“He wanted to be where no one would know who he was. He wanted to escape from himself.”Oscar Wilde
Unlike Oscar Wilde’s hero, who, in the throes of an existential crisis, wants to escape from himself, there are people who are a bit more practical and want to escape, not just themselves, but the process of law and, in that process, the consequences of their actions.
Sometimes, however, the escape is bona fide and motivated by a genuine need to survive and to avoid a witch-hunt of a prosecution, which may be motivated by politics, race, caste, class or religion. History is rife with examples of one man or one time’s fugitive turning out to be another man or time’s freedom fighter. Suffice it to say: where you stand often depends on where you sit.
A good extradition law helps us make this distinction; it helps us sift the hardened fugitive from the innocent and the persecuted. It ensures that, while real offenders do not wriggle out of the clutches of law by escaping to safe havens, innocents facing persecution are given a fair inquiry and are protected from arbitrary laws and denial of their human rights.
This is the fundamental aim of the law of extradition – to sift the proverbial chaff from the grain; and, with this, let us start at the start:
1. WHAT IS EXTRADITION ?
Simply put, Extradition is a delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed or to have convicted of a crime, by the State on whose territory the alleged criminal happens to be for the time being.(1).
For instance, X commits fraud in India but, before he is apprehended or sentenced, he escapes to the US. Extradition is the process by which X would be brought back to India to face trial/sentence here.
2. Why do we need extradition laws?
Crime is increasingly turning international. As we all know, criminals frequently cross borders in order to escape prosecution/trial. In this background, states recognise that, in their own interest, they should show solidarity in repression of criminality and co-operate in the international battle against crime so that no country becomes a safe haven for criminals; countries understand that, in their mutual best interests, they ought to co-operate in ensuring that fugitives of a country are sent back to the country where the crime is committed so that the rule and majesty of law is upheld and offenders are brought to the book.
But why do this? Why not just try X in US? (in the above example). Good question. We don’t do this because : A crime is to be investigated and tried at the courts of the place where it is committed. (The jurisdictional court, as we lawyers like to call it). This is the general principle laid down in Sections 2 to 4 of the Indian Penal Code (“IPC”) and Chapter XIII of the Code of Criminal Procedure (“CrPC”).
On a more philosophical level, it is also realised that trial for a crime ought to be conducted in the vicinity of the crime itself; this not only enables easy availability of evidence, but an act punished in the very vicinity of the crime also sends out a strong signal of deterrence and ensures that a culture of impunity does not set in, and tells potential offenders, loud and clear that : there will be consequences. This is of the one of the basic aims of criminal law : ensuring that the societal equilibrium that the crime disturbed is restored (to the extent that law can do it) and a strong message is sent out.
The twin purpose of extradition law
A good extradition law not only allows extradition of genuine offenders but it also protects those facing false charges and persecution. It does this by guaranteeing:
- A due process (a broad inquiry by the requested state into the merits of the allegations with a view to ensure that the charges are not frivolous or politically motivated);
- protection of basic human rights of fugitives (should their extradition be allowed);
- protection from persecution, cruel punishment, inhuman treatment and torture.
- Extradition law seeks to achieve this delicate balance by laying down a procedure that is required to be satisfied prior to surrender.
- This includes a judicial inquiry by a Magistrate/Court, followed by a decision of the Central Government.
- There are certain guidelines as to the exercise of this power within the Extradition Act and treaty obligations with specific states.
3. BROAD FRAMEWORK OF INDIAN EXTRADITION LAW
In India, extradition of a fugitive from India to a foreign country or the other way round is covered by the provisions of the Extradition Act, 1962 (“Extradition Act”). This provides the framework for extradition both in terms of requests made by India and also those recieved by India.
The obligation to extradite, however, being something that is beyond the scope of a purely domestic law, arises out of treaties/arrangements/conventions entered-into by India with other countries.
Therefore, for a comprehensive understanding of the law of Extradition, one has to read the Extradition Act in conjunction with specific treaties/arrangements/conventions entered into with other countries.
4. WHAT REALLY IS AN EXTRADITION TREATY?
An Extradition treaty, as per Section 2(d) of the Extradition Act means ‘a treaty, agreement, or arrangement with a foreign state relating to extradition of fugitive criminals’. This is pretty straightforward. Like any other treaty, an extradition treaty is essentially a formally concluded contract between two nations agreeing upon the broad modalities of extradition of fugitives inter se.
An extradition treaty usually provides for:
- The type of offences for which extradition is permissible; (this is very important because, if the offence in question doesn’t find mention here, extradition may not be possible; in other words, for extradition to succeed, an offence has to be an ‘Extraditable Offence’);
- Specific conditions required to be satisfied before making an extradition request;
- The format of making a request, documents required to be appended, and the agencies on either side who would process that request and act as nodal agencies;
- Any special conditions/bars to extradition that the countries agree upon.
