Purpose of Extradition

The article 'Purpose of Extradition' by Vanshika Malhotra is an analysis of the meaning, purpose, various case laws and laws governing extradition. The article in a precise way discusses the interface between asylum and extradition. Due to criminal activity and cross-border movement, extraterritorial criminal jurisdiction has become necessary and customary. States have developed extradition laws because they are vehemently interested in punishing criminals who break their domestic laws and damage society's overall peace.

Introduction: Definition and Importance of Extradition

According to 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 the alleged criminal happens for the crime to be."

According to Starke, the term extradition denotes

"the process whereby under treaty or upon a basis of reciprocity one state surrenders to another state at its request a person accused of a criminal offence committed against the law of requesting state, such requesting state being competent to try the alleged offender."

According to Grotius,

"it is the duty of each state either to punish the criminals or to return them to the states where they have committed a crime."

The Latin words "ex" and "traditium" are the origin of the word "extradition." It can also be used to refer to the surrender or handover of fugitives. Extradition is a formal procedure through which one state asks another to turn over a person or wanted criminal for the purpose of criminal investigation or prosecution. Extradition is the act of handing over someone from one state to another so that they might face justice for crimes they are charged with or found guilty of in the other state's courts. Those who have been accused of a crime but have not yet been brought to justice, those who have been tried and found guilty but have escaped from custody, and those found guilty in absentia may all be extraditable.

These offences must have been committed outside of the state of refuge and be punishable by law in the state making the request. The Extradition Treaty between the two nations must have been signed. Although states can extradite one another without a treaty, this rarely happens. The territorial State, or the State where an accused or convicted person is found and to whom the request is made, is one of the two States that are involved in extradition. Additionally, another state is being asked, for instance, a state where the offence was committed. It is customary to make the request through the diplomatic process.

Purpose of Extradition

A criminal is extradited to the requesting state because extradition is based on the general idea that it is in the best interests of civilised societies for criminals to face justice, and as a result, it is acknowledged as a component of international comity that one state should typically provide assistance to another state in prosecuting offenders. Extradition serves as a signal to criminals that they cannot evade punishment by working through another State, which has a deterrence impact. Criminals are turned over in order to protect the territorial State's interests.

Extradition is carried out because it is a step towards achieving global cooperation in the resolution of global social issues. The basis of extradition is reciprocity. Because evidence is more easily accessible only in that State, the State where the crime was committed is better positioned to try the criminal.

Extradition can let states bring criminal charges for transgressions of wholly domestic laws as well as enforce international criminal law. Aside from criminal law, extradition serves the purpose of preserving the rights of the wanted person. Trying to strike the right balance between allowing fugitive criminals to freely move to states where they can be tried for their crimes and protecting the fugitive from oppressive punishment or from persecution due to his personal characteristics, beliefs, and opinions is a problem with extradition.

Alternative methods, such as exclusion, deportation, or abduction, lack the built-in safeguards of extradition arrangements, allowing the fugitive's rights to be ignored even when the system is being properly used to affect the return of a fugitive criminal. This is because extradition is the specific means created by states for that purpose. In the current state of extradition legislation and practice, the viability of these devices is crucial. Similar to how the need for a single convention or model code of extradition has led various international bodies to consider the possibility of reaching an agreement at various points in time, the need for a single instrument with a global application would be well served by a common obligation to extradite.

Laws Governing Extradition in India

In 1902, India passed its first Extradition Act. Prior to the 1962 Act, extradition was governed by the United Kingdom Extradition Act of 1870. The legal framework for extradition in India is provided by the Extradition Act of 1962. It consolidated the laws governing the extradition of criminals who must be abroad from India. Act 66 of 1993 significantly altered the Indian Extradition Act, of 1962. The Indian Extradition Act, of 1962 governs the extradition of a wanted offender from India. This applies to both extraditing individuals to India and extraditing individuals out of India. A treaty between India and another country may serve as the foundation for the extradition.

According to Section 2(c) of The Indian Extradition Act, 1962, "extradition offence" means―

(i) in relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty with that State;

(ii) in relation to a foreign State other than a treaty State an offence punishable with imprisonment for a term which shall not be less than one year under the laws of India or of a foreign State and includes a composite offence.

