Extradition Treaty
Extradition Treaty
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. 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. {1}
The instance of Extradition recently came up in Abu Saleem’s Case [2]. India’s diplomatic relation
with the Portugal Government and its commitment in the case were discussed and made to the
leading newspaper headlines. In this assignment, we will see what the case was and what are the
laws that govern extradition matter, and what is the actual scenario with the Portuguese.
Extradition is recognised as international machinery for the timely return of fugitives from foreign
countries. It is defined as the “delivery of an accused or convicted individual from the country he is
found in, to another country that requests his extradition.”
"Extradition Treaty" means a treaty, agreement or arrangement made by India with a foreign State
relating to the extradition of fugitive criminals and includes any treaty, agreement or arrangement
relating to the extradition of fugitive criminals made before the 15th day of August 1947, which
extends to, and is binding on, India. [3]
An extradition offence is one that, under the laws of both contracting States, carries a sentence of
imprisonment of at least one year; it excludes political offences but includes serious offences like
murder, causing an explosion, terrorism, etc., as well as offences that are solely related to the fiscal
system.
In India, the Law that governs extradition matters is known as “The Extradition Treaty, 1962”. This
law extends to the whole of India and has applied to India since 15th September 1962. [4] This law is
for extraditing persons to India and from India to foreign countries. The basis of the extradition
could be a treaty between India and another country.
Extradition Treaties
Extradition treaties are the agreements between Countries that govern the matters of extradition of
persons. India currently has extradition treaties with 48 countries. The nodal government body for
the extradition matters of India is the Ministry of External Affairs.[5] It provides a detailed account
of the number of fugitives surrendered from different countries.
India is a signatory to a number of multilateral treaties that offer a legally enforceable framework for
extradition in order to combat international crimes, including drug trafficking, terrorism, and the
hijacking of aeroplanes. Fugitive prisoners may also be demanded to be turned over to non-treaty
governments. With the promise of reciprocity from India, these requests may be taken into
consideration in line with the rules and regulations of the foreign state.
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Information about the fugitive criminals wanted in foreign countries is received from the
country or through Interpol.
The Interpol wing of the CBI then passes the information to the concerned police
departments.
The information is also passed on to the immigration authorities.
Then, action can be taken under the 1962 act.
Failure to fulfil dual criminality – if the act for which the criminal’s extradition is requested is not a
crime in the requested state, then the state can refuse extradition.
Political crimes – most nations refuse the extradition of political criminal suspects. This excludes
terrorist offences and violent crimes.
The possibility of certain forms of punishment – if the accused is likely to receive capital
punishment or torture in the requesting State, the requested state can refuse extradition.
Indian nationals who return to India after committing offences in West Asia/Gulf countries are not
extradited to those countries. They are liable to be prosecuted in India in accordance with Indian
Law, as bilateral treaties with these countries preclude (except Oman) extradition of own nationals.
[4] https://www.indiacode.nic.in/bitstream/123456789/1440/1/196234.pdf
[5] https://mea.gov.in/leta.htm
[6] https://byjus.com/free-ias-prep/extradition/
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Role Played by India In Extradition Treaty:
In British India, extradition was regulated by the United Kingdom’s Extradition Act (1870), followed
by the Extradition Act (1903). Presently, the Extradition Act (1962) (hereinafter referred to as ‘the
Act’) regulates extradition in India.
The Act provides for the extradition of fugitive criminals both from and to India. The extradition may
take place in accordance with any extradition treaty with the requesting or territorial state.
However, the Section 3 of the Act also provides that, in absence of any such treaty, any Convention
to which India and such requesting or territorial state are parties can be treated as the extradition
treaty for that matter. [72]
The Act imposes no explicit restriction on the extradition of Indian nationals to the requesting State;
however, the bar on extradition varies from treaty to treaty. Currently, India has extradition treaties
in force with the 48 countries.
