EXTRADITION

Varnit Vashistha
B.A.LLB
VI Semester (Section B)
Roll no. – 08914703818

Generally, a State's criminal jurisdiction extends over offences committed within its
geographical boundaries but it is the common experience of all the countries that often a
criminal committing an offence in one country flees to another country to escape detection
and thus seeks to avoid conviction and the consequential punishment. Chances of such an
escape are high where States have a common land frontier, e.g., as in case of India and
Pakistan.This poses a threat in all civilized countries to a fair adjudication of crime and
sustaining the Constitutional norms of Rule of law. This is clearly an affront to authority of
the territorial State besides compromising its maintenance of law and order. The State of
refuge may not be interested in prosecuting the offender, partly because no violation of its
law is involved, and partly due to lack of evidence in its possession.

It was because of these reasons that the expedient of extradition was devised by States so that
no serious crime goes unpunished. To remedy such anomalous and unjust situation,
Extradition has been evolved by way of international treaty obligation which ensures a mode
of formal surrender an accused by the one country to another based on reciprocal
arrangements, Extradition, thus, consists in a request, generally through diplomatic
channels,by the territorial State on whose territory the crime was committed, to surrender
back the fugitive so that he may be tried and punished.

MEANING AND CONCEPT

Extradition is an act where one jurisdiction delivers a person accused or convicted of

committing a crime in another jurisdiction, over to their law enforcement. It is a cooperative
law enforcement process between the two jurisdictions and depends on the arrangements
made between them. Besides the legal aspects of the process, extradition also involves the
physical transfer of custody of the person being extradited to the legal authority of the
requesting jurisdiction.1
Through the extradition process, one sovereign jurisdiction typically makes a formal request
to another sovereign jurisdiction ("the requested state"). If the fugitive is found within the
territory of the requested state, then the requested state may arrest the fugitive and subject
him or her to its extradition process.The extradition procedures to which the fugitive will be
subjected are dependent on the law and practice of the requested state.

1 Sadoff, David A. (2016-12-24). Bringing International Fugitives to Justice: Extradition and its Alternatives. Cambridge University Press.
Between countries, extradition is normally regulated by treaties. Where extradition is
compelled by laws, such as among sub-national jurisdictions, the concept may be known
more generally as rendition. It is an ancient mechanism, dating back to at least the 13th
century BC, when an Egyptian pharaoh, Ramesses II, negotiated an extradition treaty with a
Hittite king, Hattusili III.

Extradition and Deportation :Extradition usually happens when someone commits a crime
and is taken from one location to another for jurisdictional purposes, but the situation
involving deportation usually happens because an illegal immigrant is in a country without
naturalization or citizenship. The differences between these two actions are important to
understand for both individuals.
When someone is in a country illegally, has an expired visa or enters the country without the
proper channels or documentation, he or she could face deportation eventually. The foreign
national may even commit a crime and face and arrest first before the immigration offices file
the appropriate paperwork to deport the person. However, many illegal immigrants in the
2010s face the immigration authorities in the courts. There are lawyers, judges and a process
that is often unfair and quick to remove a person from the United States. Other countries
usually acquire these foreign nationals even if there are severe factors that can lead to the
individual’s death.2

Extradition and Rendition: Rendition signifies surrender of an offender to the requesting

State under ad hoc arrangements e.g. on the basis of listed as extraditable under a treaty.
Deportation or refusal of asylum may be reciprocity, or in absence of an extradition treaty, or
where offence is not we have the effect of rendition, although not so in the strict sense.

