Extradition: Critical Analysis

Extradition (Representation Only)

Extradition is the formal process of one state surrendering an individual to another state for punishment for crimes committed in the requesting country’s jurisdiction. Extradition is an act where one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to their law enforcement. It is a cooperative law enforcement process between the two jurisdictions and depends on the arrangements made between them. Besides the legal aspects of the process, extradition also involves the physical transfer of custody of the person being extradited to the legal authority of the requesting jurisdiction.

Through the extradition process, one sovereign jurisdiction typically makes a formal request to another sovereign jurisdiction (“the requested state”). If the fugitive is found within the territory of the requested state, then the requested state may arrest the fugitive and subject him or her to its extradition process.The extradition procedures to which the fugitive will be subjected are dependent on the law and practice of the requested state.

Between countries, extradition is normally regulated by treaties. Where extradition is compelled by laws, such as among sub-national jurisdictions, the concept may be known more generally as rendition. It is an ancient mechanism, dating back to at least the 13th century BC, when an Egyptian Pharaoh, Ramesses II, negotiated an extradition treaty with Hittite King, Hattusili III.

Extradition is usually not granted for:
1. political offences
2. for nationals of the requested country;
3. offences where death penalty may be imposed;
4. double jeopardy;
5. where there could be actual or potential discrimination on account of religion, race and nationality

Importance of extradition

1. It serves as a deterrent against offenders who consider escape as an easy way to subvert India’s justice system.

2. Since the sovereign constraints stop the victim state to effectively exercise their jurisdiction, extradition alone offers the legal avenue to overcome the jurisdictional hardship.

3. Punishment of the criminal in the same country in which the crime is committed provides sense of gratification and security of the public of that country.

4. Bringing back offenders from foreign countries is essential for providing timely justice and grievance redressal.

5. Extradition is step towards the achievement of international cooperation

Basic Principles Governing Extradition

1. It is usually permissible only for relatively more serious offences, and not for trivial misdemeanours or petty offences.

2. An accused is extradited for a particular offence and the country which requests the extradition is entitled to prosecute that person only for the crime for which he was extradited

3. This requires that the offence that the fugitive is alleged to have committed, should be an offence both in the requesting as well as the requested state.

4. Reciprocity in exchange of fugitives between requesting and requested State

5. Requesting state should respect the principle of proportionality between offence and sentence and punishment for that particular crime should not be excessively harsh or inhuman, in which case extradition request may be declined.

Legislative Basis for Extradition in India

1. In India, the extradition of a fugitive (accused or convicted) is governed by the Extradition Act,1962.

2. The extradition of a fugitive depends upon the treaties/conventions/arrangements entered into by India with other countries.

3. The Ministry of External Affairs is nodal government body for extradition matters in India.

Issues with extradition law

1. Less number of bilateral extradition treaties
2. No extradition treaty with Neighbouring countries
3. Poor prison conditions
4. Dual criminality
5. Double jeopardy
6. Irregularity in Investigation
7. Bilateral relations and Domestic politics
8. Concerns of human rights violation
9. Documentary requirements

Way ahead

1. India could improve its success rate by Leveraging diplomacy and bilateral negotiations to persuade countries to process requests expeditiously

2. India could consider signing international instruments, such as the UN Convention Against Torture (1984) to establish India’s zero tolerance towards torture and custodial violence.

3. Indian government must conclude extradition treaties with as many countries as possible, and make efforts to enter into more bilateral extradition relations

4. The Justice Malimath Committee report (2003) recommends setting up a Central Agency, on similar lines with the Federal Bureau of Investigation (USA), to exercise jurisdiction over crimes and offences affecting national security.

5. India could adopt the good practices of the US’ Office of International Affairs (OIA)

6. It is imperative to improve the capacity and organisational efficiencies of law enforcement agencies so that they may conduct speedy investigation.

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