India’s Extradition Policy: Legal challenges and Developments

Author- I Sharan, Christ deemed to be University, Bangalore

Edited by- Masooma Naqvi, Amity University, Lucknow

  1. INTRODUCTION

Extradition means the process of handing over a fugitive criminal to the requesting state for the offences they have committed in that Country. Extradition is based on the bilateral relationship between two countries. The countries enter into a treaty or agreement for the extradition of criminals. Extradition process is initiated by the requesting state through its diplomat or the representative of the other state in the country. Countries try their best to maintain good relations with other nations in order to extradite fugitives back to their nation. Extradition can be affected by other factors like human rights, diplomacy etc… The nations sometimes try to maintain their reputation and refuse to hand out their nationals to other countries. This article tries to analyse in detail what extradition means, the extradition process in India, the nations with which India has extradition agreements and treaties, the challenges faced by the Government in the smooth functioning of these procedures and the developments required in this field. The article also discusses how India faces issues in extraditing fugitives to India due to human rights issues. The article discusses how bilateral agreements, clauses of agreements and delays in investigation serve as the main challenges for extraditing a fugitive to India. After analysing these aspects the article concludes by stating how India needs to improve its stance in relation to extradition treaties and agreements as the number of fugitives who have being returned to India are comparatively less.

Keywords (Minimum 5):  Extradition, treaty, Bilateral relationship, External Affairs, Foreign state.

  1. Meaning, Definition & Explanation

The Black’s Law Dictionary explains extradition as “The surrender by one state to another of an individual accused or convicted of an offense outside its own territory and within the territorial jurisdiction of the other, which, being competent to try and punish him, demands the surrender.”[1] The Extradition Act 1962 explains the extradition treaty as a treaty signed by India with a foreign nation relating to the extradition of fugitive criminals.

  1. Types / Kinds

There are two types of extradition policies. A nation can either have an extradition treaty or an agreement with other countries. A treaty is binding, unlike an agreement. A treaty creates a legal obligation on the other party while an agreement does not legally bind the other party to perform their duties and responsibilities.

 

  1. Comparison with other Countries

India as a developing country has an exceptional number of extradition treaties with foreign nations.

India has extradition treaties with 48 world nations. They are Australia, Azerbaijan, Afghanistan, Bahrain, Bangladesh, Belarus, Belgium, Bhutan, Brazil, Bulgaria, Canada, Chile, Egypt, France, Germany, Hong Kong, Indonesia, Iran, Israel, Kuwait, Lithuania, Malaysia, Malawi, Mauritius, Mexico, Mongolia, Nepal, Netherlands, Oman, Philippines, Poland, Portugal, Russia, Saudi Arabia, South Africa, South Korea, Spain, Switzerland, Tajikistan, Thailand, Tunisia, Turkey, UAE, UK, Ukraine, USA, Uzbekistan, Vietnam. India also has extradition treaties with 12 world nations like Antigua & Barbuda, Armenia, Croatia, Fiji, Italy, Papua New Guinea, Peru, Singapore, Sri Lanka, Sweden, Tanzania and New Zealand.[2]

  1. Legal Provisions and Procedures to extradite a person under the Extradition Act, 1962

The Extradition Act of 1962 governs the procedure for the extradition of a fugitive offender. Consequently, the Diplomat of a Foreign State or its State Government shall request the Central Government through its International Representative in that State or may make any other contact which suits the requirements of both parties. After the request is made, the Central Government shall examine it. If it finds the request fit, the Central Government shall issue an order to the Magistrate having jurisdiction to inquire into the case under his authority. The Magistrate on receiving an order from the Central Government, shall issue a warrant for the arrest of the fugitive. When the fugitive appears or is produced before the Court, the Magistrate shall also inquire into the case and shall have power and quantity of jurisdiction to inquire into the case as it is to be heard in the Sessions or High Court. The magistrate shall without prejudice look into the matter and the evidence produced by the requesting State and the fugitive criminal. If the magistrate believes that a prima facie case is not made in support of the requesting foreign state, he shall discharge the fugitive criminal. If the magistrate believes that the case is made in support of the requesting foreign state, he shall commit the fugitive to prison and await the orders of the Central Government.[3] The Central Government after receiving the report of the magistrate, thinks that the fugitive is to be surrendered to the foreign state, it shall issue a warrant for the custody of the criminal and for his delivery at a place and to a person as mentioned in the warrant. [4]

To request the surrender and return of convicted persons to India from foreign states, the Central Government shall request the diplomatic representative of the State or to the Government of that State through the diplomatic representative of India.[5]

