INTRODUCTION

The practice of extradition enables one state to hand over to another suspected or convicted criminals who
have fled abroad. It is based upon bilateral treaty law and does not exist as an obligation upon states in
customary law. It is usual to derive from existing treaties on the subject certain general principles, for
example that of double criminality, i.e. that the crime involved should be a crime in both the states
concerned, and that of speciality, i.e. a person surrendered may be tried and punished only for the offence for
which extradition had been sought and granted. In general offences, offences of a political character have
been excluded, but this would not cover terrorist activities. It is common for many treaties laying down
multiple bases for the exercise of jurisdiction to insist that states parties in whose territory the alleged
offender is present either prosecute or extradite such person. Many treaties include the automatic inclusion
within existing bilateral extradition treaties which states parties to such treaties of the offence concerned.
Many states will not allow the extradition of its nationals to another state, but this usually in circumstances
where the state concerned has wide powers to prosecute nationals for offences committed abroad. Once must
also note the relevance of Human Rights law to the process of Extradition.
The following rational considerations have conditioned the law and practise to extradition:
a) The general desire of all states to ensure that serious crimes do not go
unpunished. Frequently a state in whose territory a criminal has taken refuge cannot prosecute or
punish him purely because of some technical rule of criminal law or for lack of jurisdiction.
Therefore to close the net round such international offenders, international law applies the maxim
‘aut punier aut dedere’ – the offender must be punished by the state of refuge or surrendered to the
state which can and will punish him.
b) The state on whose territory10 the crime has been committed is best able to try the offender because
the evidence is more freely available there, and that the state has the greatest interest in the
punishment of the offender, and the greatest facilities for ascertaining the truth. It follows that it is
only right and proper that to the territorial state should be surrendered such criminals as have taken
refuge abroad.
There are two types of extradition treaties: list and dual criminality treaties. The most common and
traditional is the list treaty, which contains a list of crimes for which a suspect will be extradited. Dual
criminality treaties, used since the 1980s, generally allow for extradition of a criminal suspect if the
punishment is more than one year imprisonment in both countries. Occasionally the amount of the time of
the sentence agreed upon between the two countries is varied. Under both types of treaties, if the conduct is
not a crime in both countries then it will not be an extraditable offense.
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 MEANING OF THE TERM EXTRADITION

“Extradition is the delivery of an accused or a convicted individual to the State where he is accused of, or
has been convicted of a crime, by the State on whose territory he happens for the time to be.” - Oppenheim
There have been repeated occurrences of persons escaping to other States after commission of an offence in
his own State. A pertinent question would be as to whether that particular fugitive is liable to be tried in the
country where he committed the crime or the one where he fled.
Where an accused is wanted for trial in another State, then his surrender to that State should be under the
extradition laws. The extradition is carried on in Domestic courts as well as tribunals of the State requesting.
Extradition has a wider ambit. Along with being a part and subject of International criminal law, it’s scope
spreads to some substantive offences such as war crimes or any such United Nations sponsored antiterrorist
convention.1
A State usually is thereby under a dilemma as to the punishment of the offender who committed the crime
elsewhere due to lack of jurisdiction. Hence they are surrendered to the State where the crime was
committed.
Extradition arised from „ex‟ and traditu’’, which means „ delivery of criminals‟, surrender of fugitive’’ or
“handover of fugitive”. The first State is a territorial State where the offender or the accused was found and
the Requesting State is the one where the crime was committed.
Under International Law, the rules relating to extradition are not well established because it is an arena,
which does not come solely under the field of International Law. It is considered to be a Dual law. Attempts
were made to establish rules relating to extradition such as the draft convention by Harvard Law School in
1935 and the International Law Commission in 1949, enlisted it as a topic for codification in its provisional
list. Currently, due to an absence of a multilateral treaty or convention, extradition is carried on by States on
the basis of bilateral treaties and in accordance with Municipal law. For instance, India enforced It’s
Extradition Act of 1962, amended in 1993. Other states have their own national laws.
Extradition is itself an element in the international protection of human rights. Contradicting, when returning
an accused to face legitimate prosecution for the misdeeds, it is a part of the law of human responsibilities.