Savarkar’s case
In 1910, Vinayak Damodar Savarkar was being brought to India from Britain via a vessel named
Morea, for his trial on a charge of treason and murder (Emperor v. Vinayak Damodar Savarkar.[9] He
escaped to France while the vessel was harboured at Marseilles. However, a French policeman, in a
mistaken execution of his duty, caught and surrendered Savarkar to the British authorities without
following the extradition proceedings. Later, France demanded Britain hand over Savarkar to
formally carry out his extradition procedure. Britain refused France’s demand, and the case was laid
before the Permanent Court of Arbitration in Hague. The Court agreed with the happening of
irregularity on the part of the French policeman. However, France’s demand for a fresh extradition
procedure was rejected owing to the absence of international law regarding such circumstances.
The case of Mr. Vijay Mallaya, the business tycoon and owner of Kingfisher Airlines and United
Breweries Holdings Ltd., is arguably the most well-known extradition case in India (Dr Vijay
Mallya v. State Bank Of India .[10] He owed a whopping debt of over ₹6,000 crores to 17 Indian
banks including the State Bank of India and the Indian Overseas Bank. Fearing an impending arrest,
Mallaya fled from India to the United Kingdom in 2016. His extradition was sought by India in 2017.
Mallya’s extradition case was laid before the Westminster Magistrate’s Court in London. In 2018, the
Court ordered his extradition to India. His appeal at the High Court in London was rejected; however,
he has not been brought back to India yet due to ongoing legal procedures. It’s also worth noting
[7] https://indiankanoon.org/doc/1569648/
[8] https://blog.ipleaders.in/extradition-in-international-law/
[9] (1911) 13 BOMLR 296
[10] REVIEW PETITION (CIVIL) NOs.2175-2178 OF 2018
[11] https://legislative.gov.in/sites/default/files/A2018-17.pdf
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that in 2019, he was declared a ‘Fugitive Economic Offender’ under the Fugitive Economic Offenders
Act, 2018.[11]
Mr Nirav Modi was a luxury diamond jewellery merchant. In 2018, the Punjab National Bank (PNB)
filed a complaint before the Central Bureau of Investigation (CBI), alleging Nirav, along with his wife
Mrs Ami Modi, of fraudulently obtaining fake Letters of Understanding (LoU) worth ₹11,400 crores.
The money was then channelised to his fifteen overseas sham companies. Following a CBI probe, the
Enforcement Directorate (ED) confiscated Nirav’s assets in India. He fled India and sought asylum in
the United Kingdom. Interpol issued a Red Corner Notice against him in 2018. Following an
extradition request from India, a Westminster Court issued an arrest warrant against Nirav. The
Court ordered his extradition to India in 2021.
In this 1891, a murderer escaped from Switzerland to England. The government of England rejected
the extradition request of Switzerland. The court held that the accused murdered in order to cause
political disturbance, which constitutes a crime of political nature. Hence, England was not obliged
to extradite him.
In this of 1894, a fugitive criminal escaped from Paris to England after blasting a bomb in a public
place in Paris. The government of England refused France’s request for extradition. The court
ordered the government of England to accept the request for extradition, as the fugitive was not a
political offender.
Conclusion
Extradition is an essential tool not only to render justice but also to test diplomatic ties. However,
the absence of extradition treaties with many countries becomes the loophole that fugitive criminals
exploit. There is a need to bring about a comprehensive international law relating to extradition. It is
this lacuna which may not only cause economic or judicial issues in the fugitive’s origin country but
also pose far-fletching implications like security threats in the country where takes refuge.
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[12] https://cbi.gov.in/
[13] In re Castioni, [1891] 1 QB 149, United Kingdom: Court of Appeal (England and Wales), 10 November
1890, available at: https://www.refworld.org/cases,GBR_CA_CIV,48abd5390.html [accessed 5 October 2022]
[14] In re Meunier, United Kingdom: High Court (England and Wales), 11 June 1894, available at:
https://www.refworld.org/cases,GBR_HC_QB,3ae6b68214.html [accessed 5 October 2022]
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Conclusion
To Conclude, we can say that even when a treaty is in place, political friction can arise throughout
the extradition process, which allows countries to send fugitives overseas to justice. Extradition
agreements assist governments in bringing criminals who have escaped justice.
Apart from the challenges faced in extradition, lengthy procedural delays also play a vital role in the
unnecessary delays and bringing the culprit to justice.
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