Updated: Mar 14, 2021
It is quite attainable for someone to flee to a different nation once committing a criminal offence in his own nation, as a result of this a nation finds itself in a troublesome scenario to penalise someone because of lack of jurisdiction, as that person has committed a criminal offence elsewhere.
Such an individual might take refuge in a state that has no jurisdiction to undertake him, or in a nation that is unable or unwilling to undertake him as a result of all the evidence and witnesses are abroad. In order to resolve this drawback the practice of Extradition is evolved by International law.
Extradition is the handing over of an alleged offender or convicted criminal who has escaped before completing his prison term by one state to another. There is no International customary law which obligates a state to extradite a person who is present on its territory and alleged to have committed a crime on the territory of another state.
It is the process by which one state upon the request of another state, surrenders to the latter a person found within its jurisdiction for trial and punishment or, just for the purpose of punishment if he had been already condemned, with regards to the offences or act which are punishable and prohibited as per the provisions of the municipal laws of the state making the request for extradition and such act or offence is committed outside the jurisdiction of the state providing asylum or the requested state.
The request for surrender is initiated against a fugitive criminal, who is formally accused of, charged with, or convicted of an extradition offence. Fugitive criminal means a person who is accused or convicted of an extradition offence within the jurisdiction of a foreign state and includes a person who, act as an accomplice or abettor in the commission of offence which is extraditable, in another nation.
Purpose of Extradition
Extradition acts as a warning to the criminals that they cannot escape penalty by fleeing to another nation. It is a process towards suppression of crime, so that their crimes might not go admonished.
It is done because it is a step towards the achievement of International co-operation in solving International problems of a social character and criminals are surrendered as it safeguards the interest of the territorial state. If a particular state adopts a policy of no extradition of criminals they would like to flee to that state only and that state would become chub for International criminals, which indeed would be dangerous for that particular state.
Ingredients for Extradition
Justice A.K Ganguly in the case of Abu Salem Abdul Qayoom Ansari v. State of Maharashtra, stated that extradition has five substantive ingredients, such as: Reciprocity, Double Criminality, Extraditable Offence, Speciality, Non- Inquiry
1. Doctrine of Double Criminality
It is an accepted principle of International law that the fugitive’s act must constitute an offence according to the laws of both countries. It means the offence must be designated a crime under the municipal law of both the states. This is known as the doctrine of double criminality.
2. Extraditable Offence
Extradition is granted once when an individual who has committed an act or offence, prohibited by the municipal laws of the requesting nation, but it should be observed that the offence or act committed is an ‘extraditable offence’. There are generally three ways in which an ‘ extraditable offence may be incorporated into the municipal laws of extradition:
The domestic law may leave the list of extraditable crimes to be provided for in the extradition treaty with a foreign state. This method was adopted by France, Great Britain and the US in the 18th and 19th century and this practice has been adopted by the Indian Extradition Act, 1962 under Sec.2(c), (i) and has been made use of in the extradition treaty with Nepal.
The domestic laws often enumerate the offences. The Extradition Act,1870 of Great Britain and the Belgian law concerning extradition may be quoted as examples of such practice. The Indian Extradition Act, 1962 adopts this method in relation to a foreign state other than a treaty state or in relation to a commonwealth country, and the 2nd Schedule gives a list of such offences.
Municipal laws outline ‘extraditable offences’ as per the provisions of imprisonment. The Indian delegation at the 3rd session of the Asian-African Legal Consultative Committee (1960), while accepting the elimination method, which defines extraditable offences by referent to the maximum or minimum penalty which may be imposed.
3. Doctrine of Speciality
Extradition depends on the co-operation of the other states in order to obtain a surrender of the suspected or convicted criminals. In the absence of a treaty, surrender of such criminals cannot be demanded as a matter of right.
The surrounding state may impose a pre-condition that the person surrendered is to be tried and punished exclusively for offences for which extradition had been requested and granted. This is known as doctrine of speciality. It is recognised in Sec.21 of the Indian Extradition Act, 1962.
In Daya Singh Lahoria v U.O.I, S.C observed the doctrine of speciality is yet another established rule of International law relating to extradition. Therefore an individual can be tried only for the offence on basis of which his extradition is granted. If the requesting state deems it desirable to try extradited fugitive for some other crime committed before his extradition, the fugitive has to be brought to the status quo ante, in the sense that he has to be returned first to the state which granted the extradition and a fresh extradition has to be requested for the latter crime.
4. Doctrine of Non-Inquiry
This doctrine is not an absolute doctrine, however in extradition law the requested State is to follow the rule of no inquiry which means that normally the requested state is not to make inquiry about the nature of the criminal justice system in the requesting nation.
Restrictions on Extradition
There are some conditions and situations, which are usually incorporated in the Extradition Acts and Treaties, within the ambit of which, surrender is restricted. Those conditions are as follows:
Extradition shall not be granted for political offences - it is a recognised principle of international law that political offenders should not be extradited. The surrender is prohibited if the fugitive criminal proves to the satisfaction of the court, before he may be produced, that the requisition or warrant for his surrender has, in fact, been made with a view to try to punish him for an offence of a political character. Political crimes are the crimes which are committed against a political organisation. For instance, treason, or attempted treason.
Lapse of time - the request for extradition should not be timed barred. It means that the extradition may be refused when the offence has become time barred under the law of either the requesting or the requested nation.
Rule of speciality - it implies that if the fugitive criminal is tried for any other offence committed by him other than the extraditable offence or the offence for which his surrender is requested from the other nation, then the requested state may bring him back to its territory. Sec.31 (c) of Extradition Act, 1962 deals with this provision.
Non Bis In Idem - this rule of general application, which opposes itself to all practices, both municipal and international law, which would subject a person to repeated harassment for the same act or acts. It stated that extradition may be refused if the offender has already been tried and discharged or punished or is still under trial in the requested state, for the offence for which extraction is demanded.
Extradition and Human Rights
There has to be a conflict between the promotion and protection of human rights and the effective control of transnational crimes, and this conflict can be resolved by expanding the network of bilateral and multilateral treaties in regards to the transnational crimes.
In case of ‘Soering v. United Kingdom The European Court of Human Rights states that ‘inherent within the whole of the Convention could be a seek for a fair balance between the demands of overall interest of the community and also the needs of the protection of the individual's fundamental rights. It’s in the interest of all the nations that criminals who flee abroad must be brought to justice, because the establishment of safe havens for the criminals would only result in danger.
The European Court of Human Rights rejected an extradition request from the United States on the ground of being violative of Art.3 of the European Convention on Human Rights which prohibits inhuman and degrading treatment of humans.
1. State of W.B v. Jugal Kishore AIR 1969 SC 1171
2. AIR (2010)
3 .(2001) 4 SCC 516 at P.521
4. 1989 11 EHRR 439
5 .VK Ahuja, Public International Law
Student of University of Petroleum and Energy Studies
Student of University of Petroleum and Energy Studies