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The International law does not impose a duty on countries to form extradition treaty. It is an obligation by one state upon the request of another, effects the return of a person for trial for a crime punishable by the laws of the requesting state and committed outside the state of refuge. “Extradition treaty” means a treaty [, agreement or arrangement) made by India with a foreign State relating to the extradition of fugitive criminals, and includes any treaty [, agreement or arrangement] relating to the extradition of fugitive criminals made before the 15th day of August, 1947, which extends to, and is binding on, India. Under Extradition Act, 1962 a 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”.
When India has no extradition treaty made with any foreign state, the Central Government may, by notified order, treat any Convention to which India and a foreign State are parties, as an extradition treaty made by India with that foreign State providing for extradition in respect of the offences specified in that Convention. India has extradition treaty currently in force with the following countries:
|S.No.||Country||Year of Treaty.|
India has Extradition Arrangements with the following Countries:
|S.No.||Country||Year of Arrangement|
|1||Antigua & Barbuda||2001|
|6||Papua New Guinea||1978|
The extradition treaty is in the view of divergence between the laws of various countries and it accepts the principle of dual criminality, which means that a person who is a fugitive in India will also be treated as a fugitive and criminal in other country in which he is convicted. Whereas, the extradition arrangements of the countries agree to assist mutually in legal procedures without any binding agreement.
Since 2002, foreign countries have extradited 75 fugitive offenders to India. Of these, 24 fugitive offenders have been extradited to India in the last five years. These individuals have been extradited to India from more than 20 countries including the United Arab Emirates, Canada, United State of America and United Kingdom.
There is a broad framework that governs the extradition procedure to surrender fugitive criminals to foreign state. A requisition for the surrender of a fugitive criminal of a foreign State may be made to the Central Government― (a) by a diplomatic representative of the foreign State at Delhi; or (b) by the Government of that foreign State communicating with the Central Government through its diplomatic representative in that State. If none of these modes are convenient, the requisition shall be made by such other mode, arranged by the Government of the foreign state with the Government of India (GOI).
- When a requisition is made, the Central Government may issue an order to any magistrate who has the jurisdiction to inquire into the offence.
- On the order of the Central Government the magistrate shall issue a warrant for the arrest of the fugitive criminal.
- Procedure before magistrate – (a) When the fugitive criminal appears before the magistrate, the magistrate shall inquire into the case as if the case is triable by a court of session or High Court.
(b) The magistrate shall take evidence in support of the requisition of the foreign State and on behalf of the fugitive criminal, including any evidence to show that the offence of which the fugitive criminal accused or has been convicted is an offence of political character or is not an extradition offence.
(c) If the Magistrate is of opinion that a prima facie case is not made out in support of the requisition of the foreign State, he shall discharge the fugitive criminal.
(d) If the Magistrate is of opinion that a prima facie case is made out in support of the requisition of the foreign State, he shall report the result of inquiry to the Central Government and send the fugitive criminal to prison to await the orders of the Central Government.
- If the Central Government of is opinion that the fugitive criminal shall be surrendered to the foreign state, it may issue a warrant for the custody and removal of the fugitive criminal and for his delivery at a place and to a person to be named in the warrant.
- Power of magistrate to issue warrant of arrest in certain cases – (a) When a magistrate has a jurisdiction to inquire in the case of fugitive criminal of the foreign state, he may, if he thinks fit, issue a warrant for the arrest of that person on such information and on such evidence as would, in his opinion, justify the issue of a warrant if the offence of which the person is accused or has been convicted had been committed within the local limits of his jurisdiction.
(b) A person arrested shall not be detained for more than three months unless within that period the magistrate receives order from the Central Government.
- Warrants, depositions or statements on oath, which purport to have been issued or taken by any court of Justice outside India or copies thereof, certificates of, or judicial documents stating the facts of conviction before any such court.
- The warrants, depositions, statements, copies, certificates and judicial documents, as the case may be, are authenticated by the oath of some witness or by the official seal of a Minister of the State where the same were issued, taken or given.
Jurisdiction as to offences committed at sea or in air. ―Where the offence in respect of which the surrender or return of a fugitive criminal is sought was committed on board any vessel on the high seas or any aircraft while in the air outside India or the Indian territorial waters which comes into any port or aerodrome of India, the Central Government and any magistrate having jurisdiction in such port or aerodrome may exercise the powers conferred by this Act.
A fugitive criminal arrested or detained under this act, the provisions of Code of Criminal Procedure, 1973 relating to bail shall apply in the same manner as they would apply if such person were accused of committing in India the offence of which he is accused or has been convicted. If the offence committed by fugitive criminal is of political character, the fugitive criminal shall not be surrendered or returned to the foreign state. This provision shall be applied to every foreign state without any modifications.
Extradition Treaty between India and UK.
The Article 5(1) of the treaty states that the extradition may be refused if the offence committed is of political nature. Following are the offences which are not regarded as offences of political character, stated under Article 5(2):
- An offence within the scope of convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature at the Hague on 16 December 1970
- An offence within the scope of the Convention for the Suppression of Unlawful Acts against the safety of Civil Aviation, opened for signature at Montreal on 23 September, 1971.
