Extradition : An overview.

Extradition, when an individual is returned to another nation to be tried or punished for crimes committed. It is a legal and judicial process that involves the physical transfer of custody of the individual to the legal authority of the requesting jurisdiction. 

Principle of Reciprocity - Every favour, respect, reward, or punishment one country grants to its inhabitants or legal residents must be reciprocated (repaid) similarly.

Principle of Double Criminality - The extradition of the suspect or convicted person must also constitute a crime in the territorial state. It implies that the fugitive’s actions must be illegal in both the seeking and territorial states.

Principle of Double Jeopardy - A Person who has already been prosecuted and sentenced for the same crime and cannot be extradited again. Except for the expired period of punishment, no offender tried and convicted once may be extradited for the same offence

Principle of Speciality - The extradited offender may only be tried or punished for the crime for which he was extradited by the requesting state.

 

Extraditable persons

The suspects or criminal defendants must not fall into one of the following three categories to be extraditable.

Territorial state’s own nationals - Most countries assert their right to exercise State sovereignty over their citizens, even though the crime was committed in another country, and refuse to extradite their own citizens accused of committing a crime in the other country.

 

Political offenders - The fact that many nations refuse to extradite political offenders is one of the most contentious aspects of extradition.

 

Persons already punished  - Most nations uphold the principle of double jeopardy and decline to extradite individuals who have already been convicted and sentenced for the same crime for which extradition was demanded.

 

Extraditable crimes

 

The principle of double criminality is used to establish which crimes are extraditable, which requires that the fugitive’s actions be crimes in both the territorial state and the state making the request. In general, most crimes stated in the extradition agreement between the two states are extraditable, except for the following offences.

 

Religious offence - contempt for religion are not extraditable

Military Offences - Like deserting, refusing to follow orders from higher officials, etc., are not extraditable.

 

o    The Extradition Act of 1962 governs the extradition of an accused or convicted (fugitive) in India. 48 nations presently have extradition agreements with India.

o    India has extradition arrangements with 12 countries: Fiji, Italy, Peru, Singapore, Sri Lanka, Antigua & Barbuda, New Zealand, Croatia, Armenia, Sweden, Papua New Guinea and Tanzania

o    The extradition procedure, terms, and conditions are governed by the Extradition Act and any applicable bilateral treaties, agreements, and international covenants.

o    The Extradition Act allows for either the extradition of fugitive offenders from foreign jurisdictions with extradition agreements or treaties with India or the extradition of fugitive criminals to foreign states.

o    The Extradition Act governs the extradition procedure for foreign nations without formal extradition agreements or treaties with India.

o    The “Guidelines on Mutual Legal Assistance in Criminal Matters” which describes the policies and procedures for making an extradition request, is released by the Ministry of External Affairs (MEA).

 

Procedure for Extradition from India

The process for the extradition of a fugitive criminal from India begins when the request of a wanted criminal from India is sent.

The fugitive is sent to the Ministry of External Affairs (MEA) Consular, Passport and Visa (CPV) Division through diplomatic channels along with the necessary supporting documentation (GOI).

The Magistrate of Extradition (often a Magistrate of First Class) must issue an arrest warrant as soon as the GOI receives it.

Based on his detailed assessment, the magistrate issued the warrant for the subject’s arrest.

 

Procedure for Extradition to India

o    When the Consular, Passport and Visa (CPV) Division of the Ministry of External Affairs (MEA), GOI receives a request from the legally qualified Magistrate in India following the establishment of a case against the fugitive, process for that criminal to India from the territorial state officially commences.

o    The magistrate sends the request with pertinent documentation and an open-dated arrest warrant.

o    An inquiry magistrate receives the request after it has been duly transmitted to the territorial state through diplomatic channels.

 

Restrictions on Surrender Under Indian Law

According to Section 31 of the Act, a fugitive is not required to surrender under the following conditions:  Is of a political nature, is time-barred; If there is no clause specifying that the extradited person cannot be tried, If he has been charged with an offence in India other than the one for which extradition is being sought, and until fifteen days have passed since the date the magistrate committed him to prison.

 

Vinayak Damodar Savarkar 1910- Britain to India 1910 aboard the ship Morea in preparation for his treason and murder trial (Emperor v. Vinayak Damodar Savarkar (1910)).

 

Abu Salem Extradition Case - He was part of the 1993 Bombay blasts. They were accused of murder, extortion, narcotics trafficking, money laundering, and other crimes, accused in the 1993 Mumbai Serial Blasts case. In 2007, extradition agreements between India and Portugal were signed, and Abu Salem was sent to India. His writ case under Article 32 was denied by the Supreme Court of India in January 2021. In July 2022, the Supreme Court held that Abu Salem's life sentence be commuted to 25 years, and he should be released by November 2030.

 

Vijay Mallya Extradition - non-payment of loan (Rs 60000 crore) Vijay Mallya ran away to London, United Kingdom, in 2016., accused under The Fugitive Economic Offenders Act, 2018 by the Indian government. Mr Mallya was the first to be designated a “Fugitive Economic Offender.” India requested the extradition of Mallya from the UK in 2017, which was granted.

 

Nirav Modi Extradition case - 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 fake Letters of Understanding (Lou) worth $11,400 crores through fraud. Interpol issued a Red Corner Notice on him for money laundering in June 2018. He has not, however, been sent to India while some court proceedings are ongoing, and he has not used up all of his legal options in the UK.

 

Extradition case of Surjit Badesha and Malkit Kaur Sidhu - abduction and murder of Jaswinder Kaur Sidhu (Canada citizens). Surjit Badesha and Malkit Kaur were found guilty and extradited to India in 2019.

 

Extradition of Kishan Singh - Obtained British citizenship in 2015. He participated actively in the global drug cartel. He sold drugs, including narcotics, in various nations, including the UK and India. With the assistance of the Indian athlete Harpreet Singh and others, he managed this supply chain. He was extradited to India.

The United Nations Model Treaty on Extradition (1990) - Analysis of the requirements and challenges managed nations face during extradition procedures. It contains 18 Articles.

The United Nations Model Law on Extradition (2004) - to improve global cooperation According to Sections 5 and 6 of the Model Law, extradition shall not be allowed if, in the opinion of the territorial State, the extradition is requested for torturing or punishing the fugitive based on his caste, ethnic origin, race, etc.