UILS, Panjab University
UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY, CHANDIGARH
EXTRADITION
A project report submitted as a part of internal assessment of the course B.Com. LL.B.
(Hons.) in the subject of PUBLIC INTERNATIONAL LAW for the session 2022-23.
SUBMITTED TO:
Dr. Gurpreet Kaur
SUBMITTED BY:
Mehak
263/19
B.Com. LL.B. (Hons.)
Section E
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ACKNOWLEDGEMENT
The detailed project on the topic of “Extradition” would not have been possible without the
kind support and help of many individuals. I would like to extend my gratitude to all of them.
I am highly indebted to Dr. Gurpreet Kaur for her guidance and constant help as well as for
providing necessary information regarding the project and also for her support in completing
the project.
I would also like to express my gratitude to my parents and friends for their kind cooperation
and encouragement which helped me in completion of this project.
A sincere thanks to all of them.
-MEHAK
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INDEX
INTRODUCTION................................................................................................................... 4
PRINCIPLES GOVERNING EXTRADITION.................................................................... 6
1. NON-EXTRADITION OF POLITICAL CRIMINALS ........................................... 6
2. PRINCIPLE OF DUAL CRIMINALITY .................................................................. 8
3. PRINCIPLE OF SPECIALITY .................................................................................. 8
4. MILITARY OFFENCES ............................................................................................. 9
5. SURRENDER AFTER HIS TRIAL FOR OFFENCES COMMITTED IN HIS
OWN STATE ....................................................................................................................... 9
POSITION IN INDIA .............................................................................................................. 9
EXTRADITION TREATY ................................................................................................... 10
SOME IMPORTANT CASES .............................................................................................. 12
❖
SAVARKAR’s CASE: ............................................................................................ 12
❖
VIJAY MALLYA’s CASE: .................................................................................... 12
❖
ABU SALEM’s CASE: ........................................................................................... 14
CONCLUSION ...................................................................................................................... 16
REFERENCES....................................................................................................................... 17
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INTRODUCTION
International extradition is the surrender by one nation to another, for trial and punishment,
of person accused or convicted of an offence within the jurisdiction of the latter. A request
for extradition is generally initiated against a fugitive criminal, who is formally accused of,
or is charged with, or is convicted of an extradition sentence.
Extradition is a system consisting of several processes whereby one sovereign, surrenders to
another sovereign, an individual sought after as an accused, criminal or fugitive offender.
This delivery of individuals to the requesting sovereign is based on treaties and/or bilateral
arrangements; however, sometimes this delivery of individuals occurs by reciprocity and
comity as a matter of courtesy and goodwill between the sovereigns. World public order is
the recurring theme based on which extradition is practiced by the States. [Abu Salem
Abdul Qayyum Ansari v. CBI & Another1]
In Oppenheim’s International Law, the expression extradition has been defined as follows:
Extradition is the delivery of an accused or a convicted individual to the State where he/she
is accused of or has been convicted of a crime, by the State on whose territory he/she happens
for the time to be.
According to Black’s Law Dictionary, extradition means:
The surrender by one State or Country to another of an individual accused or convicted of
an offence outside its own territory and within the territorial jurisdiction of the other, which,
being competent to try and punish him, demands the surrender.
Thus, in nutshell, extraditionmay be defined as: the act of sending, by authority of law, a
person accused of a crime to a foreign jurisdiction where the crime was committed, in order
that he may be tried there.
The Supreme Court of India, in the case of, State of West Bengal v. Jugal Kishore2, defined
extradition as the surrender by one State to another of a person desired to be dealt with for
crimes of which he has been accused or convicted and which are justiciable in the courts of
the other state.
1
2
(2013) 7 SCR 1061
(AIR 1969 SC 1171)
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Law relating to extradition in India is governed by the Extradition Act, 1962 and the
Extradition Treaties obtaining between India and other countries. By virtue of Section 34 of
the 1962 Act, the Extradition Act of 1962 has extra-territorial jurisdiction, that is, an
extradition offence committed by any person in a Foreign State shall be deemed to have been
committed in India and such person shall be liable to be prosecuted in India for such offence.
