By Tanishka Tiwari

Published on: December 13, 2023 at 00:04 IST

A person who commits or is accused of committing an offence is usually tried in the nation where the crime was committed or is believed to have been committed. What happens if the person escapes such a country to avoid facing the trial? What if a convict flees the territory of such a nation to avoid conviction?

In such circumstances, the country from which the convict or accused fled publicly demands that he be returned to the country he escaped. Extradition refers to returning a convicted or accused person to the country he fled.

Extradition is required when a person accused of a crime in one jurisdiction escapes to another. In this case, the requesting state seeks that its citizen be returned to stand trial for their offences.

Asylum occurs when a person flees to another state for safety because he fears prosecution in his native state. The court determined that they are exclusive in the case of Columbia vs. Peru.¹ There are two options: extradition or asylum.

Generally, each state has jurisdiction over all persons resident on its territory. However, there may be situations when a person, after committing a crime, may flee to another country to save himself. In such a case, the country from which the person fled cannot exercise jurisdiction to prosecute the guilty person.

This scenario is critical for establishing peace and order. In such instances, international cooperation between countries might help to maintain peace and order in the country.

As it is a social norm to punish offenders, the principle of extradition has been recognised because if there is no such form of collaboration among countries, exercising jurisdiction in other countries and prosecuting offenders will be impossible.

The state where the accused was discovered is known as the “territorial state,” while the state where the crime was committed is known as the “requesting state.” Extradition is not entirely based on international law; instead, it is based on bilateral and multilateral treaties and national legislation.

The Extradition Law could be considered a dual law because it incorporates national and international law elements. The territorial state’s national court decides the decision to extradite a fugitive. Still, it can also be considered part of international law because the territorial state’s decision directly impacts the relationship between two or more states.

Meaning of Extradition

‘Extradition’ is derived from two Latin words: ‘ex’, which means ‘out’, and ‘tradium’, which means ‘give up.’ It is founded on the Latin legal principle “aut dedere aut judicare,” meaning “either extradite or prosecute.”

In the words of Oppenheim, “Extradition is the delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed or to have been convicted of a crime by the state on whose territory he happens to be.”

According to Starke, extradition denotes the process by which one state surrenders to another at the request of another. A person accused or convicted of a criminal offence committed against the laws of the requesting state, such requesting state is competent to try the alleged offender under the treaty or based on reciprocity.

According to Grotius, each state is responsible for punishing offenders or repatriating them to the states where they committed the crime.

“Extradition is the surrender by one nation to another of an individual accused or convicted of an offence outside of its territory and within the territorial jurisdiction of the other which, being competent to try and punish him, demands the surrender,” Chief Justice Fuller quoted in the case of Terlinden v. Ames.²

From the preceding definitions, we can conclude that offenders can be quickly punished through extradition, whether they flee to another country to save themselves, as each state must punish criminals. Thus various laws and treaties are made or are being formed to deal with such cases and situations efficiently.

Many may wonder why returning him to the country where he committed the crime is necessary. Why can’t he be tried in the country where he was apprehended? It is critical to get him back since different judicial actions are underway in different nations.

The country where he committed the crime may prosecute him differently. It’s also possible that he fled or absconded throughout the court proceedings. As a result, bringing him back is critical to completing the trial. There is also proof and witnesses in that country.

This is also done to stem the tide of foreign criminals. Some offenders commit crimes in multiple countries. Extraditions can deliver justice by returning people to the nations where they committed the crime and punishing them. It is also critical for that country’s security to eliminate that specific individual.

Extradition laws need to be established under International Law since it is a domain that does not fall entirely under the purview of International Law. It is classified as dual law since it has national and international implications.

Attempts were made to develop laws relating to extradition, such as the draft convention by Harvard Law School in 1935 and the International Law Commission in 1949, which included it in its tentative list of topics for codification.

Due to the lack of a multilateral treaty or convention, extradition is now carried out by States based on bilateral treaties and in compliance with municipal legislation. According to international law, a state is under no duty to hand over an alleged criminal to a foreign state because one of the principles of sovereignty is that every state has legal power over the individuals inside its borders.

Due to the lack of international obligations and the desire to have the power to demand such offenders from other nations, a web of extradition treaties or accords has developed. When there is no applicable extradition agreement, a sovereign may still request the expulsion or lawful return of an individual under the domestic legislation of the requested state.

This can be performed through the requesting state’s immigration laws or other aspects of the requesting state’s domestic law. Similarly, many countries’ penal codes have clauses allowing extradition without an agreement. In the absence of an extradition treaty, sovereigns may nonetheless request the expulsion or lawful return of a fugitive from the territory of a requested state.