This is what an extradition treaty would usually contain. However, this is not to suggest that an extradition is permissible only when there is an extradition treaty; even in absence of a treaty, extradition may be permitted on the guarantee of reciprocity. This principle has been upheld in a number of cases. (2). More on that in the next part.
For a list of countries with whom India has an extradition treaty, click here.
If you go through the list you’ll find that many extradition treaties are pre-independence. This may lead to a question: Are these pre-independence extradition treaties valid and binding on a post independent India?
The answer is Yes. Section 9 of the Indian Independence Act, 1947 and Indian Independence (International Arrangements) Order, 1947 makes it clear that all international agreements to which India (or more appropriately – British India) was a party, would devolve upon the Dominion of India.
As far as extradition treaties generally are concerned, the provisions of Section 2(d) of the 1962 Act have been made applicable to all such treaties entered into prior to Independence.(3).
These treaties, therefore, constitute binding treaties even post Independence.
5. BASIC FUNDAS OF THE LAW OF EXTRADITION
In order for extradition to succeed:
5.1 The offence should be an ‘Extraditable Offence’ – Extradition is usually permissible only for relatively more serious offences, and not for trivial misdemeanours or petty offences. The list of offences for which extradition is permissible is laid out in the treaty itself and those offences are termed as ‘Extraditable Offences’.
For instance, the extradition treaty between US and India permits extradition only for those offences which are punishable with more than one year of imprisonment. Consequently, any offence punishable with less than one year imprisonment may therefore, not be extraditable.Article 2.1 of the Extradition treaty between US and India.
5.2 Principle of Reciprocity in exchange of fugitives between requesting and requested State;
5.3 Principle of Dual Criminality : This is perhaps the most important principle in extradition law. Simply put, 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.
To satisfy oneself as to the requirement of dual criminality, one has to juxtapose the criminal laws of both countries (i.e the requesting as well as the requested country) and ensure that the alleged act/omission is an offence in both the countries.
For instance, mental cruelty for dowry, which is an offence in India (498A of the IPC) may be a crime in India but not in US. In such a case – since there is no ‘dual criminality’, extradition may fail. (This is not to argue that it always will. For instance, if the case at hand is not a case of mere mental cruelty for dowry but also physical attack, which is a crime in both India and US; in such a case, extradition may be allowed).
This, however, has to be read with the caveat that an examination of dual criminality requires an examination of the substance of an offence and not merely the nomenclature. For instance, merely because a particular kind of ‘culpable homicide’ is characterised as ‘manslaughter’ in a given jurisdiction and not as ‘culpable homicide’ would not justify a denial of extradition request. This is because, at its essence, it is the act of killing of a person that is the crime. What’s in a name, eh? A killing by any other name would still be a killing and extradition may not be refused on such hairsplitting and technicalities.
One of primary attacks on an extradition request is the absence of ‘dual criminality’. For instance, in Quattrocchi’s case, the request for extradition was declined as the CBI, apart from not being able to make out a prima facie case, was also not able to satisfy the court as to the basic requirement of ‘dual criminality’.
5.4 Existence of prima facie case (4) against the fugitive : In order to suceed in an extradition request, the requesting state also has to establish the existence of a ‘prima facie’ case against the fugitive. This requirement acts as a safety valve to ensure, at-least on broad probabilities, the existence of a triable case against the fugitive. A magistrate usually inquires into the matter and looks into the evidence provided by the requesting state and makes a broad assessment as to the strength of the case. If the case lacks merit on the very face of it, extradition may be disallowed. However, it has to be noted that this inquiry is an inquiry only into the broad probabilities of the case and not a full blown trial. Needless to state, what qualifies as prima facie case is something that is always capable of being contested.
This standard and requirement of establishment of ‘prima facie’ case is not cast in stone. For instance, a treaty between X and Y country may require the requesting state to not only demonstrate a prima facie case but prove the commission of the offence, which is a much higher burden.
We’ll see, in the next part, as to how there have been cases where the requesting states have lost extradition battles on account of reasons such as : not recording the statement of a crucial witness correctly (or in a language that the witness does not understand), mishandling of evidence, recording coerced statements, etc.
5.5 Principle of proportionality between the offence and sentence : This is another important requirement. The requesting state should respect the principle of proportionality between offence and the sentence; in other words, punishment for a particular crime should not be excessively harsh or inhuman; if it is, then the extradition request may be declined.
