In simple words “Extradition” means when one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to the other's law enforcement. It is a formal process that enables governments to bring fugitives abroad to justice when one nation surrenders an individual to another nation for prosecution or punishment for a crime committed in the nation which has demanded the extradition.

The Supreme Court of India defined extradition as “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 justifiable in the Courts of the other State.” The nation which is requesting Extradition can request in the cases of under-investigation, under-trial and post-trail for convicted criminals. Extradition always depends upon its extradition policies and its relationships with such countries in the form of extradition treaties and arrangements.

The basic and main purpose of extradition is to prevent escape from punishment. This also causes deterrence among the criminals intending to flee from the authority of law. It is also a tool to reciprocate diplomatic kindness and enhance international cooperation.

The extradition is mainly based on four principles which include Reciprocity of the sovereign government, double criminality, Double Jeopardy, and principle of Sepciality.

Extradition: the new Trend

There has been a complete change in the law and system of extradition in last few years. Countries worldwide are taking these issues very seriously. Over the past few years the approach of the nations has seen a complete makeover. Treaties signed in recent decade shows the trend of taking into consideration “dual criminality” approach, classifying as extraditable all crimes that are punishable in both jurisdictions whereas the older extradition treaties included only covered offenses.

Extradition: Indian Scenario

Being ruled by the British rule for about 200 years, the entire Indian legal system is more or less affected by it and Extradition is one of them.

Before independence, the Extradition Act, 1870 of the UK was in existence and this Act enabled the extradition of fugitive criminals from and to other countries outside British dominions which included Commonwealth countries like India.

In the year 1881 Fugitive Offenders Act of the UK came which emphasized on extradition of fugitive criminals from and to countries within British possessions like India.

Later in the year 1903 the Indian Extradition Act was brought in which laid down the procedure to be followed in the country in cases of extradition with other countries. The British Empire also entered into extradition treaties with many Princely States in India.

Indian Extradition Act, 1962 was introduced and it was made applicable to the entire India to the exception of the Princely states.

The Act consists of five chapters and a Schedule that deals as under:-

Chapter I-        deals with preliminary matters
Chapter II-      deals with extradition of fugitive criminals to foreign states with no treaty or arrangement 
Chapter- III     deals with extradition to foreign states with existing treaties and arrangements 
Chapter- IV     deal with extradition of accused or convicted persons from foreign states
Chapter- V     deals with miscellaneous matters such as jurisdiction of offences committed at sea or in air, requisitions from more than one state etc. 
The Schedule-    is concerned with offences which are not to be regarded as offences of a political character.

The act was substantially amended in 1993 and some urgent clauses were added which provided for the procedure when an urgent request is made from a foreign state.

The Code of Criminal Procedure also provides for a few of the provisions which deal with Extradition and it has laid down a few sections that guide the authorities to deal with the process of extradition. There are four such sections – 41, 166A, 166B, 188.

• Section 41(1) of the Code of 1973 empowers the police to arrest any person without an order of a Magistrate and without a warrant. Sub-section (g) of Section 41 provides that if the police has reasonable grounds and credible information to believe that an individual has committed an act outside India and that act if done in India, would have been a punishable offence, then the police have a right to detain or arrest such an individual without a warrant.
• Section 166A of the Code deals with the provisions that arise when the issue of investigation in a country outside India arises. The provision provides that if during the course of an investigation, the investigating officer believes that substantial evidence may be available in a country outside India then any criminal court may issue a letter of request to a competent authority or a court in that particular country which is designed to deal with such matters. The request may consist of taking statements or retrieving documents. The court must follow the Central Government rules on this behalf and such requests are limited and bound to the existing treaty, if any, between India and the concerned country.
• Section 166B provides for the procedure when a request from a country outside India to a court or an authority for investigation in India. The section provides that if India receives such a letter from another country for the purpose of investigation in India which involves the production of any document or examination of a person, then the Central Government may forward the same to any Chief Judicial Magistrate or Chief Metropolitan Magistrate or some Judicial or Metropolitan Magistrate as he may appoint in this matter, who in turn would exercise his discretion and either summon the person for investigation or cause the document to be brought forward or sent the letter to a police officer who shall conduct the investigation in the same manner as if the offence was committed in India. After the investigation is complete, all the statements or documents will be forwarded to the Central Government, which will channel them to the Court or authority from the other country that issued the letter. Again, the government has the authority to reject the request as it depends on this existing relationship in the form of a treaty with the other concerned country.
• Section 188 provides for offences committed outside India. The section provides that if a person commits an offence, irrespective of whether he or she is a citizen or not, whether on the high seas or elsewhere, or on any ship or aircraft registered in India, he or she may be dealt with it as if the offence occurred within India. The government may refuse to extradite an offender if he or she has already been tried in India or may refuse to prosecute an offender if he or she has already been tried in another country for the same offence.