No country in the world has extradition treaties with every other country; for example, the United States does not have extradition treaties with China, the Russian Federation, Namibia, the Emirates, North Korea, Bahrain, or many other countries.

The philosophy behind extradition

The goal of extradition is to prevent crimes and punish criminals who have escaped their sentence and moved to another country. As we know, it is easier for the country to punish the offender where he committed the offence and to gather evidence against him for that particular offence.

However, if the country cannot punish him due to legal technicalities or a lack of jurisdiction, he can be extradited to his home country. Thus, the extradition process aims to prevent and reduce international crimes.

Thus, the role of extradition is to prevent crimes and punish criminals because it is in the interest of all countries to punish criminals and prevent crimes. After all, the country in which a person of criminal character resides is interested in ensuring the extradition of such a person. Still, it also depends on bilateral treaties and the principle of reciprocity. Where there is no treaty or agreement, the country can request the other country where the person resides.

Because of the rise of international crime in recent years, the importance and incidence of extradition have grown. Extradition clauses have recently been mentioned in international treaties. The widespread acceptance of human rights has increased the occurrence and significance of extradition. International collaboration is especially important in extradition proceedings because almost no country has an extradition treaty with every other country.

Extradition is founded on the belief that an accused or convicted person can be tried or punished most effectively where the cause of action arose, or the offence occurred. This is because prosecuting the criminal in the nation where he committed the act is far more advantageous; for example, obtaining relevant evidence is far more convenient in the country where the offence was done than in any other country. Furthermore, such a country has a substantial stake in penalising the wrongdoer.

Furthermore, while dealing with extradition, the issue of state sovereignty comes into play. State sovereignty refers to a state’s ultimate control over its inhabitants and territorial jurisdiction. So, legally, no state is obligated or forced to hand over to another state any person (whether a citizen or a non-citizen) currently present inside its territorial authority.

However, the reciprocal interests of both the territorial state and the asking state in maintaining law and order and administering justice require the nations to work together to repatriate the accused person or convict to the requesting state.

As a result, to avoid a conflict between state sovereignty and the administration of justice, most states join various extradition treaties. Furthermore, several countries include extradition clauses in their penal codes.

International criminal cooperation and extradition

States attempting to combat crime are frequently hampered by their international nature. Police and prosecutors are increasingly finding evidence and suspects scattered or hidden across borders as criminals and crimes transcend traditional concepts of territorial jurisdiction.

International cooperation is necessary for the rule of law to be eroded. In response to this difficulty, governments use international criminal cooperation structures. These systems cover many aspects of the criminal justice process, from evidence collection to criminal prosecution and trial to punishment.

Extradition is undoubtedly the most well-known of these methods and is crucial in combating transnational crime. Extradition is the official legal process by which criminal suspects or convicted criminals are transferred from one state to another for prosecution or punishment. While detailed global extradition figures are unknown, a UN study of 35 countries identified approximately 3,000 extradition requests in 2012.

Extradition treaties evolved as a result of the absence of an international obligation for a state to surrender an alleged criminal to a foreign state because each state has a right and authority over its citizens and is under no implied obligation to extradite them without the penal procedures of most nations containing extradition clauses in the absence of an extradition treaty.

Thus, enacting legislation and incorporating agreements and conventions allow for creating conditions and standards under which extradition requests may be denied or acknowledged. The following are the grounds why a criminal should be extradited to the requesting state:

• Extradition is used to punish or prosecute a criminal who has fled to a state where he cannot be punished owing to a lack of jurisdiction or technical criminal law rules.
• It serves as a deterrence by warning criminals who flee to another state after committing a crime.
• Offenders are surrendered for peacekeeping to defend the territorial state’s interests.
• Extradition is founded on the concept of reciprocity, which states that a state requesting the surrender of a fugitive may later be required to extradite a criminal to another state.
• The United Nations aims to maintain international peace and collaboration, and extradition is one method of achieving that cooperation.
• Because the evidence and witnesses are freely available and accessible in the state where the crime was committed, that state is better qualified to punish and prosecute the offender.

Extradition can help to resolve international crimes to a considerable extent if countries work together to eliminate crimes.

Thus, the most modern extradition treaties seek to balance individual rights with the need to ensure that the extradition process operates and functions effectively and are based on principles that are now regarded as established international norms, which are designed not only to protect the integrity of the process itself but also to provide the fugitive offender with a degree of procedural fairness.

Purpose of extradition

The territorial state extradites an accused or convicted person to the requesting state for the following reasons:

To prevent escape from punishment

Most fugitive convicts or accused persons flee to other countries to avoid the coming punishment for the crime for which they have been convicted or charged. Such unjustifiably motivated suspects or prisoners should be deported so that their crimes do not go unpunished.