1
http://cbi.nic.in/interpol/extradition.php , Accessed: 11/10/2017 time- 9:30 pm
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 PURPOSES OF EXTRADITING FUGITIVES

The evolution of extradition treaties was a result of absence of international obligation to surrender an
alleged criminal by a State to a foreign state as each state has a right and authority over its citizens and are
under no implied obligation to extradite them without an agreement or treaty. The penal procedures of most
nations contain extradition clauses in case of an absence of an extradition treaty.
Thereby enacting legislations and comprising agreements and treaties enable determination of conditions
and norms where the extradition requests may be either denied or acknowledged.
The purposes or reasons of a criminal to be extradited to the requesting state are as follows:
1. Criminals are extradited in order to punish or prosecute an offender who fled to a state where he may
not be punished due to lack of jurisdiction or technical criminal law norms.
2. It acts as a deterrent measure by warning the criminals who flee to other state after commission of a
crime.
3. In order to protect the interests of the territorial state, the offenders are thereby surrendered for
peacekeeping.
4. Extradition is based on the principle of reciprocity whereby one state requesting a fugitive’s
surrender may have to later on extradite a criminal to another state.
5. The aim of the United Nations is to maintain international peace and cooperation and extradition is a
means to achieve that desired co-operation.
6. The evidence and witnesses are freely available and accessible in the State where the crime was
committed and hence, that state is better suited to punish and try the criminal.
Extradition may resolve international offences to a large extent if the states cooperate with each other and
desire to eliminate crimes mutually.
Thus, the most modern extradition treaties seek balancing of rights of individuals with the need to ensure
that the extradition process operates and functions effectively and are based on principles that are now
regarded as established international norms, which are designed not only to protect the integrity of that
process itself, but also to guarantee the fugitive offender a degree of procedural fairness.

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 CONDITION FOR EXTRADITION

Extradition is granted only if asked for , and after the formalities have taken places which are stipulated in
the treaties of extradition and the extradition laws, if any. The usual procedure is for there to be a request for
extradition submitted through diplomatic channels, identifying the fugitive criminals stating that a warrant
for his arrest has been issued and outlining the facts of the offences: in urgent cases there is often a
procedure for provisional arrest pending the receipt of the more formal documents requesting extradition.
Extradition is effected through the handing over of the criminal by the police of the extraditing state to the
police of the prosecuting state. The law of the united kingdom, and of many other states provides an
opportunity for a wanted person to have the lawfulness of his extradition determined by the courts; but this is
primarily a matter of the internal law of each state, and not a requirement of customary international law.
Furthermore, where a state is a party of treaties for the protection of human rights it will be necessary for it
to ensure that the grant of extradition by it in any particular case is consistent with its human rights
obligation, which may be relevant even if the requesting state is not also a party to the human rights treaty in
question.
Most extradition treaties embody the so called the principle of specialty, whereby it is a condition of
extradition that the surrendered individual shall be tried and punished for those crimes exclusively for which
his extradition has been asked and granted or for those at least which the extradition treaty concerned
enumerates. If nevertheless, an extradited individual is tried and punished for another crime, the extraditing
state has a right to complain. Where a state is by treaty committed to observe the principle of specialty,
another state will not assume that it will act in bad faith and ignore that commitment if a fugitive is
extradited to it. In those cases where the same set of facts can constitute several offences it is not unusual to
provide in treaties that the accused may be tried not only for the offences specified in the request for the
extradition but also for any other lesser offence proved by the facts established to the extraditing state in
connection with that request.2
From the previous discussion of the concept of extradition in international law, it is understood that three
general conditions for extradition have emerged effectively:
a) The Principle of Double Criminality,
b) The existence of an “extraditable” offence, and
c) The existence of an Extradition Treaty

a) Double Criminality: It is an accepted principle of international law that the fugitive's act must