The term "extradition treaty" is defined in Section 2(d) of the Indian Extradition Act 1962 as a treaty (or agreement or arrangement) between India and a foreign State pertaining to the extradition of fugitive criminals. This definition also includes any treaty pertaining to the extradition of fugitive criminals made prior to August 15, 1947, which extends to, and is binding on, India.

If a treaty is absent, the foreign country may accept the request or reject it and subject it to its domestic legal and procedural requirements. Therefore, the need to extradite is a result of the agreements and accords that India has made with other countries. It is important to understand that extradition is a sovereign act and that any extradition activity is dependent on the concepts of reciprocity and comity, which are fundamental components of the international principles of amicable cooperation between states or nations, in cases where there is no treaty and no international obligation between the two sovereign states.

The Government of India must notify those States with which it had extradition treaties prior to independence, according to Section 3(1) of the 1962 Act. This would clear up all uncertainty and doubts without leading to confusion about specific issues.

With a number of nations, including Fiji, Italy, Papua New Guinea, Singapore, Sri Lanka, Sweden, Tanzania, and Thailand, India has extradition agreements. Additionally, India has extradition agreements in place with 37 nations, including the US, UAE, UK, Switzerland, Russia, Saudi Arabia, Australia, Bangladesh, Bhutan, France, Germany, Korea, Hong Kong, Mexico, Poland, and others.

When a wanted felon is an Indian national, Section 188 of the Code of Criminal Procedure of 1973 allows for action to be taken in the same way as if the crime had been committed in any location in India. The Central Government must first approve the case in order to prosecute a fugitive like this. Criminals who are still being investigated, who have not yet been tried, or who have already been convicted may be the subject of an extradition request. The law enforcement agency must take numerous safeguards in situations that are still being investigated to make sure that it has sufficient prima facie evidence to support the allegation before the foreign state's courts of law.

A State is not required by international law conventions to turn up a fugitive to a different sovereign state. According to International Law, governments are not required to extradite anyone. Although there are some fundamental guidelines for the extradition procedure that are acknowledged and followed by many countries.

(i) The Principle of Dual Criminality: One of the most important ideas guiding the law of extradition is the principle of dual criminality, sometimes known as the principle of dual criminality. It states that the extradition process can only take place when the criminal act under investigation is a crime in both the sovereign states' respective legal systems.

(ii) Rule of Speciality: The purpose of this rule is to prevent the requesting state from making general extradition requests. According to the regulation, a fugitive who is extradited for one crime shall only be tried for that crime and not for any others.

(iii) The Principle of Proportional Punishment: When there is a chance that the extradited person would receive a punishment that is excessive or severe relative to the severity of the offence, extradition may be refused. This guideline is specifically used to prevent violations of the widely accepted worldwide human rights norm. According to this concept, a request is turned down when there is a chance that the fugitive will die in the state making the request, protecting international human rights standards.

Legal Duty of a State

Grotius enunciated that a State of refuge has a duty either to punish the offender or to surrender him to the State seeking his return. The principle of 'prosecution or extradition' is a legal duty of the State where the offender is found. It is a duty based on natural law. Vattel also similarly viewed extradition as an imposed duty upon the states by International law in matters of serious crimes. The principle of prosecution or extradition has been expressed by the maxim 'aut dedere aut judicare'.

The judgment of the International Court of Justice, Belgium v. Senegal, ICJ GL No 144, elucidates aspects of the implementation of the obligation of a State to extradite or prosecute an offender. It concentrated on the connections between various provisions on the establishment of the jurisdiction (Article 5), the duty to conduct an initial investigation (Article 6), and the duty to prosecute or extradite (Article 7).

The duty to prosecute is the duty to bring the case before the prosecuting authorities; it does not involve the duty to bring a case. However, the beginning of the proceedings may or may not follow the satisfaction of the requirement.

Effectively carrying out an extradition or prosecution obligation necessitates taking the necessary national steps to criminalise the relevant offences, establishing jurisdiction over the offences and the persons involved who are present on the state's territory, conducting an investigation or primary inquiry, apprehending the suspects, and presenting the case to the prosecuting authorities or extraditing, if an extradition request is made by another State with the necessary legal framework. Deportation, extraordinary rendition, or any other informal method of sending the accused to the other State cannot, however, replace the requirement of extradition.

