ministers and Chief Justices expressed the desire for a Commonwealth
Convention on Extradition. Some States, no doubt, are parties to schemes of extradition
between a group of States having geographical affinity. For instance, the European
Convention on Extradition was signed on December 13, 1957 by the member States of the
Council of Europe, and the Arab League Extradition Agreement was approved by the Council

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of the League of Arab States on September 14, 1952, Such regional conventions contribute to
the trend of creating general rules of extradition.

Presently, in the absence of any multilateral treaty or convention, extradition is done by States
on the basis of bilateral treaties wherein provisions are made in accordance with the
municipal law by which they have agreed between themselves to surrender the accused or
convict to the requesting State in case such a person comes under the purview of a given
treaty. Bilateral treaties at international level are supplemented by national laws or legislation
at the municipal level. Thus, many States have national legislations. They have made rules
regarding extradition of a fugitive criminals. For instance, in India, rules regarding
extradition have been made in the Extradition Act of 1962 and the Extradition (Amendment)
Act, 1993. Extradition is done by India only when the conditions laid down in the Act are
satisfied. Similarly, other States also have extradition laws.

Bilateral treaties, national laws of several States, and the judicial decisions of municipal
courts led to develop certain principles regarding extradition which are deemed as general
rules of International Law. Important amongst them are as follows:

(1) Extradition Treaties:

The first and the foremost important condition of extradition is the existence of an extradition
treaty between the territorial State and the requesting State. Some States, such as the United
States, Belgium and the Netherlands, require a treaty as an absolute pre-condition. The strict
requirement of an extradition treaty may be regarded as the most obvious obstacle icle to
international co-operation in the suppression of crimes. Since extradition treaties are
politically sensitive and require careful and lengthy negotiations, States have few extradition
treaties and the criminal can usually find a safe haven-that is a State which requires a treaty
for extradition and has no such treaty with the State within whose jurisdiction the crime was
committed. It is, therefore, desirable that States conclude extradition treaties with as many
States as possible to suppress the crime.

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In order to provide assistance to States interested in negotiating and concluding bilateral
extradition agreements, the General Assembly on December 14. 1990 adopted a Model Treaty
on Extradition by adopting a resolution.

The resolution invited member States to take into account the Model Treaty on Extradition at
the time of concluding extradition treaties or when they wish to revise the existing extradition
treaty relations.¹

A person may be extradited in exceptional cases in the absence of a treaty on the basis of
reciprocity, or to say, reciprocal arrangements between States which may contain assurance
that the requesting State will act in good faith and the fugitive will receive a fair trial in the
courts of the requesting State. Although such assurances may themselves be in such terms as
to constitute an international agreement, they do not amount to a formal treaty. Such
reciprocal arrangements is based on the concept of reciprocity and comity. Procedure of
extradition based on reciprocal arrangement is sometimes referred to rendition.

Germany and Switzerland extradite a person apart from a formal treaty tions of if their
governments and the requesting State nave exchanged declarations of reciprocity. India does
not have any extradition treaty with Portugal. However, when Abu Salem, an accused in 1993
Mumbai blast and an underworld don fled to Portugal along with his wife Monica Bedi,
Portugal, in the absence of a treaty, extradited Abu Salem to India after latter gave an
assurance that he would not be given death sentence. Later, High Court of Portugal passed an
order on July 14, 2004 along with reasons for his extradition to India. Abu Salem was
extradited in 2006 on the condition that he will not be given death sentence. His wife has also
been ordered to be extradited to India.

When an offender is returned to another State in the absence of an extradition treaty or any
reciprocal arrangement, normally the act is called deportation. In practice, a person is
deported to the State from which he has arrived in the deporting State. If such a State refuses
to accept, a person is deported to the State of his nationality. The home State of such a person
has the duty to receive them, since a state cannot refuse to receive such of its subjects as one
deported from abroad. If departed person expresses to go to a certain State, which is willing

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to road. If there should in principle be no reason for the deporting State not 18 to receive go
there. A person is deported on the basis of reciprocity. To deport allow him specified State has
much the same effect as deporting him to a State from where he has arrived.

(2) Extradition of Political Offenders:

It is a customary rule of International Law that political offenders are not extradited. d. In
other words, they are granted asylum by the territorial State. During the days of monarchs,
extradition of political offenders was very common. They used to prefer extradition so as to
avoid intervention in the affairs of another State. But the practice underwent a complete
change with the beginning of the French Revolution. Perhaps, for the first time, the French
Constitution of 1793 under Article 120 made a provision for granting asylum to those
foreigners who exiled from their home country for the cause of liberty. Later on, other States
followed the principle of non-extradition of the political offenders gradually. Indian
Extradition Act of 1962 also lays down a similar provision under Section 31(a). At present,
non- etradition of the political offenders has become a general rule of International Law and
therefore it is one of the exceptions of extradition.

Basis for the non-extradition of the Political offenders:

The rule of non-extradition of the political offenders is based on many considerations which
are as follows:-

(1) The rule is based on the elementary consideration of humanity. No State would like to
extradite a person if he is not a criminal. If it does, it will not be in compliance with
the law of natural justice.

(2) If political offenders are extradited, it is feared that they would not be treated fairly. It
is a duty of the territorial State to ensure safeguards to the surrendered fugitives for a
fair trial in the requesting State. Since it is a difficult task is a difficult task, they are
not extradited.