Customary Law Basis

From the earliest times extradition has come to be governed either by individual municipal
legal systems or by conclusion of bilateral treaties. Whatever rules of customary international
law in existence today on the subjects are deductions from the practice of States on
extradition. Although under present International law extradition mostly depends on treaties
among the States, the courts have also established certain principles and rules in regard to law
of extradition. Following are some restrictions on surrender of fugitive criminals or essential
conditions for extradition:

(1) Non-extradition of Political Criminal: Under customary international law, political

offenders are not extradited and this rule is based on considerations of humanity. However,
the extradition of political offenders has always remained controversial because of the
difficulty in defining a "political offence". Oppenheim says that "many writers consider a
crime 'political' if committed from a political motive, others call 'political' any crime

2 https://www.hg.org/legal-articles
committed for a political purpose; again others recognise such a crime only as 'political' as
was committed both from a political motive and at the same time for a political purpose;
some writers confine the term to certain offences against the State only such as high treason,
lese majeste and the like".Whether or not the offence is political, is entirely a matter for the
courts of the requested State to decide. In the absence of precedents, the courts are bound to
draw upon the approach taken by other States in the matter.

(2) Extradition is not allowed for military criminals also.

(3) Similarly, for religious crimes also persons are not extradited.

(4) The Rule of Speciality: An accused is extradited for a particular crime, and the country
which gets back the criminal is entitled to prosecute that person only for the crime for which
he was extradited. This is known as the rule of soeciality. In U.S. v. Ruscher, America got
Rauscher extradited from Britain on the ground that he had fled to Britain after murdering a
fellow servant in an American ship. In America, Rauscher was tried not for murder but for
causing grievous hurt to a man named Janssen. The US Supreme Court held that when a
person is brought under the jurisdiction of the Court under the extradition treaty, he may be
tried only for such offence which his extradition was sought. The same law prevails in India

(5) Double criminality: The crime for which extradition is claimed should be a crime in both
the countries (the country claiming the extradition and the country extraditing). This is called
the rule of Double criminality.

(6) There should be sufficient evidence for crimes relating to extradition Government i.e.
crime should be such that it should appear to be a crime prima facie.

(7) For extradition it is also necessary that certain other prescribed formalities should be
fulfilled.

EXTRADITION TREATIES OR AGREEMENTS

The consensus in international law is that a state does not have any obligation to surrender an
alleged criminal to a foreign state, because one principle of sovereignty is that every state has
legal authority over the people within its borders. Such absence of international obligation,
and the desire for the right to demand such criminals from other countries, have caused a web
of extradition treaties or agreements to evolve. When no applicable extradition agreement is
in place, a sovereign may still request the expulsion or lawful return of an individual pursuant
to the requested state's domestic law. This can be accomplished through the immigration laws
of the requested state or other facets of the requested state's domestic law. Similarly, the
codes of penal procedure in many countries contain provisions allowing for extradition to
take place in the absence of an extradition agreement. Sovereigns may, therefore, still request
the expulsion or lawful return of a fugitive from the territory of a requested state in the
absence of an extradition treaty.
No country in the world has an extradition treaty with all other countries; for example, the
United States lacks extradition treaties with China, the Russian Federation, Namibia, the
United Arab Emirates, North Korea, Bahrain, and many other countries.3

EXTRADITION AND HUMAN RIGHTS

A key tool for fighting crime, international extradition raises human rights concerns: The
wanted person might suffer rights violations in the country to which he or she is extradited.
How do countries balance the need to bring offenders to justice with the need to respect their
rights? Conventional wisdom suggests that human rights concerns receive growing emphasis
in extradition treaties, legislation, and case law. This article, however, shows that the
commitment to human rights in extradition is quite shaky, even among countries that are
strongly committed to human rights. This finding results from an analysis of the Australian
and Canadian debates over the signing of extradition treaties with China. In Australia,
government lawyers and the foreign ministry did not consider China’s human rights record as
an obstacle to extradition. In Canada, the government argued that extradition to China was
consistent with human rights standards. In both countries, the interest in strengthening
relations with China outweighed the commitment to human rights. Overall, this article
advances our understanding of the status of human rights in criminal justice policy; it also
contributes to the analysis of human rights engagement with China.