In the case of Factor v. Labubenheimer, 290 U.S. 276, the Supreme Court of the United States of America ruled that extradition is not recognised by international law absent a treaty. Although a Government may freely use the power to turn over a fugitive from justice to the nation from which he has fled, it has been claimed that it has a moral obligation to do so if it is consistent with its own Constitution and laws.

Only when created by a treaty does the legal obligation to request his extradition and the corresponding obligation to deliver him to the country making the request exist. As a result, a legal obligation only exists when there are treaties between the States. On the basis of the reciprocity principle, a State may extradite a criminal in rare circumstances. It is carried out only out of goodwill or kindness and not because the State is required to do so by law.

Famous extradition cases fought by India

i) Vijay Mallya Extradition case, [Contempt Petition (Civil), 421-424 of 2016]

The most well-known extradition case in India is Dr Vijay Mallya v. State Bank of India. He owed 17 Indian institutions, including the State Bank of India and the Indian Overseas Bank, a staggering debt of more than 6,000 crores. Mallaya escaped from India to the United Kingdom in 2016 due to his anticipated imprisonment. India requested his extradition in 2017. The Westminster Magistrate's Court in London heard the request for Mallya's extradition.

The Court demanded his extradition to India in 2018. Although his appeal at the London High Court was denied, he hasn't yet been returned to India because of ongoing legal proceedings. It's also important to note that, in accordance with the Fugitive Economic Offenders Act of 2018, he was designated as a "Fugitive Economic Offender" in 2019.

ii) Nirav Modi Extradition case, (Crl. M.C. 2696/2019)

Mr Nirav Modi sold expensive diamond jewellery. The Central Bureau of Investigation (CBI) received a complaint from the Punjab National Bank (PNB) in 2018 accusing Nirav and his wife Mrs Ami Modi of acquiring phoney Letters of Understanding (LoU) worth $11,400 crores through fraud. The funds were subsequently transferred to his fifteen fictitious foreign corporations. The Enforcement Directorate (ED) seized Nirav's assets in India after a CBI investigation. He left India and applied for asylum in the UK in 2018 saw the issuance of a Red Corner Notice by Interpol against him. An arrest warrant for Nirav was issued by a Westminster Court in response to an extradition request from India. In 2021, the Court mandated his extradition to India.

iii) Abu Salem Extradition Case, (Criminal Appeal No. 679 of 2015)

The renowned gangster Abu Salem is currently incarcerated on multiple life sentences for various offences. Salem was one of six people who were found guilty in 2017 of violating the Terrorist and Disruptive Activities (Prevention) Act and being accountable for the 1993 Mumbai blasts that resulted in 257 fatalities and 713 injuries. On Salem's petition, the High Court in Lisbon issued a ruling in September 2011 concluding that the filing of additional charges carrying the death penalty was a violation of the Indian commitment given to the Portuguese Government. The Central Bureau of Investigation's appeal was denied by the Portugal Supreme Court in 2012 (CBI). Later in 2012, the Portuguese Constitutional Court overturned the Portugal High Court's ruling and accused India of breaking the extradition pact.

India also referred to a decision of the Indian Supreme Court that blocked the further charges brought against Salem in its rebuttal. The Central Government was asked to advise the President to exercise his or her powers under Article 72 of the Constitution of India, which is titled "Power of President to grant pardons, etc., and to suspend, remit, or commute sentences in certain cases," in 2022.

The Supreme Court Bench, composed of Justices SK Kaul and MM Sunderesh, stated that India should uphold the commitment made to Portugal. The Court further stated that when Salem had served a total of 25 years in jail, the required paperwork should be forwarded within a month. The Central Government may also use Sections 432 and 433 of the Code of Criminal Procedure for this purpose (CrPC). The Government also stated that Salem's release would only be a consideration after serving a total of 25 years in prison, and that decision would be made in accordance with the applicable legal framework at that time.

iv) Daya Singh Lahoria v. Union of India, (Writ Petition (Crl.) 256 of 2000)

In the judgment given by the Apex court in the case of Daya Singh Lahoria v. Union of India,  it was stated that a fugitive criminal brought to India under an extradition treaty can only be tried for the offence provided in the extradition decree and not for any other offence. The Criminal courts in India cannot try such fugitives under any offence other than the one allowed for trial.

v) Dr. Ram Babu Saksena v. State, (1950 AIR 155)

Ram Babu Saxena v. State, The Indian Extradition Act of 1903 is cited first in this case under section 7. Dr Ram Babu Saxena was assigned to the Tonk State while working for the U.P. Civil Services.