As per Section 216 of the Indian Penal Code, 1860 read with the Constitution of India,
1950 (Schedule VII, List I, Item 18), extradition may be defined as, the action of giving up
a fugitive criminal to the authorities of the State in which the crime was committed.
In the case of Daya Singh Lahoria v. Union of India3, Supreme Court of India, expatiating
over the importance of extradition law, stated the following, in authoritative terms:
Extradition is a great step towards international cooperation in the suppression of crime.
It is for this reason that the Congress of Comparative Law at Hague in 1932, resolved that
States should treat extradition as an obligation resulting from the international solidarity in
the fight against crime.
Some important definitions according to Model Law on Extradition by United Nations
Office on Drugs and Crime are:
“Extradition” means the surrender of any person who is sought by the requesting State for
criminal prosecution for an extraditable offence or for the imposition or enforcement of a
sentence in respect of such an offence.
“Requesting State” means a State which requests of country adopting the law the
extradition of a person or the provisional arrest of a person with a view to extradition.
“Receiving State” means a State to which a person is to be extradited from a third State
through the territory of country adopting the law.
“Transferring State” means a State from which a person is being extradited to a third State
(receiving State) through the territory of country adopting the law.
“Extradition treaty” means a bilateral treaty concluded between country adopting the law
and a foreign country, or a multilateral treaty to which country adopting the law is a Party,
which contains provisions governing extradition of persons who are present in the territory
of country adopting the law.
“A person sought” means a person whose extradition or provisional arrest with a view to
extradition is requested by means of submitting a relevant request to the competent
3
2001 (4) SC 516
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authorities of country adopting the law.
“Transferee” means a person transferred through the territory of country adopting the law
while being extradited from a third State (transferring State) to the receiving one.
PRINCIPLES GOVERNING EXTRADITION
1. NON-EXTRADITION OF POLITICAL CRIMINALS
It is a very important principle of International Law that extradition for political crimes is
not allowed. “Most States refuse to commit themselves to extradite any person charged with
‘political crimes’ that is to say crime committed for political purposes or crimes that are for
political purposes or crimes that are politically motivated. The difficulty of applying political
exception is obviously a problem that regularly plagues the courts.” The practice of nonextradition for Political crimes began with the French Revolution of 1789. Later on, other
States also subscribed to this view. In the present period, almost all the States subscribe to
this view although many difficulties arise in the enforcement of this principle. The most
difficult problem is of the definition of the term political crimes. “Although the principle is
now widely accepted that the political criminals should not be extradited, there is probably
no rule of customary international law which prevents their extradition. However, serious
difficulties exist concerning the concept of political crimes.
Despite its universality, no statute or treaty has attempted to positively define the term
“Political Offence” and offence of political character. In the absence of internally accepted
definition the courts and legal writers tend to categorize the political offence into:
❖ Pure Political Offence:
A Pure Political Offence is one that is exclusively aimed at the state or against political
interest, without injuring private persons, property or interest and not accompanied by the
commission of common crime. Such offences are directly aimed at the government and
have none of the elements of ordinary crimes. They include treason, sedition, espionage.
Treason, sedition and espionage are offences directed against state itself and are therefore,
by definition, a threat to existence, welfare and security of that entity, and as such, they are
purely political offences.
❖ Relative Political Offence:
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The Relative Political offence can be an extension of the purely political offence, when in
conjunction with the latter, a common crime is also committed or when without committing
a purely political offence, the offender commits a common crime prompted by ideological
motives.
Each circumstance has to be judged in case of such crimes to see, whether the nexus
between the crime and the political act is sufficiently close, the political exception clause
in the treaty can be legitimately invoked. The relative political crimes, frequently being
violent and including common criminal conduct, create problems when their perpetrator
argue for absolution on the grounds of their political motives.
Whether or not a relative offence has political consequences will often depend on the
proximity of the offence to the political objective sought. There is no fixed rule as to what
degree of proximity is required.
