Author: Abhay Saxena, Bharati Vidyapeeth New Law College, Pune
Extradition is an act where one country delivers a person accused of committing a crime to another country, over to the law enforcement agencies. It is a process of cooperation between the two countries and depends on the arrangements made by them. An extradition request for an accused can be initiated under cases of under-investigation, under-trial and convicted criminals but in cases of under-investigations, the law enforcement agency has to have prima facie evidence against the person accused of the crime.
Law governing extradition in India:
The Extradition Act, 1962 governs the laws relating to extradition in India. The Act was enacted to set up some rules and regulations relating to the extradition of fugitive criminals and to provide matters connected therewith and also cases relating to the extradition of criminals to India from foreign states. The Act was amended in 1993 by the Act 66 of 1993.
Nodal agency for extradition in India:
The Consular, Passport, and Visa (CPV) Division, Ministry of External Affairs, Government of India is the central/nodal agency that administers the Extradition Act and it processes incoming and outgoing Extradition Requests.
Provisional Arrest Request:
In cases of urgency, the provisional arrest request can be used by India to extradite the arrested person and it is only appropriate if the person is about to flee the jurisdiction or country. Section 34 (B) of the Extradition Act, 1962 provides for the provision of provisional arrest request.
Documentation required for provisional arrest request is as follows:
1. A statement explaining why the request is urgent
2. The physical description of the person including his/her nationality, photograph, fingerprints and if available, a list of offences committed by him/her.
3. The location of the person sought
4. A brief description of the offences committed by the fugitive and availability of prima facie evidence against him.
5. A copy of the legal provisions setting out the offences and penalties.
6. A statement stating that an arrest warrant or a conviction has been sought against the person. Also, a copy of the same has to be enclosed.
7. A statement that if the person is provisionally arrested, India will seek the person’s extradition within the period required by that country’s law.
Section 2(d) of the Extradition Act, 1962 defines Extradition Treaty as “as 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.” India shares extradition treaties with almost 54 countries.
Bars to Extradition:
There are five cases where the convict is barred from extradition:
1. No treaty – In the absence of a treaty, States are not obligated to extradite aliens/nationals.
2. No treaty crime – Extradition is generally limited to crimes identified in the treaty which may vary about one State from another, as provided by the treaty.
3. Military and Political Offences – Extradition may be denied for purely military and political offences. Terrorist offences and violent crimes are excluded from the definition of political offences for extradition treaties.
4. Want of Dual Criminality – Dual criminality exists when conduct constituting the offence amounts to a criminal offence in both India and the foreign country.
5. Procedural considerations – Extradition may be denied when due procedure as required by the Extradition Act of 1962 is not followed.
Thus, Extradition plays an important role in the international battle against crime. Given the solidarity of nations to curb the criminality, however, a State, though refusing to impose direct penal sanctions to offences committed abroad, is usually willing to cooperate to provide justice to the aggrieved party.