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- A US court has approved the Indian government’s request for the extradition of Tahawwur Rana, the Pakistan-born Canadian man who faces charges for his role in the 26/11 Mumbai terror attacks in 2008 and is known to be associated with David Headley.
What is extradition?
- The term ‘extradition’ originates from two Latin words- ‘ex‘ meaning ‘out’ and ‘tradium‘ meaning ‘give up’.
- It is based on the Latin legal maxim “aut dedere aut judicare”meaning “either extradite or prosecute”.
- As Oppenheim defined, “extradition is the delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed or to have been convicted of, a crime by the state on whose territory he happens for the time to be”.
- There are two states involved in extradition- the territorial stateand the requesting state.
- The “territorial state” is where the accused or convict flees to escape the trial or punishment.
- On the other hand, the “requesting state” is the one where the offence is or is allegedly committed.
- The requesting state formally demands the surrender of the accused or convict through diplomatic channels and in conformity with any treaty.
The philosophy behind extradition
- The concept of extradition is based on the contention that an accused or convict can be tried or punished with utmost efficacy at the place where the cause of action arose or the crime took place.
- Also, such a country has a significant amount of interest in punishing the offender.
- Moreover, the concept of state sovereignty kicks in while dealing with extradition.
Purpose of extradition
An accused or convict is extradited by the territorial state to the requesting state for the following purposes:
- To prevent escape from punishment
- Every successful extradition acts as a red flag to the criminals intending or planning to flee from the territory of the juridically competent state
- To maintain peace in the territorial state
- To reciprocate diplomatic kindness
- To enhance international cooperation
Principles of extradition
There are generally four principles of extradition, as explained below:
Principle of Reciprocity
- It provides that every act of favour, respect, benefit or penalty that a country bestows on the citizens or legal entities of another country, should be returned (reciprocated) in the same manner.
Principle of Double Criminality
- The principle of double criminality provides that the act for which the accused person or convict is requested to be extradited by the requesting state, must be a crime in the territorial state as well.
Principle of Double Jeopardy
- It provides that a person who had already been tried and punished can not be extradited if the request pertains to the same crime.
Principle of Speciality
- The principle of speciality provides that the requesting state is bound to try or punish the extradited offender only for the offence for which he is extradited.
International Model Laws on extradition
- The Geneva Conventions and their Additional Protocols (1949) were some of the earliest conventions that dealt with extradition to some extent; it recognised the state’s cooperation in extradition.
- The United Nations Model Treaty on Extradition (1990): firmly emphasised international cooperation in extradition-related matters. It has 18 Articles, dealing with the grounds for refusal of extradition requests, Rule of Speciality, etc. However, it prioritises the discretion of the territorial State.
- The United Nations Model Law on Extradition (2004): aims to act as a supplementary statute in cases of countries where extradition treaties are absent.
Challenges in Extradition Law
- The requirement of double criminality is often misused by fugitive criminals. They usually flee to a country where their act does not constitute an offence.
- Most fugitive offenders who are connected to politics in some way use it as an excuse to escape extradition, as most countries avoid extradition of political offenders.
- Extradition procedures are highly time-consuming due to the requirement of various paperwork.
- As far as India is concerned, one of the major challenges is that India has extradition treaties with only a limited number of countries.
Extradition under Indian Laws
- As far as India is concerned, the Indian Penal Code, 1860does not explicitly mention extradition but implies it in the Sections related to jurisdiction.
- In British India, extradition was regulated by the United Kingdom’s Extradition Act (1870), followed by the Extradition Act (1903). Presently, the Extradition Act (1962)regulates extradition in India.
The Extradition Act (1962)
- The Act provides for the extradition of fugitive criminals both from and to India.
- The extradition may take place in accordance with any extradition treaty with the requesting or territorial state.
- However, the Act also provides that, in absence of any such treaty, any Convention to which India and such requesting or territorial state are parties can be treated as the extradition treaty for that matter. (Section 3)
- The Act imposes no explicit restriction on the extradition of Indian nationals to the requesting State; however, the bar on extradition varies from treaty to treaty.
- Currently, India has extradition treaties in force with 48 countries.
- Further, currently, India has extradition arrangements with 12 countries.
Restrictions on surrender under Indian Law
- As per Section 31 of the Act, the fugitive criminal shall not be surrendered:
- If the offence committed or alleged to have been committed by him is of political nature;
- If the offence committed or alleged to have been committed by him is time-barred as per the requesting state’s laws;
- If no provision exists in the extradition treaty or arrangement stating that he shall not be tried for any offence other than for which he is extradited;
- If he has been accused of any offence in India not being the one for which is extradition is sought; and
- Until after fifteen days from the date of his being committed to prison by the magistrate.
Procedure for extradition to India
- The process for the extradition of a fugitive criminal to India from the territorial state begins when the juridically competent Magistrate in India sends a request to the CPV Division of MEA, GOI.
- The request is then formally sent to the territorial state through diplomatic channels, from where it is forwarded to an Inquiry Magistrate.
- Upon such determination, the Inquiry Magistrate in the territorial state issues a warrant to arrest the fugitive criminal. His arrest is intimated to the CPV/ Indian Embassy.
- Finally, concerned Indian law enforcement personnel travel to the territorial state to escort the fugitive criminal back to India.
Extradition is an essential tool not only to render justice but also to test diplomatic ties. However, the absence of extradition treaties with many countries becomes the loophole that fugitive criminals exploit. There is a need to bring about a comprehensive international law relating to extradition.
Q) The absence of extradition treaties with many countries becomes the loophole that fugitive criminals exploit. Comment. (250 words)