The courts in Britain have tried to lay down the tests in Re Castioni Case4. The applicant
Castioni was in proceedings for habeas corpus, he was a Swiss Citizen of Canton of Ticino,
large number of citizens of his Canton had for some time been dissatisfied with its government
and feeling finally erupted into a large-scale armed attack on a government building. Castioni
was one of the leaders of the uprising who, after breaking into the building with the others shot
a member of the government who was standing inside. There was no evidence of private grudge
between Castioni and the deceased, in fact, the evidence suggested that they had never met
before. A more obvious case of a political offence could hardly be imagined. At all event the
case has been regarded by later courts as connecting the concept of political offence with overt
acts in the course of some kind of political disturbance or conflict between different parties
contending for powering a state.
In another case Re-Menuier5, Meunier was an anarchist who escaped to England from France,
where he had perpetrated two bomb outrages one in a crowded café and another at army
barracks. A divisional court on habeas corpus rejected the submission that the facts disclosed
an offence of a political nature, Cave J. stated:
“It appears to me that, in order to constitute an offence of a political character, there must be
two or more parties in the state, each seeking to impose the government of their own choice on
4
5
(1891), QB 149
(1894) 2 QB 415
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the other, and that, if the offence is committed by one side or on the other in pursuance of that
object, it is a Political Offence, otherwise not”.
But in Rex V. Kolozynski case6, the British court did not follow the restrictive definitions
given in these two judgments, but extended the definition of Political Offences by saying. “The
words, offence of political characters’ must always be considered according to the
circumstances existing at the time when they have to be considered. The present time is very
different from 1890 when Castioni’s case was decided.”
This judgment has been favourably accepted by many scholars and accordingly, now not only
offences committed to over throw a government, but also attempt to suppress or prosecute
persons holding different political opinion, is considered as Political offence.
2. PRINCIPLE OF DUAL CRIMINALITY
This is the most important principle governing Extradition Law. This requires that the offence
that the fugitive is alleged to have committed, should be an offence both in the requesting as
well as the requested state.
For instance: In Quattrocchi's case - the request for extradition was declined as the CBI had
not filed the requisite documents making out a specific case for extradition and had not satisfied
the court as to the basic requirement of 'dual criminality'. To satisfy oneself as to the
requirement of dual criminality, one has to examine the treaty between the two countries and
see if the offence in question finds mention there.
3. PRINCIPLE OF SPECIALITY
An extradited individual can be tried only for offences specified in the extradition request;
the object of this principle is to prevent blanket extradition requests. The requesting State
pledges to judge the requested person only for the crime for which extradition was requested,
and not for any other offence. As a matter of fact, post the surrender of a fugitive offender,
he/she can expressly waive the rule of specialty, and can be tried for offences in addition to,
or in furtherance of the offences qua which he/she was surrendered. Moreover, in certain
cases, the requested State can agree to the fugitive offender being tried for other offences, in
addition to offences apropos which the fugitive offender was surrendered to the requesting
State.
6
(1955) 1 QB 540
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4. MILITARY OFFENCES
Military offences, e.g., desertion, and religious offences are also generally not subject to
extradition proceedings. The rule is that extradition is not allowed for trifling cases, and the
States ensure that only serious crimes do not go unpunished.
5. SURRENDER AFTER HIS TRIAL FOR OFFENCES COMMITTED
IN HIS OWN STATE
A fugitive criminal who has been accused of some offence not being the offence for which
his surrender is asked shall not be surrendered until after he has been tried and has served
his sentence for the offence committed in the State requested to surrender.
POSITION IN INDIA
In India the extradition of a fugitive from India to a foreign country or vice -versa is
governed by the provisions of Indian Extradition Act, 1962. The basis of extradition could
be a treaty between India and a foreign country. The Government of India presently has
bilateral Extradition Treaties with forty-two countries and Extradition Arrangements with
nine more countries to quicken and ease the process of extradition. The basis of extradition
could be a treaty between India and a foreign country and in absence of a treaty, an
arrangement for extradition. Under Section 3 of the Act, a notification could be issued by
the Government of India extending the provisions of the Act to the country/ countries
notified.