2
https://www.ag.gov.au/www/agd/agd.nsf/Page/Extradition_and_Its_Principle/ accessed – 13/10/2017 time- 11:30
pm
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constitute an offence according to the laws of both countries—commonly known as the principle of "double
criminality. In the Indian Extradition Act, 1903, in addition to the words " Extradition Offence " defined in
section 2 (b), the word "offence" was also defined by section 2 (e) as " including any act where so ever
committed which would, if committed in the States, constitute an offence," thus providing for the rule of
double criminality in that enactment. But this word has been deleted in the Indian Extradition Act,1962 and
only "extradition offence " has been defined in section 2 (c).
Under the procedure prescribed in the Act, the Magistrate is not required to investigate whether the act of the
fugitive is an offence under the penal law of the country requesting extradition. Thus the principle of double
criminality has not been given due recognition in the Act. It may, however, be questioned whether the
requesting State can try an offence if it is not one provided by its own penal law. But that is a separate issue,
and in most treaties it is clearly mentioned that the act must be an offence in both countries
.
b) Extraditable Offence: Extradition is granted when a person has committed an
offence, it must be ascertained that the offence is an extraditable offence. There are generally three ways in
which an extraditable offence or what is commonly known as an ‘extradition offence,’ may be incorporated
into the domestic law of extradition.
Some domestic laws define “extraditable offences” according to the term of imprisonment. The extradition
law of France (March 1927) has made such a provision.
The Indian delegation at the Third Session of the Asian-African Legal Consultative Committee (1960), while
accepting the eliminative method, which defines extraditable offences by reference to the maximum or
minimum penalty which may be imposed, was of the opinion that the enumerative method, which specifies
each offence for which extradition may be granted, should be preferred. This approach continued till the
amendment of the Act in 1993.3

c) Extradition Treaty: Today it is firmly recognised that, unless a State is bound by an extradition
treaty, it can refuse extradition for any crime. India’s stand in this regard is expressed by the Indian
delegation at the Third Session of the Asian-African Legal Consultative Committee wherein it is stated that
“there could be no objection to voluntary extradition of offenders even in the absence of treaty
arrangements.”The definition of “extradition offence” in the 1962 Act, as well as the heading of the Second
Schedule" Extradition offences” in relation to foreign States other than treaty States...-indicate that
extradition may be granted for the offences mentioned therein to a State with which there is no treaty.
An important question, however, arises, concerning "the fate of an extradition treaty, when a State changes
its constitutional framework so fundamentally as to suggest that a new entity has been created "? Oppenheim

3
Briggs.H.W “The Law of Nations” Stevens and Sons, London, 2nd ed., 1953). Pp - 414

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seems to be of the opinion that, in such a case, the new State is not bound by the extradition treaties entered
into by the extinct State.4
The present Act in its clause 2 (d), however, defines "extradition treaty" as meaning "a treaty or agreement
made by India with a foreign State relating to the extradition of fugitive criminals, and includes any treaty or
agreement relating to the extradition of criminals made before August 15, 1917, which extends to, and is
binding on, India"

4
Oppenheim, International Law (1955) Vol.1, p. 159.

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 EXCEPTION TO EXTRADITION OF INDIVIDUALS

The following conditions of extradition are usually incorporated in Extradition Acts and Treaties these days:
a) Extradition shall not be granted for political offences.
b) The request for extradition should not be time-barred.
c) The rule of speciality.
d) Non Bis in idem

a) Political offence: It is a recognised principle of international law that political offenders should not
be extradited.This principle has been incorporated in section 31 (a) of the 1962 Extradition Act which runs
as follows:
“A fugitive criminal shall not be surrendered or returned to a foreign State or Commonwealth country, if the
offence in respect of which his surrender is sought is of a political character or if he proves to the satisfaction
of the magistrate or court before whom he may be produced or of the Central Government that the
requisition or warrant for his surrender has, in fact, been made with a view to try or punish him for an
offence of a political character.”
The provision about political offenders in the 1962 Act is divided into two parts. Under the first part, a
fugitive criminal shall not be surrendered if the offence in respect of which his surrender is sought is of a
political character. Under the second part the surrender is prohibited if the fugitive criminal proves to the
satisfaction of the Magistrate or court before whom he may be produced, or of the Central Government, that
the requisition or warrant for his surrender has, in fact, been made with a view to try to punish him for an
offence of a political character. It appears that the two parts are meant to deal with different sets of
circumstances.

