This article is written by Harshit Khandelwal, 2nd year Law student currently pursuing BBA-LL.B(Hons.) from Unitedworld School of Law, Karnavati University. In this article, the author discusses the basic meaning of what Extradition is, the procedure of extradition of a fugitive offender from one jurisdiction to another.
Extradition is a process where a person accused or convicted of committing a crime is delivered from one jurisdiction to another jurisdiction, over to their law enforcement. It is a process of cooperative law enforcement between two jurisdictions and depends on the arrangements made between two jurisdictions.
Other than the legal aspect of this process, it also involves the physical transfer of a person’s custody being extradited from one jurisdiction to another jurisdiction.
When one jurisdiction requests to another jurisdiction, it is known as the Extradition process. Extradition is normally synchronized by treaties between the countries. When extradition is forced by laws, among sub-national jurisdictions, then it is known as rendition. If the offender is found within the territory of the requested jurisdiction, then the requested state may arrest the offender.
Extradition offence is defined under section 2(c) as –
- An offense punishable under Indian law or any other foreign law with an imprisonment of not less than one year.
- An offence in part or wholly in Foreign or Indian state, which would constitute an extradition offence.
A fugitive offender can be extradited as per section 2(f) it is a person who :
Who is convicted or accused of an extradition offence committed within the jurisdiction of a state –
If a person has committed an offence in a foreign state from within the parts of India, then he/she will be liable to be extradited and is known as a fugitive offender.
- Receipt of Information
The process of extradition starts with the receipt of requisition regarding the fugitive offenders wanted in foreign countries. This information can be received –
1. Directly from the diplomatic channels of the particular country with the necessary information regarding the fugitive offenders; or
2. In the form of red notices from the General Secretariat of Interpol.
- Magisterial Inquiry
When a requisition is received, the central government calls for an inquiry by the magistrate directing him/her to enquire into the case. The initial enquiry doesn’t need to be a detailed one before ordering a magisterial inquiry. There is no need for a pre-decisional hearing required to be given to the fugitive before ordering the magisterial inquiry. The function of the magistrate is quasi-judicial under this section. The magistrate should issue an arrest warrant against the fugitive offender on receipt of the order. Once the offender is brought in front of the magistrate then the magistrate starts inquiry in the case.
Procedure Under the Indian Extradition Act, 1962
The government of India currently has bilateral extradition treaties with around 42 countries and also extradition agreements with 9 more countries to ease the process of extradition. In India, the extradition of an offender from a foreign country to India or vice-versa is governed by the provisions of the Indian Extradition Act, 1962. Section 3 of this act states that notification could be issued by the Indian Government extending the provision of the act to the countries notified. The basis of Extradition could be a treaty between a Foreign country and India and when there is an absence of a treaty, an agreement of Extradition.
Extradition Treaties and Agreements
There is no country in the world which has an extradition treaty with all other countries, just like the United States does not have an extradition treaty with China, Namibia, North Korea, Bahrain, and many other countries.
1. Indian Extradition Law
The extradition of a fugitive offender from a Foreign country to India and vice-versa is covered under the provisions of Indian Extradition Law, 1962 which forms the legislative basis for this area of law. The first principle of extradition law is laid down by this act.
2. EXTRADITION TREATY
Section 2(d) of the Extradition act means an agreement, treaty, or arrangement with a foreign state relating to the extradition of fugitive offenders is known as the Extradition Treaty.
3. NEED AND UNDERLYING PHILOSOPHY OF THE LAW OF EXTRADITION
Crimes are increasing day by day and are turning International nowadays. Many serious offences have crossed the border implications. In the case of Traditional crime, offenders frequently cross borders to escape from prosecution.
The traditional principle of territoriality of Criminal law states that a state does not usually apply its criminal law to acts committed outside the jurisdiction of the state. However, the current situation between different states says that states should co-operate in the international battle against crime. Even though the state refuses to put direct criminal sanctions to all the offences which are committed abroad, the states usually co-operate with each other in bringing perpetrators of crime to justice.
The process of extradition, therefore, evolved under the principle of comity of nations whereby one state surrenders a criminal to the other state for bringing him to justice where the offender has committed the offense. Extradition means to resolve two conflicting principles –
1. Criminal jurisdiction extends only to offences committed within the geographical boundaries.
2. The rule that frowns over a criminal going unpunished on account of jurisdictional reasons.
Extradition is considered to be a great step towards international cooperation in the suppression of crime. Extradition should be considered as an obligation by the states resulting in international solidarity in the fight against crime.
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