Where there exists an Extradition Treaty between the concerned countriesthe extradition request has to be in terms of the specific requirements therein. In terms of
the Comprehensive Guidelines for Investigation Abroad and Issue of Letters Rogatory
(LRs) issued by the Ministry of Home Affairs, extradition requests are made only after
the filing of a charge sheet, cognisance of the same and issuance of an arrest warrant. If
the accused is to be arrested and produced in the courts of India, the requisite action is
through the extradition process.
Thus, after the Investigative Agency has filed the charge sheet, if the Magistrate takes
cognisance of the same, issuing orders/directions justifying the committal of the accused
to trial and seeking the presence of the accused to face trial, the request for extradition
would be made to the Ministry of External Affairs. In passing such a warrant for the
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apprehension of the accused, the Magistrate will be governed by the considerations
indicated hereinabove.
The request is in the form of a self-contained affidavit by the Magistrate, making out
a prima facie case against the accused. To make out a prima facie case, the affidavit is
required to provide brief facts and a history of the case with reference to the statements of
witnesses and relevant documentary evidence, provisions of law invoked and the
description of the accused, establishing his identity. It is necessary to specify the offences
for which the accused is charged and the provisions of law indicating the maximum
sentence thereof.
Denial for extradition by requested stateAn alleged offender may not be extradited to the requesting State in the absence of a treaty.
The States are not obligated to extradite aliens/nationals, or where the crime is not
identified as an extraditable offence in the treaty. Extradition may be denied for purely
military and political offences. Terrorist offences and violent crimes are excluded from
the definition of political offences for the purposes of extradition treaties. In cases where
dual criminality exists, where the conduct constituting the offence amounts to a criminal
offence in both the requesting country and the foreign country, the offence may be tried
in either country depending on factors such as territory where the offence w as committed
as well as the nationality of the accused.
Extradition may be denied where due procedure under the Extradition Act of 1962 is not
followed.
EXTRADITION TREATY
Section 2(d) of the Indian Extradition Act 1962 defines an “Extradition Treaty” as a Treaty,
Arrangement/ Agreement made by India with a foreign state relating to the extradition of
fugitive criminals. Traditionally speaking, most of the extradition treaties are bilateral in nature.
However, most of them include the following five principles which have been endorsed by
many judicial pronouncements:
1. Extradition applies only with respect to offenses clearly stipulated as such in the treaty.
2. The principle of dual criminality requires that the offenses for which the extradition has been
sought to be an offense under the national laws of both the jurisdictions under the extradition.
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3. The requested country must be satisfied that there is a prima facie case made out against the
accused /offender.
4. The extradited person must be preceded against only the offense for which his extradition
has been requested.
5. He must be accorded a fair trial taking care of the principles of natural justice.
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SOME IMPORTANT CASES
❖ SAVARKAR’s CASE:
In connection with extradition the case of France v. Great Britain 7, concerning Savarkar
may here be noted. Savarkar, an Indian and British subject, was being transported in the
P. and O. boat Morea to India for the purpose of his trial on a charge of high treason and
abetment of murder. During the voyage, he made a bid to escape. The ship S.S. Moreas,
was at Maeseilles when the prisoner entered the water closet and squeezing himself
through its porthole jumped into the sea. The guards immediately noticed him and opened
fire. Alternatively, diving and swimming under a shower of bullets, he reached the port
and climbed the quay. He was pursued by marine guards and seized by a French policeman,
on French soil, who, in mistaken execution of his duty, handed him over to the captain
without any extradition proceedings. Since, Savarkar was a political offender, France
demanded that Great Britain should give him up and ask for his extradition in a formal
way in conformity with International Law. Great Britain did not comply with this demand.
By consent on October 25, 1910, the matter was referred to the Permanent Court of
Arbitration at the Hague.
The award, while admitting that an irregularity had been committed by the handing over
of Savarkar to the British authorities, decided in favour of Great Britain holding that there
was no rule of International Law imposing in such circumstances any obligation on the
power which has in its custody a prisoner, to restore him because of a mistake committed
by the foreign agent who delivered him up to that power.