PRINCIPLE OF NON ENQUIRY

The law of international extradition in the United States rests on a series of myths that have
hardened into doctrine. Perhaps the most significant is the frequent claim that by its nature,
extradition is “an executive function, rather than a judicial one.” This claim, in turn, supports
additional rules, such as the “rule of non-inquiry,” under which courts hearing extradition
cases may not inquire into the procedures or treatment, including possible physical abuse,
that await the extraditee in the requesting state. In its 2008 decision in Munaf v. Geren, for
example, the Supreme Court applied this rule to the transfer of two U.S. citizens from U.S.
military custody to Iraqi custody for trial in Iraqi courts. In response to their claim that they
were likely to be tortured in Iraqi custody, the Court stated that “it is for the political
branches, not the judiciary, to assess practices in foreign countries and to determine national
policy in light of those assessments.” This article uses the rule of non-inquiry to assess the
current state of extradition law and the theories that support it. I focus first on the doctrinal
status of the rule, with the goal of demonstrating that it is more flexible than courts often
purport to believe and that a more explicitly functional approach would better serve the issues
that the non-inquiry doctrine encompasses and implicates. 4

EXTRADITION LAW: INDIAN PERSPECTIVE

3 Extradition Treaties Interpretation Act of 1998 from the United States Department of State, Extradition Treaties
4 https://www.researchgate.net/
Introduction:
International extradition is the surrender by one nation to another, for trial and punishment, of
a person accused or convicted of an offence within the jurisdiction of the latter.5 A request for
extradition is generally initiated against a fugitive criminal, who is formally accused of, or is
charged with, or is convicted of an extradition sentence.
Extradition is a system consisting of several processes whereby one sovereign, surrenders to
another sovereign, an individual sought after as an accused, criminal or fugitive offender.
This delivery of individuals to the requesting sovereign is based on treaties and/or bilateral
arrangements; however, sometimes this delivery of individuals occurs by reciprocity and
comity as a matter of courtesy and goodwill between the sovereigns. World public order is
the recurring theme based on which extradition is practiced by the States.6But it is always
gainful to remember the observations made in the case of: U.S. v. Rauscher7. Apart from
them (treaties)… there was no well defined obligation on one country to deliver up such
fugitives to another… and it has never been recognised as among those obligations of one
government towards another which rest upon established principles of international law.

In Oppenheim’s International Law, the expression extradition has been defined as follows:
―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.According to Black’s Law Dictionary8, 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.‖ Thus, in nutshell, extradition
may be defined as: the act of sending, by authority of law, a person accused of a crime to a
foreign jurisdiction where the crime was committed, in order that he may be tried there.

J.G. Starke in his work of acclaim, Introduction to International Law (10th Edition) defined
the term extradition‘ as follows: ―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.” Thus, extradition is founded on the broad
5 See: P. Ramanatha Aiyar‟s Concise Law Dictionary, Lexis Nexis, Fifth Edition, p.476
6 See: Abu Salem Abdul Qayyum Ansari v. CBI & Another, (2013) 7 SCR 1061
7 119 U.S. 407 (at p.411 - 412)
8 See: Black‘s Law Dictionary, Centennial Edition (1891-1991), Sixth Edition, p. 585
principle albeit that, it is in the interest of civilised communities that criminals should not go
unpunished and on that account it is recognised as a part of the comity of nations that one
State should ordinarily afford to another State assistance towards bringing offenders to
justice. The Supreme Court of India, in the case of, State of West Bengal v. Jugal Kishore9,
defined extradition as the surrender by one State to another of a person desired to be dealt
with for crimes of which he has been accused or convicted and which are justiciable in the
courts of the other State.
Law relating to extradition in India is governed by: the Extradition Act, 196210 and the
Extradition Treaties obtained between India and other countries. By virtue of Section 34 of
the 1962 Act, the Extradition Act of 1962 has extra-territorial jurisdiction, that is, an
extradition offence committed by any person in a Foreign State shall be deemed to have been
committed in India and such person shall be liable to be prosecuted in India for such offence.
As per Section 216 of the Indian Penal Code, 1860 read with the Constitution of India, 1950
(Schedule VII, List I, Item 18), extradition may be defined as, the action of giving up a
fugitive criminal to the authorities of the State in which the crime was committed.

