The Hon’ble 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.” Extradition requests can be generated in the instances of under-investigation, under-trial and convicted criminals. Extradition in any country depends on its extradition policies and its relationships with other countries in the form of extradition treaties and arrangements.

 

Emergence of the Extradition Act of 1962

 

The Extradition Act, 1870 of the United Kingdom enabled extradition of fugitive criminals from and to other countries outside British dominions and the section 17 clarified that these dominions include Commonwealth countries like India. While the Fugitive Offenders Act, 1881 of United Kingdom emphasized on extradition of fugitive criminals from and to countries within British possessions such as India. The Indian Extradition Act, 1903 that laid down the procedure to be followed in the country in cases of extradition with other countries was highly based on the application of the above two British statutes to India. Furthermore, British India entered into extradition treaties with many Princely States.[2]

 

Post-independence the country faced several problems with regards to extradition. For example, the existence of extradition treaties between British India and Princely States was questioned and if in the case they were not operational then what law was going to prevail in these states. In Dr. Ram Babu Saksena v. The State[3] the court discussed how far the treaty between India and the State of Tonk (one of the Princely States located in Rajasthan) got affected through the merger of the state into India. Court eventually held that the treaty must be deemed ineffective.

 

On January 26, 1950 as India proclaimed itself as a sovereign democratic republic the need of extradition treaties with Princely States vanished and they were considered Part B states. Indian Extradition Act was made applicable to the entirety of India to the exception of the Part B states as it was deliberated that this should be enabled by a separate law after clarifying the position. After the judgment of The State of Madras v. C. G. Menon[4] which held the Fugitive Offenders Act of 1881 inapplicable in India, there was a lot of gap felt in the extradition policies. Firstly, extradition process to Commonwealth countries was not finalized and secondly extradition process from Part B States to other foreign countries including Commonwealth countries was again doubtful and unclear. These concerns led the country to develop and work towards a code and a legislation which tackled the matter of extradition effectively on a large scale.

 

The Extradition Act of 1962 was legislated under these conditions and today it is the primary document that deals with matters of extradition for India. It consists of five chapters and a Schedule. Chapter I deals with preliminary matters, chapter II deals with extradition of fugitive criminals to foreign state with no treaty or arrangement and III deals with extradition to foreign states with existing treaties and arrangements. While chapter IV has to do with extradition of accused or convicted persons from foreign states and chapter V is concerned 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.[5] The act was substantially amended in 1993.

 

Extradition in Code of Criminal Procedure, 1973

 

The Code of Criminal Procedure which is the primary legislation on procedure of administration of substantive criminal law in India has laid down few sections that guide the respective authorities to deal with the process of extradition. There are four such sections – 41, 166A, 166B, 188.

 

Section 41(1) of the Code of Criminal Procedure of 1973 deals with instances when police may arrest any person without an order from 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 punishable as an offence then police has a right to detain or arrest such an individual without a warrant.

 

Section 166A of the Code of Criminal Procedure of 1973 is concerned with the letter of request to a competent authority for investigation in a country outside India. The section provides that if during the course of 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 in this behalf and such requests are limited and bound to the existing treaty, if any, between India and the country concerned.

 

Section 166B of the Code of Criminal Procedure of 1973 is concerned with the letter of 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 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 who in turn will channel it to the Court or authority from the other country which 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 deals with 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 Treaties and Arrangements

 

Section 2(d) of the Extradition Act of 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 yet most of these embody five principles.

First, the principles of extraditable offences emphasizes that extradition can be done for only those offences which are mentioned in the treaty. Second, the principle of dual criminality 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, the requested country must be satisfied that there is a prima facie case made out against the accused. Fourth, the rule of specialty requires that the extradited person must be proceeded against the same offence for which he was extradited in the first place. Lastly, extradited person must be given a fair trial.[6]

 

India can make an extradition request to any country while the acceptance of such a request depends on the existence of a treaty with that particular country. The countries which have a treaty with India have an obligation to consider our requests while countries which do not can consider too but it all depends on their domestic laws and procedures. Similarly, any country can make an extradition request to India and again India’s acceptance depends on the existence of a treaty. Section 3(4) of the Indian Extradition Act, 1962 is the legal basis for extradition with States with whom India does not have an extradition treaty.

 

As of today, India has Extradition Treaties in force with 43 countries. In 2013, India established extradition treaties with Thailand, Bangladesh and Azerbaijan. India has some form of Extradition Arrangements too with 11 countries. In 2019, India established extradition arrangement with Armenia.[7]

 

Extradition Challenges to India

 

There are various legal and non-legal extradition challenges faced by India that create obstacles and delays to the successful return of fugitive criminals from foreign states. There are several challenges arising within and without Extradition Treaties for India and some of them are discussed below.

 

Earlier extradition treaties, like that of Belgium (1901) and Chile (1897) with India, contained an exhaustive list of offences for which offenders will be extradited but now the “dual criminality” approach is followed. It essentially requires the offence to be accepted and criminalized by both nations. Even though it is a more convenient process and can include even more and newer offences like that of cybercrime, it poses several challenges for India. Socio-cultural centric offence such as dowry harassment which is dominant in a country like ours is not considered or accepted as a serious offence in some other country. [8]

 

One more principle which has its pros and cons is “double jeopardy” which debars punishment for the same crime twice but has been the biggest challenge for India in recent times. David Headley, the master mind behind the 26/11 Mumbai attacks, has already been imprisoned in U.S. for killing 6 Americans and hence could not be extradited to India where he would have been tried for killing nearly 140 Indians.

 

Another treaty clause “rule of specialty” has turned out to be detrimental for our country. It requires that the accused when extradited can only be tried for the offences he was accused at the time of extradition. When Abu Salem from Portugal returned, the enforcement agencies framed additional charges which was heavily criticized by the Supreme Court in Lisbon and termed as violation of extradition rules.

 

Sometimes the challenges lie beyond treaty restrictions as that in cases where concerns of human rights violations are highlighted. For example, United Kingdom has rejected requests in the past owing to human rights concerns such as that of possibility of receiving torture, inhuman and degrading treatment. In 1996, the European Court of Human Rights prohibited the deportation of a Sikh Separatist, Karamjit Singh Chahal, to India on the possibility of misconduct by Punjab Police. Again, in 2017 British courts rejected extradition of the alleged bookie Sanjeev Kumar Chawla owing to poor conditions of Delhi’s Tihar Jail. Similarly, Neils Holck, accused in the Purulia arms drops case, was not extradited by Netherlands to India due to prison conditions. Now, this human right concern is being misused by accused fugitives outside India to avoid completion of extraditions. Vijay Mallya’s lawyers in U.K. courts argued that the condition of Arthur Road Jail, Mumbai is inhuman and degrading.

 

Furthermore, 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 legal system.

 

Conclusion

 

Apart from loopholes in treaties, as one may call them, there are several other factors which slow down the process of extradition for any country. There are unreasonable procedural delays due to extensive compulsory documentary and evidentiary requirements and also the burden of bilateral relations and pressure of domestic politics.