- An offence within the scope of Convention on the Prevention and Punishment of crimes against Internationally Protected Persons, including Diplomatic Agents opened for signature at New York on 14 December 1973.
- An offence within the scope of International Convention against the taking of Hostages, open for signature at New York on 18 December, 1979.
- Manslaughter or culpable homicide
- Assault occasioning actual bodily harm or causing injury, maliciously wounding or inflicting grievous bodily harm whether by means of weapon, a dangerous substance or otherwise.
- The causing of an explosion likely to endanger life or cause serious damage to property.
- The making or possession of an explosive substance by a person who intends either himself or through other person to endanger life or cause serious damage to property.
- The possession of a firearm or ammunition by a person with intent to resist or prevent the arrest or detention of himself or other person to endanger life.
- The use of a firearm by a person with intent to resist or prevent the arrest or detention of himself or another person.
- Damaging properties whether used for public utilities or otherwise with intent to endanger life or with reckless disregard as to whether the life of another would thereby be endangered.
- Kidnapping, abduction, false imprisonment or unlawful detention, including taking of hostage.
- Incitement to murder.
- Any other offence related to terrorism which at the time of the request is, under the law of the requested party, not to be regarded as an offence of a political character.
- An attempt or conspiracy to commit any of the foregoing offences or participation as an accomplice of a person who commits or attempts to commit such an offence.
Under Article 9, there are certain grounds for the refusal of extradition:
- A person may be extradited if:
- He satisfies the Requested State that the request for his extradition has in fact been made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions or
- He satisfies the Requested State that he might, if extradited, be prejudiced at his trial or be punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality or political opinions or
- He satisfies the Requested State that it would, having regard to all the circumstances, be unjust or oppressive to extradite him by reason of:
- The trivial nature of the offence of which he is accused or was convicted or
- The passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be or
- The accusation against him not having been made in good faith in the interest of justice or
- The offence of which he is accused or convicted is a military offence which is not also an offence under the general criminal law.
- A person who has been convicted of an extradition offence may not be extradited therefore unless he was sentenced to imprisonment or other form of detention for a period of four months or more, or Subject to Article 16, to the death penalty,
- A person may not be extradited if he would, if proceeded against in the Territory of the Requested State for the offence for which the extradition is requested, be entitled to be discharged under any rule of law of the Requested state relating to previous acquittal or conviction.
London a Top Choice for Fraudsters.
United kingdoms have been a top choice for fraudsters around the world, as UK gives high priorities for human rights in their legal system. Criminals not only from India but also from US and Russia have fled to London in past. According to British laws, refugees and absconders can stay on in the UK as businessmen, provided they invest at least 200,000 pounds in the British economy. This investment can take any form, from the purchase of real estate to invest in shares. The main reason for UK being a favourite destination for fraudsters is the UK’s strong human rights laws.
The United Kingdom is a signatory to the European Convention on Human Rights. Formed in the aftermath of the second world war, it allows the UK to extend its protection to anyone that it deems falls into the risk of human rights violation. The right to life, right to liberty, freedom from torture, freedom of expression, among others, were very important in light of the massacre laid down by the Nazi Reich and the plight of the European Jews. According to UK, when a foreign criminal is in the risk of facing torture or the death penalty, or if the extradition is for political reasons, it will extend its umbrella of protection to that person and delay, or even deny the extradition.
According to British laws, if you invest 2 million pounds in the British economy, you will be granted a golden visa which allows you to reside in the country. UK is completely a beneficial place for the fraudsters. UK’s departure from the European Union and the new political will in both countries to enhance criminal co-operation could mean that this is a right time to improve the current extradition situation. But there are extreme right-wing advocates in the UK who have in fact begun campaigning for eliminating corporate income tax altogether in the hope it will boost investment and jobs. This could affect extradition processes, making it more difficult to bring economic offenders’ home.
In 2018, India had given a list of 57 fugitives to Britain and Britain has given a list of 17 fugitives to India. Statistics show that from 2013 till now 5500 Indians have taken shelter in the Britain, although not all are criminals. Britain had extradited just 1 offender so far namely; Indian Samirbhai Vinubhai Patel in 2016, after which Britain has not extradited any fugitive to India.
Why UK, Why not France or Germany? Indians find it difficult to navigate through Europe without knowing French, German or Spanish. Moreover, just an eight-hour flight to UK from India is very convenient for fugitive’s friends and family to visit. In conclusion, India needs to match the treaty obligations with domestic laws. Leveraging diplomacy and bilateral negotiations to persuade countries to process requests expeditiously, is an important step. Likewise, India should, on the basis of reciprocity and comity process extradition requests received from foreign states swiftly and efficiently.
Additionally, the Indian government must make good on its policy “to conclude extradition treaties with as many countries” as possible, and make efforts to enter into more bilateral extradition relations. India also needs to take steps to dispel concerns regarding poor prison conditions and potential human rights violations of the requested person. Assurances by the Indian government regarding the same are often not accepted by foreign courts.
Author: Riddhi Kapadni, MIT WPU Faculty of Law, Pune.
 The Extradition Act, 1962, s.2(d).
 The Extradition Act, 1962, s.2(f).
 The Extradition Act, 1962, s.4(a), (b).
 The Extradition Act, 1962, s.23.