Extradition treaty means, a treaty, agreement or arrangement with a Foreign State relating to
the extradition of fugitive criminals. Treaty State means, a Foreign State with which an
extradition treaty is in operation.11Section 3(4) of the 1962 Act categorically states that,
where there is no extradition treaty made by India with any Foreign State, the Central
Government may, by notified order, treat any Convention to which India and a Foreign
State are parties, as an extradition treaty made by India with that Foreign State providing for
extradition in respect of the offences specified in that Convention. As per Section 2(f) of the
Extradition Act, 1962, only fugitive criminals' may be extradited. Fugitive criminal, as per
the extradition law prevailing in India means: a person who is accused (or is convicted) of an
extradition offence committed within the jurisdiction of a Foreign State, and a person who
while in India, conspires, attempts to commit, incites or participates as an accomplice in the
commission of an extradition offence in a Foreign State. As per Section 2(c) of the
Extradition Act, 1962, an extradition offence means, an offence provided in the extradition
treaty with Foreign States; an offence punishable with imprisonment for a term which shall
not be less than one-year under the laws prevailing in India or of a Foreign State.
Section 2(a) of the 1962 Act defines a composite offence as, an act or conduct of a person

9 AIR 1969 SC 1171

10 The Preamble of the 1962 Act describes it as follows: ―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.‖

11 See: Section 2(j) of the 1962 Act

occurring wholly or in part in a Foreign State or in India, effect of which (or intended effect
which) taken as a whole would constitute an extradition offence in India or in a Foreign State,
as the case may be.
In the case of Daya Singh Lahoria v. Union of India12, Supreme Court of India, expatiating
over the importance of extradition law, stated the following, in authoritative terms:
―Extradition is a great step towards international cooperation in the suppression of crime. It
is for this reason that the Congress of Comparative Law at Hague in 1932, resolved that
States should treat extradition as an obligation resulting from the international solidarity in
the fight against crime.

IMPORTANT CASE LAWS

The State of Madras v. C.G. Menon, AIR 1954 SC 517: In this case it was held that,
the scheme of the Fugitive Offenders Act, 1881, classifies fugitive offenders in
different categories and then prescribes a procedure for dealing with each class. A
comparison between the provisions of Part I (Return of Fugitives) and Part II (Inter-
Colonial Backing of Warrants, and Offences) of the 1881 Act makes it clear that with
regard to offences relating to which Part I has application, a fugitive when
apprehended could not be committed to prison and surrendered unless the magistrate
was satisfied that on the evidence produced before him there was a strong probable
case against him, while with regards to a fugitive governed by Part II of the Act it
was not necessary to arrive at such a finding before surrendering him. There was thus
a substantial and material difference in procedure of surrendering fugitive offenders
prescribed by the two parts of the 1881 Act.
Regarding persons committing offences in the United Kingdom and British
Dominions and foreign countries in which the Crown exercised foreign jurisdiction,

the procedure prescribed by Part I of the Act was to be followed before surrendering
them and unless a prima facie case was established against them they could not be
extradited. Extradition with foreign States is, except in exceptional cases, governed
by treaties or arrangement made inter-se. Extradition of offenders between the United
Kingdom and the Native States in India is governed by the Indian Extradition Act.
Under the provisions of the Act no person apprehended could be surrendered unless a
prima facie case was made out against him. After the achievement of independence
and coming into force of the Constitution of India, 1950, India became a Sovereign-

12 2001 (4) SCC 516

Democratic-Republic, and is no more a British Possession within the meaning of
Section 12 of the Fugitive Offenders Act, 1881. India became a foreign country, post
independence, so far as other British Possessions were concerned and the extradition
of persons taking asylum in India, having committed offences in British Possessions
could now only be dealt with by an arrangement ensuing between the Republic of
India and the British Government, and given effect to by an appropriate legislation.
The Indian Extradition Act, 1903 was adapted under the provisions of Article 372 of
the Constitution of India, 1950. The 1903 Act did not keep alive any of the
provisions of the Fugitive Offenders Act, 1881, which was an Act of British
Parliament and which was not adopted post independence, and therefore, Section 12
and Section 14 of the Fugitive Offenders Act, 1881 does not apply to India.

Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta and Ors.,

AIR 1955 SC 367: It was held that in India the Foreigners Act, 1946 confers the
power to expel foreigners from India. It vests the Central Government with absolute
and unfettered discretion and, as there is no provision fettering this discretion in the
Constitution of India, 1950, an unrestricted right to expel remains. The law of
extradition is quite different, because of treaty obligations it confers a right on certain
countries (not all) to ask that persons who are alleged to have committed certain
specified offences in their territories, or who are alleged to have committed certain
specified offences in their territories, or who have already been convicted of those
offences by their courts, be handed over to them in custody for prosecution or
punishment. But despite that the Government of India is not bound to comply with
the request and has an absolute and unfettered discretion to refuse.
It was further held that, there are important differences between the two Acts. Firstly,
the Extradition Act applies to everybody, citizen and foreigner alike, and to every
class of foreigner, that is to say, even to foreigners who are not nationals of the
country asking for extradition. But, because of Article 19 of the Constitution of India,
1950, no citizen can be expelled (as opposed to extradition) in the absence of a
specific law to that effect; and there is none; also, the kind of law touching expulsion
(as opposed to extradition) that could be made in the case of a citizen would have to
be restricted in scope. That is not the case where a foreigner is concerned because
Article 19 does not apply. But a citizen who has committed certain kinds of offences
abroad can be extradited if the formalities prescribed by the Extradition Act are
observed. A foreigner has no such right and he can be expelled without any formality
beyond the making of an order by the Central Government. But if he is extradited
instead of being expelled, then the formalities of the Extradition Act must be
complied with. The importance of the distinction will be released from what follows;
and that applies to citizens and foreigners alike.
It was observed that, the Extradition Act is really a special branch of the law of
criminal procedure. It deals with criminals and those accused of certain crimes. The
Foreigners Act is not directly concerned with criminals or crime though the fact that
a foreigner has committed offences, or is suspected of that, may be a good ground for
regarding him as undesirable. Therefore, under the Extradition Act warrants or a
summons must be issued; there must be a magisterial enquiry and when there is an
arrest it is penal in character; and – this is most important distinction of all- when the
person to be extradited leaves India he does not leave the country as a free man; he
remains under arrest throughout and is merely handed over by one set of police to the
next.

In Re: K.R.P.L. Chockalingam Chettiar, AIR 1960 Mad 548: In this case, the Full
Bench of the Madras High Court, after referring to various authorities observed that,
extradition is the delivery on the part of one State to another of those whom it is
desired to deal with for crimes of which they have been accused or convicted and are
justiciable in the courts of other State. Referring to 25 Corpus Juris, page 254, it was
observed that, extradition has been defined to be surrender by one State or nation 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. It was observed that, extradition must be
distinguished from transportation and from deportation, which also results in the
removal of a person from the country. Further it was noted that:In re Arton, (1896) 1 QB 108,
it was held that, the foundation of extradition,which is the delivery on the part of one State to
another of those who have fled from justice, is founded on the principle that the reciprocal
surrender of criminals is in common interest of civilised communities.The objects of the
Indian Extradition Act are as follows: (a) to provide for the more convenient administration
of the Extradition Acts, 1870 and 1873, and of the Fugitive Offenders Act, 1881; (b) to
amend the law relating to the extradition of criminals in cases to which the Extradition Acts,
1870 and 1873 do not apply.