b) Lapse of time: The (Indian) Extradition Act, 1962, in its section 31 (6)
provides: " A fugitive criminal shall not be surrendered or returned to a foreign State or Commonwealth
country, if prosecution for the offence in respect of which his surrender is sought is according to the law of
that State or country barred by time." The provision barring extradition due to lapse of time is one which is
generally incorporated in extradition treaties and statutes. But there is no agreement as to whether the law of
limitation of the requested State should apply or that of the requesting State.” The present trend, however,
seems to favour the view that extradition may be refused when the offence has become time-barred under the
law of either the requesting or the requested State.

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 c) Rule of specialty – The principle of specialty, according to which extradition is granted only on the
condition that the person extradited will not be tried or sentenced for any offence other than that for
which extradition is granted, is incorporated in many national extradition statutes and treaties.
This rule finds a place in section 31 (c) of the present Act, and runs as follows:
" A fugitive criminal shall not be surrendered or returned to a foreign State or Commonwealth country,
unless provision is made by the law of the foreign State or Commonwealth country or in the extradition
treaty with the foreign State or extradition arrangement with the Commonwealth country, that the fugitive
criminal shall not, until he has been restored or has had an opportunity of returning to India, be detained or
tried in that State or country for any offence committed prior to his surrender or return, other than the
extradition offence proved by the facts on which his surrender or return is based

d) Non bis in idmis5: The rule non bis in idemis a rule of general application, which opposes itself to
all practices, both municipal and international, which would subject a person to repeated harassment for the
same act or acts." So under this rule, which provides against double jeopardy for the same act, extradition
may be refused if the offender has already been tried and discharged or punished, or is still under trial in the
requested State, for the offence for which extradition is demanded. The present Extradition Act does not
make a specific mention of it, but the rule is incorporated in the Criminal Procedure Code, Section 403.
These are the four most important restrictions on extradition that are generally
found in statutes and treaties, and three of them have been incorporated in the present Act as discussed
above. But the Act goes a step further and empowers the Central Government to discharge a fugitive
criminal if it appears (to the Central Government) that, by reason of the trivial nature of the case, or by
reason of the application for the surrender or return of a fugitive criminal not being made in good faith.

5
Mani . V. S, ‘Extradition & international law’ The Hindu , New Delhi, 2002
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 EXTRADITION LAW IN INDIA

India enacted its first Extradition Act in 1902. Extradition was regulated on the basis of United Kingdom
Extradition Act 1870, prior to the 1962 Act.22 The 1962 Act consists of 5 Chapters and 2 Schedules.Under
Section 2(d) of the Indian Extradition Act 1962, „extradition treaty‟ has been defined as a treaty(agreement
or arrangement) made by India with a foreign State relating to the extradition of fugitive criminals and
includes any treaty relating to the extradition of fugitive criminal made before 15th August 1947, which
extends to, and is binding on India.
India prepared a list of pre-independence extradition treaties in the year 1956, which were stated to be in
force. Section 3(1) of the 1962 Act ensures that the Government of India makes a notification to all States
with which it had extradition treaties before independence. It would thereby remove all ambiguity and
doubts without arising confusions in individual matters.6