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 (3) The rule also protects the political offender from any measure of extra- legal character
which the requesting State might attempt to take against them.

(4) The object of the political offenders to take shelter in another country is not the same
as those of the ordinary criminals.

(5) Political offenders are not dangerous for the territorial State as may be in the case of
ordinary criminals.

Exceptions to the Political Offence Exception:

On some occasions,fugitive take undue advantage of the principle of non-extradition of

political offenders by posing themselves as political offenders. In order to check the abuse, an
attempt was made to restrict the principle in certain cases. In 1856, Belgium introduced the
attempt claus in its extradition law. Article VI of the Act provides that an attempt on the life
of the head of a foreign government or of members of his family shall not be considered to be
a political offence, or an act committed with such an offence, when it in fact constitutes
murder, assassination or poisoning. Some other European States followed this practice, but
the attentat clause has not been accepted as a general rule of International Law because
sometimes the Head of the State may be titular head. He may not be the most important and
powerful man in a State. For instance, the Queen of England or the President of India may
not be as powerful as the Prime Minister.

At present, the political offence exception is no longer accepted in a number of serious

crimes which are as follows:

1. It is expressly excluded by some multilateral treaties notably the Genocide

Convention of 1948 and the Convention on Aparthied of 1973. The Genocide
Convention provides under Article VII that genocide, conspiracy to commit genocide,
direct and indirect public incitement to commit genocide, attempt to commit genocide
and complicity in genocide shall not be considered political crimes.
2. Political offence is not recognised as an exception to extradition in the case of
customary International Law crimes such as war crimes and crimes against humanity.

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 3. Multilateral treaties relating to hijacking, torture or hostage taking, injury to diplomats
and grave breaches s of the Geneva Conventions on the laws of war and armed
conflict have seriously undermined the exception by requiring States either to
prosecute or extradite despite the fact that they will normally be politically motivated.
4. States have excluded the political offence exception in the case of some stage purely
localized criminal offences by means of bilateral or multilateral treaties.
5. It has been held not to protect former government officials guilty of human rights
abuses.

Extradition Law in India :

In India for the first time an Extradition Act was enacted in 1902. Prior to the enactment of
the Act of 19624 extradition in India was regulated on the basis of the United Kingdom
Extradition Act of 1870. The Act of 1870 was a law for whole of the British Empire. The
surrender of fugitive criminals amongst the countries of British Empire was regulated by
another Act, i.e., the Fugitive Offenders Act of 1881. Thus, extradition to and from countries
of British Empire was treated on different footings to that of extradition from other countries.
The Indian Extradition Act of 19035 was enacted to provide for more convenient
administration in British India and to supplement the Extradition Act of 1870 (as modified
from time to time) and to the Fugitive Offenders Act of 1881. Thus, the Act of 1903 was
supplementary to the above two Acts. The Act of 1903 continued to be in force after India
became independent.

The expression 'extradition treaty has been defined under Section 2(d) of the Indian
Extradition Act of 1962 to mean, a treaty (agreement or arrangement) made by India with a
foreign State relating to the extradition of fugitive criminals and includes any treaty relating
to the extradition of fugitive criminal made before the 15th day of August 1947, which
extends to, and is binding on India. Thus, all those extradition treaties which were concluded
by the (British) India before 1947 were also continued by India. It considered itself to be
bound by all the extradition treaties of (British) India.

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In 1956, India prepared a list of 45 pre-independence extradition treaties which were stated to
be in force. A question arises whether other contracting States have also considered
themselves to remain bound by such treaties. On inquiry, it was revealed that only few
countries considered themselves to be bound by pre-independent extradition treaties. Attitude
of many other countries is not clear since they did not give replies to the query. While
Germany and Portugal expressed the view that extradition treaties are not operative with
India, it was regarded by India that the pre-independence extradition are still operative. When
Abu Salem, an accused in Bombay blasts, fled to Portugal in 2002, it was found that India
does not have an extradition treaty with Portugal. Existence of pre-independence extradition
treaty was not pressed by India. The same is the case with France. When it was suspected that
Dharam Teja had fled to France, the Prime Minister of India declared in the Parliament on
August 24, 1966, that India has no extradition treaty with France, and therefore, his
extradition cannot be requested to that country. But the list of countries, with whom India has
extradition treaties, includes France as one of the treaty State. Similarly, when Quattrocchi,
an Italian businessman and an accused in Bofors Scam fled to Argentina, Parliamentary
Affairs Minister stated in the Parliament that India did not have an extradition treaty with
Argentina. But, the leader of the opposition L.K. Advani stated that the Treaty signed in 1899
by the (British) India with Argentina was still in force as it has been mentioned in the list of
pre-independence treaties. It appears that India itself is not quite sure as to which pre-
independence treaties are operative. Presently, India has extradition treaties with 47 countries
and extradition arrangements (understanding on a case to case basis) with 9 countries. List of
extradition treaties includes a few pre-independence treaties. Between 2002 to December 7,
2016, sixty two fugitives have been extradited by foreign countries to India on the basis of
extradition treaties. Crimes for which they have been extradited includes murder, kidnapping,
fraud, cheating and terrorism. India has also extradited 49 persons to other States. Indian
citizens constituted the bulk of these offenders.

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