 
Extradition: Indian Treaties and Arrangements

Section 2(d) of the Extradition Act, 1962 defines an “extradition treaty” as a treaty, agreement or arrangement made by India with a Foreign State, relating to the extradition of fugitive criminals. Extradition treaties are traditionally bilateral. As discussed above, basic structure of these treaties embodies five principles worldwide which are:-

First,    Extradition can be done for only those offences which are mentioned in the treaty. 
Second,    Dual criminality principle which requires that the offence for which the extradition is sought shall be an offence under the legal systems of both the requesting and the requested country.
Third,     Requested country must be satisfied that there is a prima facie case made out against the accused. 
Fourth,     Rule of specialty requires that the extradited person must be proceeded against the same offence for which he was extradited in the first place. 
Fifth,     Extradited person must be given a fair trial.

Talking about the Indian context, it has Extradition Treaties in force with 48 countries and also some form of Extradition Arrangements too with 12 countries. In 2020, India established an extradition arrangement with Canada which is the latest country, and the latest agreement was signed with New Zealand in 2021. India has these treaties with countries like USA, UK, Russia, Saudi Arabia, Spain, UAE, Brazil, France, etc and in the neighbouring countries with Bhutan Bangladesh, Srilanka and Nepal.
The USA has Extradition Treaties with 117 countries, which is the maximum in the world whereas there are also few countries in the world that do not have these treaties with other countries.

Some countries that have extradition treaties with other nations are still known to refuse extradition requests very often and these countries include Ecuador, Cuba, Bolivia, Nicaragua, Iceland, Switzerland, Venezuela, and Zimbabwe. On the other hand, countries such as Spain and Yemen are known for returning fugitives even without an official extradition treaty.

Extradition: Challenges to India

The subject, as it appears is not so simple and has various complexities in it. There are several challenges arising within and without Extradition Treaties for India.

The “dual criminality” clause as it exists in almost every treaty of Extradition, is a double-edged sword. It essentially requires the offence to be accepted and criminalized by both nations. Even though it is a more convenient process but it poses several challenges for India. Socio-cultural offenses centered around issues like dowry harassment, which are prevalent in countries like ours is not considered or accepted as a serious offence in many other countries.

The principle of “double jeopardy” is also one of the principles which debar punishment for the same crime twice but has been the biggest challenge. For example, the case of David Coleman Headley aka Daood Sayed Gilani, one of the masterminds behind the 26/11 Mumbai attacks, has already been imprisoned in U.S. for killing 6 Americans for 35 years and hence could not be extradited to India where he was to be tried for killing nearly 140 persons.

The principle of the “rule of specialty” which requires that the accused when extradited can only be tried for the offences he was accused at the time of extradition. An example highlighting this principle is the case of 'Abu Salem from Portugal,' where additional charges framed by the enforcement agencies were criticized by the Supreme Court in Lisbon as a violation of extradition rules.

In addition to the situations mentioned above, human rights issues also pose significant challenges in India when dealing with extradition cases. India has lost several extradition cases in foreign courts based on human rights concerns and inappropriate living conditions. In the year 1996, the European Court of Human Rights dismissed the case of deportation of a Sikh Separatist, Karamjit Singh Chahal, to India on the possibility of misconduct by the Punjab Police. Again in 2017, the British courts rejected the extradition of the alleged bookie Sanjeev Kumar Chawla because of poor living conditions of Delhi’s Tihar Jail. Similarly, Neils Holck, accused in the Purulia Arms Drops case, was not extradited by the Netherlands to India due to poor prison conditions. Surprisingly, now these human rights concerns are being misused by accused fugitives outside India to avoid the completion of extraditions. A recent example is the case of Vijay Mallya, where his lawyers in U.K. courts argued that the conditions of Arthur Road Jail in Mumbai are inhuman and degrading.

Last but not least, traditionally economic and fiscal offences in treaties were not considered as criminal offences and hence not given so much importance by other countries. Thus, fugitives like Nirav Modi and his uncle Mehul Choksi are free and away from the hands of our Indian legal system.

Conclusion

The idea of instilling fear of legal action against a criminal regardless of their location, is the basic idea of the development of this field of law. It is evolving with time and working in the betterment of society and also bringing all countries on par in various fields of law. Apart from its loopholes in treaties, there are several other factors that slow down the process of extradition for any country, still an effective mechanism of bring criminals under the hammer of justice. The unreasonable procedural delay is due to extensive compulsory documentary and evidentiary requirements and also the burden of bilateral relations and the pressure of domestic politics.

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