For instance, the possibility of a death sentence being given to the fugitive in the requesting state usually leads to the extradition request being turned down or allowed only after an assurance from the requesting state that death penalty will not be carried out. (Usually there is a specific prohibition to that effect in the treaty/agreement/arrangement itself. See : Abu Salem’s case)
Another example may be : if X state provides for death by stoning for the offence of adultery, then Y state (to whom the request is made) may deny extradition on the ground that the offence and the punishment provided are grossly disproportionate and an extradition would not be just and fair.
5.6 Whether the fugitive is seeking asylum from political persecution and trial for an offence of a political character : This is to protect fugitives who are being hounded and persecuted on political grounds. Here the Court in the requested state enquires as to : Whether the accused is likely to suffer political persecution in the requesting country. If the answer is Yes, extradition is generally disallowed.
5.7 Possibility of fair trial in requesting state, post surrender – Before an extradition request is processed, it should be ensured that, post-surrender, the fugitive will get a fair trial in the requesting country. A lot of factors may lead to the apprehension of denial of fair trial. Persecution on the ground of race, class, political inclinations remain the commonly taken defences to extradition.
Also, in the Indian context, the provision of death penalty in India and rampant human rights violations in prisons and custodial/police torture have proved to be major hurdles for India in getting extradition. (5). A review of precedent reveals that an astonishing number of extradition requests made by India have fallen flat on this ground alone.
However, it may be noted that this examination of the guarantee of a fair trial is only a broad examination of judicial procedures in the requesting state. A threadbare scrutiny of the judicial procedures of another country is not permissble on account of what is known as the ‘the principle of non-inquiry‘, which demands that judicial process in the requesting country is not to be subjected to finicky evaluations and fairness of judicial procedure in requesting country is not to be normally questioned.(6).
The examination is only prima facie and extradition will be refused on this ground only in those cases where the process is patently contrary to the most fundamental principles of justice and there is a high risk of fugitive being prejudiced by the process of extradition.(7).
It also needs to be noted that the apprehension of denial of fair trial has to be substantiated with cogent material/evidence. In a case where a man chose to reside in USA, received his education and worked there, was not allowed to plead threat or denial of fair trial in US in order to evade extradition.(8).
In the context of extradition from UK, issues such as : possible human rights violations in jails, minority persecution, possible political motivations, have weighed heavily with UK authorities in not acceding to extradition requests made by India. (9)
5.8 Rule of specialty is another important rule. This means that when a fugitive is extradited for a particular crime, he can be tried for that crime only (and none other) in the requesting state. If the requesting state deems it desirable to try the extradited fugitive for some other offence (committed before his extradition), the fugitive has to be returned first to the State which granted the extradition and a fresh extradition has to be initiated. This is to ensure that states are not able to bypass the extradition treaty by procuring extradition for X offence (because Y offence, hypothetically, was not extraditable), but later trying the fugitive for Y offence, once the fugitive crosses the border. Such circumvention/colourable exercise of power is not permitted.
These are some of the most important overarching principles of extradition. In the next two parts, we’ll take a closer look on how the process of extradition actually plays ou : step by step; the role of different stake holders such as the inquiring magistrate, the central government, the requesting state, investigating officers and the defence counsel. We’d examine briefly the process of arrest, issuances of non bailable warrants, red-corner notices, international arrest warrants and the possibility of bail. We’d also look at a few case studies and study the defences most commonly (and successfully) taken against extradition.
1. Oppenheim’s International Law, seventh edn, p 631
2. Marie-Emmanuelle Verhoeven v. Union of India and Others (2016) 6 SCC 456
3. Marie-Emmanuelle Verhoeven (supra); Also see : Rosiline George v. Union of India, (1994) 2 SCC 80. Questions relating to Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 ICJ Reports 422; Also see : Abu Salem Abdul Qayoom Ansari v. State of Maharashtra, (2011) 11 SCC 214.
Section 2(d) of Extradition, “extradition treaty” ..includes any treaty[agreement or arrangement] relating to the extradition of fugitive criminals made before the 15th day of August, 1947, which extends to, and is binding on, India;
4. “Prima Facie” has a definite connotation in law. It is defined as “at first sight”; as “accepted as so until proved otherwise” or “on face of it” or “So far as it be judged from the first disclosure”. For a discussion on concept of ‘prima facie’ see Kamlesh Babulal Aggarwal v. UOI, 2008 SCC OnLine Del 533.
5. Her Majesty’s Knights in Sullied Armour, Bhavna Vij-Aurora, Outlook, November-14, 2016.
6. Schmidt Case(1987) 1 SCR 500
7. Abu Salem Abdul Qayoom Ansari v. State of Maharashtra & Anr. (2011) 11 SCC 214.
8. Kamlesh Babulal Aggarwal v. UOI, 2008 SCC OnLine Del 533.
9. Her Majesty’s Knights in Sullied Armour, Bhavna Vij-Aurora, Outlook, November-14, 2016.