Extradition as a deterrence

Every successful extradition serves as a red flag to offenders who desire or plan to depart the territory of the legally competent state. As a result, extradition serves as a deterrence to criminals.

To maintain peace in the territorial state

Suppose the territorial state does not deport the prisoners or accused persons. In that case, it sends the wrong message to criminals who intend or plan to flee the territorial clutches of the juridically competent state. If the territorial state refuses to extradite convicts or accused persons living within its borders, it will encourage more of them to do so. As a result, such a country risks becoming a refuge for international criminals, compromising the safety and tranquillity within its borders.

To reciprocate diplomatic kindness

Extradition is also one of the best ways to show the requesting state’s diplomatic support. It strengthens diplomatic ties between the territory and requesting countries.

To enhance international cooperation

Whether bilateral or multilateral, extradition accords serve as examples of international collaboration in international dispute resolution.

Principles of extradition

Numerous facets of international law support the notion of reciprocity. It states that any act of favour, respect, benefit, or penalty bestowed on persons or legal entities of another country must be returned (reciprocated) in kind. It allows for the mutual expression of international solidarity. Regarding extradition, the concept of reciprocity applies, which states that the territory state must extradite the accused or convicts in exchange for any diplomatic courtesy offered by the requesting state. Such diplomatic generosity can take the form of any act, from tariff reductions or the execution of foreign judgements to military or economic assistance. This principle may also apply to the mutual extradition of accused or convicted citizens of the respective countries.

Principle of Reciprocity

According to the principle of double criminality, the conduct for which the accused person or convict is sought extradited by the requesting state must also be a crime in the territorial state. The fugitive’s action must be a crime in both the territory and requesting states. For example, if an individual is convicted of ‘perjury’ under English law, but his actions do not constitute ‘perjury’ under American law, America may refuse England’s request to extradite him.

Principle of Double Criminality

The notion of double jeopardy is often known as the ‘non-bis in-idem’ principle. It states that if a person has already been prosecuted and sentenced for an identical offence, he or she cannot be extradited. Except for the expiration of the sentence, no offender who has been tried and convicted once can be extradited for the same offence.

Principle of Double Jeopardy

The notion of double jeopardy is often known as the “non-bis in-idem” principle. It states that if a person has already been prosecuted and sentenced for an identical offence, he or she cannot be extradited. Except for the expiration of the sentence, no offender who has been tried and convicted once can be extradited for the same offence.

Principle of Speciality

According to the concept of specialisation, the requesting state is obligated to try or punish the extradited offender exclusively for the offence for which he is extradited. In the case of United States v. Rauscher,³, for example, a fugitive felon was extradited from the United Kingdom to the United States of America to stand trial for a murder committed on board an American ship. Following his extradition, the offender was convicted of grievously injuring a man rather than the alleged murder for which he was extradited. This was due to the lack of solid evidence to convict him of the purported murder. The Supreme Court overturned the conviction because it violated the Extradition Treaty.

Extradition Laws in India

Extradition was governed in British India by the Extradition Act (1870), which was replaced by the Extradition Act (1903). The Extradition Act (1962) (hence referred to as ‘the Act’) now governs extradition in India.

The Act calls for fugitive criminals to be extradited from and to India. Any extradition treaty with the requesting or territory state may be used to carry out the extradition. However, the Act also states that, in the absence of such a treaty, any Convention to which India and such requesting or territory state are signatories can be treated as an extradition treaty.⁴

The Act makes no specific prohibition on the extradition of Indian people to the requesting State; nonetheless, the prohibition varies by treaty.

According to Section 31 of the Act,⁵ a fleeing criminal must not be surrendered:

• If the crime he committed or believed to have been committed is political.
• If the crime committed or alleged to have been committed by him is time-barred under the laws of the requesting state.
• If there is no clause in the extradition treaty or arrangement declaring that he would not be tried for any offence other than the one for which he has been deported.
• If he has been charged with any crime in India other than the one for which extradition is sought, and until fifteen days after being sent to prison by a magistrate.

Currently, India has extradition treaties in force with 48 countries and extradition arrangements with 12 countries. Extradition arrangements are agreements between the requesting and territorial states in which it is agreed that extradition will occur following the territorial state’s local laws and international norms rather than the requesting state’s local laws.

Abu Salem’s Case

Abu Salem is a well-known criminal and gangster who is serving multiple life terms in separate crimes. Salem was one of six convicts found guilty in 2017 under the Terrorist and Disruptive Activities (Prevention) Act of being responsible for the Mumbai bombings in 1993, which killed 257 people and injured 713 more. The TADA court sentenced Taher Merchant and Feroz Abdul Rashid Khan to death, while Salem and Karimullah Khan were sentenced to life in prison.

