International Law has carved a niche for itself from Public International Law and the Law of Nations defining it as the set of rules, norms, and standards which are to be accepted generally for relations between Nations. These are standardized guidelines laid covering a broad range of classifications such as trade, war, human rights, etc. The commencement of International Law has provided more practical, stabled and consistent form of international relations. One of them is the Law on Extradition.
Extradition is a process by which a person accused or convicted of a crime is formally transferred to a State where he has to serve his trial. It may also be defined as a process by which one State upon the request of another State, surrenders to the latter State any person accused or convicted for an extradition offence committed either within its jurisdiction or outside its jurisdiction.
According to Oppenheim – Extradition is the delivery of an accused or convicted person by a country in whose territory he is found to the State where the offence is alleged to have been committed or where he was convicted.”
Section 2(c) of the Extradition Act 1962[1] defines “extradition offence” as an offence provided in the extradition treaty with the foreign States. This offence is punishable with imprisonment not less than one year in India or in that foreign State.
Extradition is usually carried out between two States when such treaties governing extradition are signed between two Nations. For example, the treaty signed between Albania and the United States in 1933 includes an inventory of more than two dozen crimes including that of murder, rape, arson and burglary. It has been observed that most of the extradition treaties include punishment for more than one year. Section 2(d) of Extradition Act 1962[2] defines an “Extradition Treaty”.
Section 2(f) of the Extradition Act 1962 defines ‘fugitive criminals’ who can only be extradited. Fugitive Criminal means a person who is accused or convicted of an extradition offence within the jurisdiction of a foreign State and includes a person who, while in India, conspires, attempts to commit or incites or participates as an accomplice in the commission of an extradition offence in a foreign State.[3]
However, extradition can be barred or refused to the requesting State in cases such as absence of treaty, alleged offence is not mentioned in the treaty signed, purely on the grounds of military and political offences, want of dual criminality and non-fulfillment of procedures given under the Extradition Act of 1962.
Extradition is actually not a very well established principle owing to the fact that it does not operate exclusively under the domain of International Law. It is considered to be dual in nature because it functions not only nationally but also internationally. All these decisions are taken by the Municipal Law of the State keeping in mind the International Law or the Law of the State relating to such subject. Yet they are constructed to abide by the following five principles.
The first principle of extradition is ‘The Principle of Double Criminality’ or ‘Dual Criminality’. This means that if a criminal has to be extradited from one country for breaking the law of another country, this will only be possible if such a law exists in both the countries or both the Nations must have entered into such a treaty of extradition. For example, if a country B has no law for Death Penalty and the other country has such a law then that person cannot be extradited or prosecuted for such an offence in country B where he has committed this offence. This basically means that if a criminal commits an offence in a country and flees from there to another country where such an offence is not punishable, he can escape or be saved from being prosecuted for such a crime. No liability will exist to arise on that criminal. In United States, this principle is essential because extradition will take place only if the alleged crime exists in both the States.
The second principle of extradition is ‘The Principle of Specialty’. In accordance with this principle, an individual who is to be extradited can be tried only for those offences which are expressly laid down in an extradition request. This helps in reviewing and ensuring that there is no overlapping of offences between the two States by guaranteeing punishment of similar offences that are punishable in both the States. A blanket is created wherein such offences are covered under the same umbrella. Such extradition can take place for crimes which are mentioned specifically in the requests only.
The third principle is ‘The Principle of Extraditable Offences’ which mean that extradition had to take place for offences which are mentioned in the treaty only.
The fourth principle states that a proper and specific prima facie case should be made against the person who is to be extradited in the requesting country.
And the last principle states that even an offender must be given a reasonable opportunity of a fair trial which is also a basic fundamental human right principle. This basic principle should be followed even where no extradition treaty exists in that State.
Amongst various international cases of extradition is the one of Julian Assange who was an Australian Programmer and an internet activist who published secret documents of the USA through his site WikiLeaks in 2010 but was taken asylum in the embassy of Ecuador in London since that time.
Edward Snowden was an American Computer whiz who was employed with CIA and blowed this by leaking classified information about global surveillance programs used by US in collaboration with NASA, European Government bodies and private companies. He was then sent into asylum by Russia on a temporary basis.
Roman Polanski who was the French Polish Oscar winning film director of ‘The Pianist’ was pleaded guilty of the unlawful sexual intercourse with a minor girl in US. He fled to countries like France, Switzerland and Poland but remains a fugitive till date.
In India, the two most wanted fugitives are Vijay Mallya who was declared to be bankrupt after his Kingfisher Airlines crashed in the market. He still owes a debt of Rs. 9,000 crores and left the country for London, and Neerav Modi who fled the country after the PNB scam. The Indian fugitives who evaded extraditions are Sheetal Mafatlal, Dawood Ibrahim and Nadeem Akhtar Saifi.
However, India has brought back few of its fugitives in the last 5 years such as Jagtar Singh Tara, Abdul Wahid Siddibapa, Abubakr Kadir Lonut Alexandru, Marinoiu Mohd Faroog Yasin, etc. among few of them.
[1] https://indiankanoon.org/doc/1070872/
[2] Ibid.
[3] Ibid.
Author: Shubhi Dhiman,
School of Law, UPES Dehradun; 3rd year
