Author: Vanshika Vaishalik

Introduction

A person who has been accused or convicted of a crime is transferred to another nation with jurisdiction over the offense through the legal process of extradition. The term originates from the Latin words ex (meaning “out”) and tradere (meaning “to deliver”). This principle operates on the maxim aut dedere aut judicare either extradite the accused or prosecute them within the territorial jurisdiction where they are found.

In a world increasingly interconnected by trade, technology, and travel, crimes such as terrorism, financial fraud, cybercrime, drug trafficking, and human trafficking often cross national boundaries. Extradition ensures that offenders cannot escape justice simply by fleeing to another jurisdiction.  As a result, it is essential to international law, encouraging collaboration between states and defending the rule of law globally.

India recognising the importance of this principle has entered into over 50 extradition treaties and additional bilateral arrangements with multiple countries. However, the process is complex and often entangled in legal, political, and diplomatic challenges, particularly when questions of human rights, procedural fairness, and dual criminality arise.

Legislative Framework of Extradition in India

The Extradition Act, 1962

The principal legislation governing extradition in India is the Extradition Act, 1962, which provides a comprehensive procedural structure for both treaty-based and non-treaty extradition. The Act defines an “extradition offence,” prescribes the procedure for inquiries by magistrates, and outlines the role of the Central Government in approving or refusing extradition requests.

Under Section 3, extradition can occur either pursuant to a treaty or, in the absence of one, based on an assurance of reciprocity from the requesting state. The Act also incorporates safeguards to protect the rights of the individual sought for extradition, including exceptions for political offences, protection against double jeopardy, and compliance with human rights standards.

International Treaties and Conventions

India is a signatory to several multilateral conventions such as the UN Convention against Transnational Organized Crime and conventions on drug trafficking and terrorism which supplement bilateral agreements and provide frameworks for mutual legal assistance. These treaties underscore the shared commitment of nations to combat global criminal activity.

Core Principles of Extradition

1. Dual Criminality

The principle of dual criminality requires that the offence for which extradition is sought must be considered a crime under the laws of both the requesting and requested states. This principle ensures legal compatibility and fairness, preventing extradition for acts that are not recognised as criminal by the surrendering nation.

Challenges:

Modern crimes such as cyber fraud, cryptocurrency scams, and environmental offences often lack uniform legal definitions across jurisdictions. This disparity complicates the assessment of whether dual criminality is satisfied, leading to prolonged litigation and diplomatic negotiations.

Case Example:

In the high-profile extradition of Vijay Mallya, who owes over ₹6,000 crore to Indian banks, the Westminster Magistrates’ Court in London in 2018 upheld India’s request after confirming dual criminality. Similarly, the extradition of Nirav Modi, accused in the ₹11,000 crore Punjab National Bank scam, was ordered by a UK court in 2021 after confirming that the alleged acts constituted offences under British law as well.

2. Principle of Speciality

The principle of speciality limits prosecution in the requesting state strictly to the offences for which extradition was granted. This prevents misuse of the process to try an individual for unrelated or politically motivated charges after surrender.

Judicial Approach in India:

•In Daya Singh Lahoria v. Union of India (2001), the Supreme Court held that conditions imposed by the foreign state, including the principle of speciality, must be strictly observed.

•In Abu Salem Abdul Qayoom Ansari v. State of Maharashtra (2011), the Supreme Court quashed additional charges against Abu Salem as they went beyond the scope of his extradition from Portugal.

International Reference:

In Soering v. United Kingdom, the European Court of Human Rights underscored that extradition must respect both human rights and the principle of speciality, particularly where there is a risk of severe punishment like the death penalty.

3. Political Offence Exception

If the offense is political in nature, extradition may be denied in accordance with Section 31(b) of the Extradition Act. The rationale is to protect individuals from political persecution and to prevent misuse of extradition for suppressing dissent.

Judicial Perspective:

In Daya Singh Lahoria, the Supreme Court observed that not all offences against the state are political; the nature, motive, and degree of violence must be considered to determine whether the political offence exception applies.

Challenges:

This principle is often misused by fugitives who seek to portray serious criminal acts such as terrorism or violent uprisings as political to avoid extradition. Conversely, states may seek extradition under ordinary criminal charges while pursuing politically motivated prosecutions.

Extradition Procedure in India

Usually, the procedure starts with a formal request from the other nation, supported by proof of the claimed offense. The Ministry of External Affairs forwards the request to the Ministry of Home Affairs, which consults investigative agencies like the CBI or Enforcement Directorate to verify its merits.

If deemed appropriate, the matter is referred to a magistrate under Section 5 of the Extradition Act for inquiry. The magistrate investigates if the person is the subject of a prima facie case. If satisfied, a report is sent to the Central Government, which makes the final decision to issue an order of surrender.

Grounds for Refusal:

• Offence is political in nature

• Violation of dual criminality principle

• Risk of persecution or torture

• Double jeopardy

• Lack of assurance regarding rule of speciality

Evolving Jurisprudence: Landmark Judgments

Case- Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Calcutta (1955)

The Supreme Court held that extradition is largely an executive function but must be exercised within the boundaries of natural justice and public interest.

Case- State of West Bengal v. Jugal Kishore More (1969)

The Court ruled that magistrates’ inquiries are limited to determining prima facie evidence and that extradition proceedings are distinct from full-fledged criminal trials.

Case-T.N. Khosla v. R.L. Khanna (1979)

The Delhi High Court clarified that financial crimes cannot be disguised as political offences to invoke the political offence exception.

Emerging Challenges in Extradition

1. Limited Treaty Network:

India lacks formal extradition treaties with several key jurisdictions, creating safe havens for fugitives.

2. Procedural Delays:

Extradition cases often span years due to complex legal reviews, appeals, and diplomatic negotiations.

3. Human Rights Concerns:

Foreign courts have expressed reservations about India’s prison conditions and judicial delays, impacting high-profile cases such as Ravi Shankaran (Navy War Room Leak case).

4. Dual Criminality Issues:

Extradition is hampered by disparities in legal definitions of crimes, particularly in new areas like financial fraud and cybercrime.

Recommendations for Strengthening Extradition Framework

• Expansion of Treaty Network: India should negotiate more bilateral treaties and participate actively in multilateral conventions.
• Judicial Reforms: Streamlining procedures and ensuring speedy trials in extradition cases to meet international standards.
• Human Rights Compliance: Improving prison conditions and trial timelines to address foreign courts’ concerns.
• Enhanced Diplomatic Engagement: Establishing specialised teams to handle high-profile extradition requests and foster international cooperation.
• Legal Harmonisation: Updating Indian extradition laws to reflect emerging crimes like cyber fraud, money laundering, and digital currency offences.

Conclusion

Under the direction of the Extradition Act of 1962 and enhanced by court rulings, India’s extradition legislation has undergone substantial change. Landmark judgments have reinforced crucial principles dual criminality, speciality, and protection against political persecution while balancing state sovereignty with international obligations.

However, practical hurdles ranging from procedural delays and human rights concerns to geopolitical sensitivities continue to challenge India’s ability to bring fugitives to justice efficiently. Strengthening treaties, harmonising domestic laws with global standards, and improving procedural fairness are essential to ensure that extradition remains a robust tool for combating transnational crime in an increasingly interconnected world.