  1. Challenges
  • Clauses of the agreements:

The agreements entered into by India with other nations often become a challenge in the process of extradition for India. The old treaties which India had with Chile, Netherlands, Chile and Switzerland were list-based which means that a person can be surrendered for the offences mentioned in this list.  Later on, the dual criminalisation approach was followed, according to which a fugitive criminal would be surrendered if the offence committed is a crime in both countries. Dual criminality is most convenient as the Nations are not to renegotiate their lists of crimes as a new offence emerges. However, dual criminality has its own disadvantages as India’s social and cultural practices are different from other countries. For example, a person who has taken refuge in another nation cannot be brought to trial for offences relating to dowry harassment. Extraditions are not provided to persons accused of political crimes, where the death penalty might be imposed or where there are chances of double jeopardy. Challenges to extradition can be raised even outside the treaty terms. These challenges are mostly related to human rights. In Soering v United Kingdom, the European Court of Human Rights gave a landmark judgement, equating poor prison conditions to torture and inhuman or degrading treatment. Many extradition requests of India have been rejected because the prisons in India are in poor condition. [6]

  • Delay in investigation and related procedures:

To initiate an extradition process, a request is to be sent through the diplomats. The reports regarding the investigation conducted by the State/Central Government, translation if required along with the charges filed, witness testimonies, arrest warrants and other documents are sent to the foreign state. There are chances of fabrication of documents, delays in investigation, and incorrect format of affidavit which can affect the process of extradition. [7]

  • Diplomacy and bilateral relations:

 Extradition also depends on the relationship India maintains with other nations. When a request is made for extradition, the foreign state is supposed to look into it and take the necessary procedures required and, also appear on behalf of the Indian government in the Court. If there is no good relationship between the nations, they will not put enough effort to look into the matter, a consequence of which the case will remain pending. [8] This shows how important it is for a nation to maintain good relations with other nations.

  1. Developments:

India has come a long way since extradition was introduced in India by the British in 1880. India, which followed the list-based approach of the extradition treaty has now started following the dual criminality approach of the extradition treaty which is much more convenient and takes into consideration a large number of offences. India has also tried to maintain good relationships with foreign states and has great credibility among other nations. This would serve as leverage for India to get extradition procedures done in a short period. India is also trying to create extradition treaties with many more nations.

7.CONCLUSION & COMMENTS

India, though a respected and highly credible nation faces a lot of issues in bringing back the fugitive criminals who have escaped trial from India. India has faced a lot of criticism regarding the poor condition of prisons, custodial deaths and tortures; which have been a great obstacle in getting back fugitives back to India. India has a weak extradition system. It has to strengthen its relationship with foreign states and create extradition treaties which help the government to bring back fugitive criminals.

[1]  BLACK’S LAW DICTIONARY https://www.latestlaws.com/wp-content/uploads/2015/04/Blacks-Law-Dictionery.pdf#pagemode=thumbs Page 689 ( accessed on 12th June 2024)

[2] https://www.mea.gov.in/leta.htm (Accessed on 12th June 2024)

[3] Extradition Act, 1962 § 7

[4] Extradition Act, 1962 § 8

[5] Extradition Act, 1962 § 11

[6] Aarshi Tirkey, “India’s Challenges in Extraditing Fugitives from Foreign Countries”, Issue Brief

No. 270, November 2018, Observer Research Foundation.

[7] Aarshi Tirkey, “India’s Challenges in Extraditing Fugitives from Foreign Countries”, Issue Brief

No. 270, November 2018, Observer Research Foundation.

[8] Aarshi Tirkey, “India’s Challenges in Extraditing Fugitives from Foreign Countries”, Issue Brief

No. 270, November 2018, Observer Research Foundation.

8. REFERENCES

    1. https://www.mea.gov.in/leta.htm
    2. Extradition Act, 1962
    3. Aarshi Tirkey, “India’s Challenges in Extraditing Fugitives from Foreign Countries”, Issue Brief

No. 270, November 2018, Observer Research Foundation.

  1. https://www.legalserviceindia.com/legal/article-1428-extradition-to-and-from-india-a-detailed-analysis-on-its-provisions-and-challenges.html
  2. https://www.jlsrjournal.in/extradition-law-in-india-an-analysis-by-avani-jajot/
  3. BLACK’S LAW DICTIONARY https://www.latestlaws.com/wp-content/uploads/2015/04/Blacks-Law Dictionery.pdf#pagemode=thumbs