This post is written by Pragya Yadav, a Third-year law student from IIMT, IP University, Delhi.
When a person who has committed some offence or crime in his country and to escape the punishment of such crime, he flees to some other country. The delivery of such person, on the request of the country in which he has committed the crime, by the country in the offender happens to be in, for the time being, is called extradition.
Under international law, there are no general rules or duties in regards to the subject matter of extradition. Extradition is depended upon the diplomatic treaties between the countries or extradition acts.
The court in the case of Factor v. Laubenheimer held that “the principles of International Laws recognise no right to extradition apart from treaty while a government may, if agreeable to its own constitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he fled…..the legal right to demand his extradition and the correlative duty to surrender him to the demanding state exists only when created by treaty.”
But as there are no general rules or duty under the international law in regards to extradition, some countries may grant the extradition even without any treaty in place.
EXTRADITION LAWS IN INDIA
The rules relating to the extradition of a fugitive in India are laid down in the Extradition Act, 1962. The act deals with 2 schedules and five chapters. The government of India has entered into extradition treaties with 47 countries and also has extradition arrangements with 9 countries in order to have an efficient extradition process.
The extradition treaties and arrangements create an obligation for the parties to such treaties. For instance, the countries with which India has a treaty are obligated to consider any request of the extradition made by India. But the countries which do not have an extradition treaty with India will not be under any obligation to consider extradition requests made by India.
Extradition is a sovereign act and where there are no treaties between the countries, any extradition action relies upon the ideas of reciprocity and harmony which are important aspects of International principles.
The Extradition Act, 1962 defines Extradition treaty under Section 2(d) as “a treaty, agreement or arrangement with a foreign state in the relation of extradition of fugitive criminals”.
According to Section 3 of the Extradition Act, the government can issue a notification to extend the notifications of the act to the notified countries. The act further defines the ambit of what Extradition offences are and who can be extradited as per Section 2(c) and Section 2(f) respectively.
ESSENTIAL CONDITIONS OF GRANTING EXTRADITION
Generally, International Law relies on the treaties for the matters concerning Extradition. However, the courts have also established some principles and rules regarding Extradition matters. These conditions are:-
- NON-EXTRADITION OF POLITICAL CRIMINAL
One of the most important principles of the International Law is non-extradition for political crimes. This practice of non-extradition of political criminals first began with the French revolution in 1789. In the present time, most of the states follow this principle although there are many difficulties in the enforcement of this principle.
- RULE OF SPECIALITY
The rule of speciality says that the accused should only be prosecuted for the crime for which he was extradited. In the case of U.S v. Rauscher, America extradited Rauscher from Britain on the ground that he had murdered a fellow servant on an American ship and fled to Britain to escape the punishment. But in America, Rauscher was tried for causing grievous hurt to a man named Janssen. The Supreme Court of America, in this case, held that when a man is brought under the jurisdiction of the court under the extradition treaty then he will only be tried for the offence for which he was extradited. India also follows this rule of speciality.
The crime for which the criminal is being extradited should be a crime in the country requesting the extradition as well as the country granting the extradition.
It is necessary that in the matters regarding the extradition all the prescribed formalities should be fulfilled by both the countries.
RESTRICTIONS ON SURRENDER OF FUGITIVE CRIMINALS IN INDIA
Under Section 31 of the Extradition Act, 1962, there are some restrictions provided for the surrender of the fugitive criminals. These restrictions are:-
- OFFENCE OF POLITICAL CHARACTER
If the reason for the Extradition of a fugitive criminal is of a political character or if it satisfies the court before whom he may be produced or the central government warrant for his extradition has been made with a view to punish him for a crime of political nature, then the fugitive will not be extradited.
- PROSECUTION FOR OFFENCE BEING BARRED BY TIME
The extradition will not be granted if the time for the prosecution of the offence, for which the extradition of the fugitive criminal is sought for, has lapsed according to the law of that State or Country.
- EXTRADITION TREATY OR PROVISION BY LAW OF FOREIGN STATE THAT FUGITIVE CRIMINAL SHALL NOT BE TRIED OR DETAINED IN THAT FOR ANY OFFENCE COMMITTED PRIOR TO HIS SURRENDER OR RETURN
According to this provision, a fugitive criminal will not be surrendered to a foreign state unless there is either a provision by the law of the foreign state or in the extradition treaty that the fugitive criminal will not be detained or tried in that foreign state or country for any offence committed by him prior to his surrender or return other than the extradition offence proved by the facts of which his surrender or return is based until he has been restored or had an opportunity to return to India.
- AFTER EXPIRATION OF 15 DAYS IN THE PRISON
A fugitive criminal will not be surrendered or returned until after the expiration of fifteen days from the date of his being committed to prison by the magistrate.
- DISCRETION OF THE CENTRAL GOVERNMENT TO DISCHARGE ANY FUGITIVE CRIMINAL
In the case where the Central Government is of the opinion that the reason for the return of the fugitive criminal is not made in good faith, or in the interest of justice or is made for any political reasons or has reasons to believe that it would unjust to return the fugitive. Then, in this case, the Central Government has discretionary power to cancel any warrant issued and also discharge the fugitive criminal against whom such warrant was issued.
- George J. Andreopoulos, Extradition, https://www.britannica.com/topic/extradition
- Abhishek Puri, Law of Extradition and treaties with some countries at the international level, http://www.legalserviceindia.com/legal/article-90-law-of-extradition-and-treaties-with-some-countries-at-international-level.html
- Priyansh Yadav, Extradition and Asylum, https://www.legalbites.in/extradition-and-asylum/
- Dr. S.K Kapoor, International Law and Human Rights (Central Law Agency)
- Image from here