❖ VIJAY MALLYA’s CASE:
The GOI submitted an extradition request on 9 February 2017 seeking the extradition of
Dr. Vijay Mallya in relation to his involvement in a banking fraud and for the commission
of the offences of cheating and criminal conspiracy under the IPC read with offences under
the Prevention of Corruption Act, 1988 and Prevention of Money Laundering Act, 2002
which corresponded to the notional UK offences of 'conspiracy to defraud', 'making false
representations', 'diversion and dispersal of the proceeds of lending' and 'm oney
laundering'.
7
(1911) 11 RIAA 243
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In his defence, Dr. Mallya argued that the GOI failed to establish a prima facie case.
Furthermore, he contended that his extradition was being sought for extraneous considerations,
namely his political opinions. Dr. Mallya also argued that his extradition was barred since the
same was not compatible with his Convention rights within the meaning of the Human Rights
Act. Specifically, Dr. Mallya argued that there would be a risk to his right to a fair trial (Article
6) and prohibition of torture (Article 3). Dr. Mallya also made detailed arguments objecting to
the admissibility of the GOI's evidence including witness statements under Section 161 of the
Code of Criminal Procedure, 1973 ("CrPC"). Dr. Mallya relied upon the evidence of several
experts including a report prepared by Dr. Alan Mitchell regarding prison conditions (this
expert also provided evidence during Mr. Chawla' extradition hearing). For its part, aside from
placing on record substantial evidence in support of its allegations, the GOI also gave a number
of assurances regarding prison conditions.
The Magistrate Court held that that there was a prima case that Dr. Mallya had committed
the offence of conspiracy to defraud and conspiracy to launder money. It did not find any
evidence to support Dr. Mallya's contention that his extradition was being sought for the
purpose of prosecuting or punishing him on account of his political opinions. The
Magistrate Court also accepted the assurances given by the GOI with respect to priso n
conditions and held that there were no grounds for believing that the Requested Person
would face a real risk of being subjected to treatment contrary to Article 3. Likewise, it
also held that there was no evidence that Dr. Mallya was at a real risk of suffering a flagrant
denial of justice in terms of Article 6. Notably, the Magistrate Court held that the witness
statements under Section 161 of the CrPC were admissible. Consequently, the case was
sent to the Secretary of State for a decision to be taken on whether to order his extradition.
The Secretary of State approved Dr. Mallya's extradition.
Dr. Mallya sought leave to file an appeal to the High Court against the decisions of the
Magistrate Court and the Secretary of State under various grounds. Permission was refused
on all grounds save one: the ground that the Magistrate Court was wrong to conclude that
there was evidence "which would be sufficient to make a case requiring an answer by the
person if the proceedings were the summary trial of an information against him". The
thrust of Dr. Mallya's defence was that the Magistrate Court had erred in determining that
the prima facie test had been satisfied and in admitting the evidence filed by the GOI. The
High Court rejected both contentions, it held that the Magistrate Court was correct in
determining that there was a prima facie case and that the GOI's evidence, including the
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witness statements under Section 161 of the CrPC, were admissible. The appeal was
dismissed on 20 April 2020. Dr. Mallya's application seeking leave to file an appeal before
the Supreme Court was dismissed on 14 May 2020. Consequently, unless Dr. Mallya is
able to secure relief from the European Court of Human Rights, his extradition to India is
now imminent.
❖ ABU SALEM’s CASE:
Abu Salem worked with the D-Company (Gang of Dawood Ibrahim). He was accused of
murders, attempted murders, extortion, drugs dealing, money laundering etc. He was a part of
Mumbai Serial blasts case, 1993 which killed more than 250 people.
After the incident he fled to Dubai then to USA and finally ended up in Portugal. A Red Corner
Notice was issued against him by Interpol. He was arrested in Portugal for staying there with
forged passports and documents.
There was no official extradition treaty between Portugal and India then i.e., in 2002 (The
official treaty was signed by both countries only in 2007). So, India made a formal request to
Portugal for extraditing Abu Salem to India.