In another case, a TADA judge sentenced Salem to life in prison in 2015 after finding him guilty of the 1995 murder of builder Pradeep Jain. He was found guilty under numerous parts of the TADA Act, the Explosives Act of 1884, and the Arms Act of 1959.

While extraditing Salem, India’s then-Deputy Prime Minister, L K Advani, offered Portugal a solemn sovereign promise that Salem would not face the death penalty and would not be imprisoned for more than 25 years. The Portuguese government handed over Salem to Indian authorities based on this pledge.

On a petition submitted by Salem, the High Court in Lisbon ruled in September 2011 that there had been a breach of the Indian commitment given to the Portuguese authorities by levying fresh charges carrying the death penalty. The Central Bureau of Investigation (CBI) appealed to the Portuguese Supreme Court in 2012.

Later that year, the Portuguese Constitutional Court suspended the verdict of the Portugal High Court, accusing India of violating the extradition agreement. India also highlighted a judgement of the Supreme Court of India in which it stayed the further charges brought against Salem in its submission.

In 2022, a Supreme Court Bench comprised of SK Kaul and MM Sunderesh stated that India should honour its commitment to Portugal and requested that the Central Government advise the President to use its powers under Article 72 of the Indian Constitution titled “Power of President to grant pardons, etc., and to suspend, remit, or commute sentences in certain cases.”

The Court further stated that the appropriate papers should be sent within a month of Salem’s 25th year in prison. The Central Government may also use Sections 432⁶ and 433⁷ of the Code of Criminal Procedure (CrPC).

The government added and assured that the question of Salem’s release will come only when he has served 25 years in prison, and that the matter will be dealt with under the relevant legal requirements at that time.

Vijay Mallya’s case

Mr. Vijay Mallaya’s case, as the owner of Kingfisher Airlines and United Breweries Holdings Ltd., is undoubtedly India’s most well-known extradition case. He owed about 6,000 crores in debt to 17 Indian institutions, including the State Bank of India and the Indian Overseas Bank. Mallaya moved from India to the United Kingdom in 2016, fearing imprisonment. India requested his extradition in 2017. The Westminster Magistrate’s Court in London heard Mallya’s extradition case. The Court ordered his extradition to India in 2018. His appeal at the High Court in London was denied, but he has yet to be sent to India due to ongoing legal proceedings.

Nirav Modi’s case

Mr. Nirav Modi was a high-end diamond jeweller. The Punjab National Bank (PNB) filed a complaint with the Central Bureau of Investigation (CBI) in 2018, accusing Nirav and his wife, Mrs. Ami Modi, of illegally acquiring phoney Letters of Understanding (LoU) worth 11,400 crores. The funds were subsequently transferred to his fifteen overseas phoney corporations. Following a CBI investigation, the Enforcement Directorate (ED) seized Nirav’s assets in India. He fled to the United Kingdom in search of asylum. In 2018, Interpol issued a Red Corner Notice on him. A Westminster Court issued an arrest warrant for Nirav in response to an extradition request from India. His extradition to India has been ordered by the Court for 2021.

Conclusion

Extradition is an essential tool for delivering justice and putting diplomatic ties to the test. However, the lack of extradition accords with many nations creates a loophole for fugitive criminals. There is an urgent need to develop comprehensive international extradition law. This void may generate economic or judicial problems in the fugitive’s home country and have far-reaching consequences, such as security dangers in the country where the fugitive seeks sanctuary.

References

• ISHA_AGRAWAL-_EXTRADITION_UNDER_INTERNATIONAL_LAW.pdf (ijlljs.in)
• (PDF) Extradition under International Law: Tool for Apprehension of Fugitives (researchgate.net)
• Defending core values: Human rights and the extradition of fugitives (sagepub.com)
• ORF
• Extradition Laws : Full Paper – Indian Legal Solution
• Extradition Under International Law: Overview of Basic Principles, Applications and Challenges in Extradition Law by Aruni Wijayath :: SSRN

Endnotes

1. [1950] ICJ 6

2. 184 U.S. 270 (1902)

3. 119 US 407 (1886)

4. The Extradition Act, 1962, s.3, No.34, Acts of Parliament, 1962 (India)

5. The Extradition Act, 1962, s.31, No.34, Acts of Parliament, 1962 (India)

6. Code of Criminal Procedure, 1973, s.432, No.2, Acts of Parliament, 1974 (India)

7. Code of Criminal Procedure, 1973, s.433, No.2, Acts of Parliament, 1974 (India)