Tonk, an Indian state, and the British government had an extradition agreement in which both States were required to extradite specific individuals who were charged with a specific set of offences. "The Extradition Treaty between the Tonk State and the British Government in 1869 is not capable of being given effect in the current day in light of the Tonk State's incorporation with the United State of Rajasthan," his lordship declared in conclusion. As no treaty exists, Section 18 of the Extradition Act has no application and as Section 7 of the Act has been complied with there is no ground upon which we can interfere. Thus, the Supreme Court dismissed the Appeal.

The Interface Between Asylum and Extradition

Starke stated,

"Asylum stops where extradition begins."

The term "asylum" refers to situations in which the territorial state refuses to turn over a person to the requesting state and instead offers the individual sanctuary and protection on its own soil. When an immigrant is not given customary hospitality, the action is referred to as extra-traditional. The idea of asylum has a long history, with States historically offering protection to aliens, but since the latter half of the 18th century, there has been a shift to include suspects or convicted criminals. Extradition and asylum are diametrically opposed and incompatible institutions.

Extradition occurs when a person is turned over by the territorial state to the requesting state; if the individual is protected and provided shelter instead of being turned over, this is referred to as asylum. Asylum is generally granted to political offenders, military offenders and religious offenders because they cannot be extradited.

The international human rights treaties, such as the conventions against terrorism and other transnational crime instruments, contain provisions and regulations requiring the extradition of people who are suspected of committing those crimes, but the states that have agreed to extradition must make sure that crimes are considered offences under the criminal code. No State Party shall expel, return, or extradite a person to another state where there are substantial reasons to believe that he would be in danger of being subjected to torture.

This is stated explicitly in Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment and Punishment of 1984. "Extradition shall not be granted nor shall return the person sought when there are grounds that she risks her life to be subjected to torture, cruel, inhuman or degrading treatment or to be tried by special courts or ad hoc in the requesting state," the Convention to Prevent and Punish Torture's Article 13(4) expressly states.

As a result, it can be said that asylum has always been and still is a barrier to extradition because it serves to protect people who are suspected of breaking the laws of a foreign country, whereas for most states extradition is a way to deliver people who have been charged with or convicted of a crime.

Conclusion

Criminals frequently use the absence of extradition agreements with other nations to their advantage when deciding which state to leave after committing crimes. The whole nature of crime has changed, and the party who has been injured sees the inability to bring fugitives to justice as a grave issue. However, a state is not generally required by international law to turn over runaway criminals. States are now more likely to employ this type of mutual legal aid to enforce their domestic criminal laws as a result of the increasing suspect mobility.

As previously explained, the right of a state to refuse extradition of its own citizens is protected by the principle of nonextradition; however, this issue also creates a space for a very dangerous opportunity where fugitives can use this principle, as well as the fact that some states are unwilling to grant extradition in the absence of a treaty. It is clear that the surrender procedure is very onerous and time-consuming, frequently taking years to complete, and, in some cases, they even result in failure.

This is true despite the vast statutory structure and operational machinery in place to extradite individuals from overseas to India. It goes without saying that it makes it possible for wanted felons who are accused of crimes in India to avoid capture and trial for years on end. The Ordinance is a positive beginning, but it is still unclear how effective it will be in the long run and whether it would persuade other countries to work with India to speed up the extradition process. On a global scale, crime is steadily rising.

The legislation of extradition aids in keeping the criminal from fleeing justice after committing the offence outside of the state of refuge. Every nation has its own rules governing extraction, and international laws have also made note of it. These laws are essential for deterrence and for upholding law and order around the world.

References

[1] Monika Kumari, Definition and Purpose of Extradition, Available Here

[2] Lawbhoomi, All About Extradition under International Law, Available Here

[3] Extradition As A Tool For Inter-State Cooperation: resolving issues about the obligation to extradite, Available Here

[4] Isha Agarwal, Extradition Under International Law–Aid For The Angst Of Fugitives, Available Here

[5] Obligation to Prosecute or Extradite, Available Here

[6] The obligation to extradite or prosecute (aut dedere aut judicare) - final report, 2014, Available Here

[7] Seema Jhingan and Monica Benjamin, India: Indian Extradition Law – Process for seeking extradition of persons from foreign states, Available Here

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