The request was made in pursuance of the International Convention for the Suppression of
Terrorist Bombings to which both India and Portugal are signatories. The extradition request
was made by India for the prosecution of the accused in relation to 9 criminal cases.
When the Extradition Trial started in Portugal, Indian Ambassador in Libson (Portugal) gave
assurance to the Republic of Portugal that:
• Abu
Salem will not be prosecuted for any offence other than those for which he is
sought for and;
• He will
not be re-extradited to any other third country.
Also, the Portugal mandated that he should not be imposed with death penalty and an
imprisonment more than 25 years cannot be awarded to him.
In 2005, the Supreme Court of Justice granted the extradition request made by India.
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Subsequently Abu Salem was extradited to India. But later he approached the Supreme Court
of India and Court of Appeals seated at Libson claiming that his extradition became invalid
with the fact that Union of India violated the Rule of Speciality.
He contended that additional charges were pressed upon him which is contrary to the
extradition order granted by the Portugal. The Supreme Court of Justice observed that Union
of India has violated the Principle of Speciality.
And the Supreme Court of India in the case of Abu Salem Abdul Qayyum Ansari v. Central
Bureau of Investigation &Anr.8, observed that the Court in Portugal even though observed
that there is violation of Principle of Speciality, also said there is any specific consequence for
the violation of the said rule. And it has not sought back the accused through any diplomatic
channel. And the order of extradition is still valid.
He again approached a Libson Administrative Court for with the contention his extradition
became invalid since the Indian authorities didn’t comply with the directions in the order.
It was dismissed by the Administrative Court and it observed that the issue must be solved
through diplomatic discussions. And the Supreme Court of India in January, 2021 rejected
his writ petition under Article 32.
8
(2013) 12 SCC 1
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CONCLUSION
Extradition happens to be an important tool in ensuring law and justice today. However, the
irregularity in its application between nations poses a threat to the principles of justice.
However, it is essential to ensure a balance between extradition law and rights of an individual.
It can be understood that this field is a work in progress as the customary nature of this law vis
a vis the standing nature of human and individual rights makes the balancing act one of great
difficulty. This essentially means that extradition must at the least be in line with ensuring basic
human rights of an individual. Effectively, every country must comply with extradition request
unless the fugitive has a compelling reason to prevent such action. It is safe to say that the
existing international framework does undoubtedly increase the effectivity of law enforcement.
But as a caveat, it is essential to ensure to ensure the safety of the individual is ensured before
the interest of the other country so as to ensure that extradition is practical both in terms of
respect and practice.
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REFERENCES
❖ Tandon, Mahesh Prasad and Tandon Rajesh, Public International Law, Allahabad Law
Agency, 2002
❖ Kapoor, Dr. S.K., International Law and Human Rights, Central Law Agency,1974
❖ Sagar, Faraz Alam and Sharma, Pragati, Extradition Law: Fundamentals and Processes
–
Part
I,
https://corporate.cyrilamarchandblogs.com/2019/08/extradition-law-
fundamentals-processes-part1/
❖ Magandas, Shardul Amarchand and Malhotra Aditya, India: India's Recent Successes
In
Extraditing
Fugitives
From
The
United
Kingdom,
https://www.mondaq.com/india/human-rights/948934/india39s-recent-successes-inextraditing-fugitives-from-the-united-kingdom
❖ https://www.unodc.org/pdf/model_law_extradition.pdf
❖ https://mea.gov.in/leta.htm
❖ Kalra, Avneet, Extradition, https://www.legalserviceindia.com/legal/article-1241extradition.html
❖ https://www.researchgate.net/publication/291074865_Extradition_Law_Indian_Persp
ective
❖ Chabbra,
Saroj.
Political
Offence
an
Exception
to
Extradition,
https://www.researchgate.net/publication/333894596_POLITICAL_OFFENCE_AN_
EXCEPTION_TO_EXTRADITION
❖ https://cbi.gov.in/Extradition
❖ https://thedailyguardian.com/journey-of-extradition-laws-in-india/
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