In Dr. Ram BabuSaksena vs. The State[1950 AIR 155] , the issue was regarding the extent of the
application of 1869 extradition treaty between the State of Tonk and Government of India, which was
affected by the merger of Tonk into India. The Apex Court held that the treaty must be deemed to be
ineffective.
In another matter of The State of Madras vs. C.G. Menon[1954 AIR 517], the issue was where Fugitive
Offenders Act 1881 which was a part of Indian Extradition law regulating extradition of fugitive offenders in
respect of commonwealth nations. It was held that the Act was inapplicable in the territories of India.
L.C Green opined that: “ although there are inconsistencies in recent judicial practice in the field of
continuity, there is a tendency for extradition arrangements to continue to operate despite changes in state
personality.”
The 1993 Amendment Act enabled India for conclusion of extradition treaties with foreign States, including
the Commonwealth countries, without treating them in a different manner. The difference is between treaty
states and other foreign states, as was the case earlier.
The Amended Act also implies the definition of an „extradition offence‟ to mean;
1. In relation to a foreign state being a treaty state; an offence provided for in extradition treaty with that
state
2. In relation to a foreign state other than a treaty state an offence, which is punishable with at least a
minimum one year imprisonment including a composite offence.

6
http://lawprojectsforfree.blogspot.in/2010/08/international-law-extradition.html , accessed – 13/10/2017 time-
11:45 pm
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 CASES WITH EXTRADITION

CASE STUDY

ABU SALEM'S EXTRADITION CASE[2013 (10) SCALE 31]

FACTS
When Abu Salem entered the US, they tipped off the Federal Bureau of Investigation (FBI), which tailed
him. Abu managed to get out of the US and entered Portugal through Lisbon after rigging up his papers.
They went on to tip the Lisbon authorities that immediately seized the Indian gangster. And, the tables
turned. Abu Salem found himself on the receiving end and, the Mumbai police, on their part had, scores to
settle with the gangster whose extradition from Portugal is shrouded with as much controversy as his role in
the city's blackest blasts .
The extradition of underworld don Abu Salem was a tribute to the co-ordination among the Central Bureau
of Investigation, the ministry of home affairs, the ministry of external affairs and the Indian embassy in
Lisbon, Portugal, and was made possible by the excellent co-operation received from the Portuguese
authorities. The extradition was a landmark event for many reasons .

ISSUE
Whether the Indian government can Extradit a person from a country where there is no Extradition Relation?

RATIO
There is no extradition treaty between India and Portugal. The absence of such a treaty initially created legal
difficulties. Therefore this becomes an area where political considerations play a prominent role, unless there
is an applicable bilateral extradition treaty.
Indeed, a country does not need a treaty to decide that a fugitive found within its jurisdiction should be
extradited to another country that requests extradition. It can, if it wants to, take that decision without any
treaty obligations whatsoever, even by exercise of executive discretion. Where there is a bilateral extradition
treaty, the states party to it normally goes by its terms. The process of extradition usually involves
interposition of the Judiciary in both countries, and this has permitted the emergence of some discernible
principles of international law governing extradition .
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International law recognizes four points as a basis of exercise of criminal jurisdiction by a sovereign state,
namely, territoriality (the state where the offence has been committed), nationality (the national state of the
offender or the accused), the protective principle (the state whose essential economic or other interests have
been directly and adversely affected by the offence), and universality (the offence being an international
crime) .
While these are situations largely governed by the political relations between the two countries involved, yet
even a political/administrative decision to extradite or deport is likely to go before the law dispensing
authorities including the judiciary in the extradition-requested state .
Indian government sought his extradition under the United Nations Convention on Suppression of Terrorism
of 2000 under which all member nations have to help each other in the war against terrorism. Portugal and
India are both signatories to the Convention. In the meantime, the Portuguese court sentenced Salem and his
girlfriend Monica Bedi to four years imprisonment for illegally entering and staying in Portugal on forged
passports. The court also ordered that their extradition could be made only after they have completed their
prison term. When the CBI got to know of Salem's plea the Portuguese lawyer representing the Indian
government rushed to the court to remind the judge about his previous order about extraditing the duo on
completing their 4-year sentence .

JUDGEMENT
The Portuguese court ordered their extradition after the Indian government, through its lawyer, gave a
solemn assurance that if convicted they would not be sentenced to death. The assurance was given since
European law prohibits extradition of any accused to such a country where capital punishment is in vogue.

It is essential here to give a glance at the earlier decided case of Gill & Sandhu . In early 1987, the
government of India requested the United States to extradite Ranjit Singh Gill and Sukhminder Singh
Sandhu, claiming that the two were responsible for robberies and murders committed in the Punjab, in India.
Magistrate Ronald J. Hedges, however, found that he could not consider evidence of the mistreatment to
which Gill and Sandhu could be subjected if returned to India.

The court stayed their release pending an appeal by the Indian government. In reaching his decision, Judge
Robert J. Sweet considered four primary issues: (1) the scope of the district courts’ review of extradition
proceedings; (2) the fairness of the hearing procedures; (3) the probable cause determination; and (4) the
possible antipathetic treatment awaiting Gill and Sandhu in India.

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 OTHER RELATED CASES

1. In the case of Daya Singh Lahoria v. Union of India[1991 SCR (2) 462] The grievance of the
petitioner Daya Singh Lahoria, in the Writ Petition is, that the Criminal Courts in the country have no
jurisdiction to try in respect of offences which do not form a part of extradition judgment by virtue of
which the petitioner has been brought to this country and he can be tried only for the offences
mentioned in the Extradition Decree.
It was the contention of the petitioner that he cannot be tried for the offences other than the offences
mentioned in the extradition order as that would be a contravention of Section 21 of the Extradition
Act as well as the contravention of the provisions of the International Law and the very Charter of
Extradition treaty.
Therefore in view of these it is clear that both on international law as well as the relevant statute in
this country entail that a fugitive brought into this country under an Extradition Decree can be tried
only for the offences mentioned in the Extradition Decree and for no other offence and the Criminal
Courts of this country will have no jurisdiction to try such fugitive for any other offence.

2. In the case of United States v. Rausher, the Supreme Court of the United States stated the American
view on extradition in these terms:“It is only in modern times that the nations of the earth have
imposed upon themselves the obligation of delivering up these fugitives for justice, to the states
where the crimes were committed, for trial and punishment. This has been done generally by treaties.
Prior to these treaties and apart from them there was no well-defined obligation on one country to
deliver it was upon the principle of comity and it has never been recognized as among those
obligations of one Government towards another which rest upon established principles of
International Law”.
National legislations and judicial decisions of the various States confirm the principle that a demand
for extradition need not be granted unless it is in conformity with the formalities and conditions
incorporated in the treaties. A classical statement of this doctrine was clearly expressed by the
Supreme Court of the United States when it observed:
“The principles of international law recognize no right to extradition apart from treaty. While a
government may, if agreeable to its own constitution and laws, voluntarily exercise the power to
surrender a fugitive from justice to the country from which he had fled, and it has been said that it is
under a moral duty to do so the legal right to demand his extradition and the correlative duty to
surrender him to the demanding country exists only when created by treaty.”

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 CONCLUSION

Extradition is the official process by which one nation or state requests and obtains from another nation or
state the surrender of a suspected or convicted criminal. Between nation states, extradition is regulated by
treaties. Between sub-national regions (for example, the individual states of the U.S.), where extradition is
required by law it is more accurately known as rendition.
In theory as well as in real terms, the principle of extradition has attained the position of a facilitator of
imprisonment or trial in matters where suspected individual escapes the boundaries of a nation to flee from
being prosecuted. In order to attain maximum out of the process, there is a dire need to eliminate the
vendetta of the criminals by firstly making the procedural law less complicated and more efficient.
If there is a constant fear in the minds of offenders and criminals where they will be caught or extradited and
prosecuted along with being punished severely for committing crimes, it is genuinely going to reduce
abundantly crimes and criminals.
In conclusion, frequent failure to catch fugitives and surrender them to the requested state is the major cause
of delay in implicit achievement of international co-operation and a crime-free world. It has also been a
lacuna in providing justice to the innocent suspects who are wrongly and mistakenly accused of an offence
and even inflicted on them are aids such as cruel and degrading punishment or imprisonment along with
capital punishment or death sentence in certain circumstances.
Henceforth, the challenging involvement of all such political, criminal as well as the economic activities in
crimes like human trafficking, terrorism, or drug abuse, war crimes etc. has caused greater hardship and
blockage in developmental prospects of each nation individually and also together.

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