Extradition- Why it need to be an obligation

As the meaning stated under Merriam Webster Dictionary, the surrender of an alleged criminal usually under the provisions of a treaty or statute by one authority (such as a state) to another having jurisdiction to try the charge means extradition. Similarly, as per Oppenheim’s International Law, seventh edn, p 631, Oppenheim defines it as 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.

Need for the concept:

            Though States refuse to impose direct criminal sanctions to offences committed abroad (except exceptional situations of extraterritorial jurisdiction), the states are usually willing to cooperate with each other in bringing perpetrators of crime to justice. It’s been one of the reasons behind the increment of the crimes ultimately turning out to be international. The one accused generally crosses the border in order to escape prosecution because according to the traditional principle of territoriality of Criminal Law, a State will not usually apply its criminal law to acts committed outside its own boundaries. Therefore, a need was felt for the governing of the rapid increase of internationalization of crime. As a result, under the principle of comity of nations whereby one State surrenders a criminal to the other state for bringing him to justice in-country in whose jurisdiction offence was committed, the concept of extradition was originated.

Generally, it is meant as a remedy to solve two of the conflicting principles where the principle of criminal jurisdiction is supposed to be extended only to offences committed within geographical boundaries; and Secondly, the rule that a crime/criminal going unpunished on account of jurisdictional reasons.

Law relating to extradition in India:

            Being a signatory member to treaties/arrangements/conventions entered by India itself and the one recognized globally, Extradition Act, 1962 came into being. Not only the act but even in the absence of any sort of treaty too, extradition may be permitted if it has the backing of the principle of reciprocity. The concept of extradition was existing even before the actual enforcement of the act itself, as even before the independence and post-independence too, Section 9 of the Indian Independence Act, 1947 and Indian Independence (International Arrangements) Order, 1947  used to govern it as per the agreement and treatied entered by the state. Now after the enactment of the act Section 2(d) of the Extradition Act deals with it.

Principles that governs Extradition:
  • Principle of relative Seriousness of the offence
  • Principle of Reciprocity in exchange of fugitives between requesting and requested State;
  • Principle of Dual Criminality 
  • Existence of prima facie case against the fugitive 
  • Principle of proportionality between offence and sentence
  • Whether the fugitive is seeking asylum from political persecution and trial for an offence of a political character
  • Possibility of a fair trial in requesting state, post surrender
  • Rule of speciality
Extradition Request:

The purpose is carried out through Mutual Legal Assistance Treaty (hereinafter “MLAT”). The authority notified under the MLAT is entrusted with the task of facilitating service of Summons/Warrants in the foreign country. In case of MLAT countries, the mode and manner of communication as laid down in MLAT is to be followed. The issuance of warrant triggers an extradition request. The request for extradition has to be supported by documents, statements which describe the identity, probable location of the person sought. The request also has to be supported by information describing the facts of the offence and procedural history of the case. In addition to this, a statement of the provisions of law describing the essential elements of the offence/punishment is also required.

            Once the extradition request is made in conformity with the provisions of the MLAT, the foreign government takes a decision on the same, broadly on the same principles as highlighted above such as dual criminality, rule of speciality et al and a judicial inquiry may also precede grant or denial of such a request.

It is realised that trial for a crime ought to be conducted in the vicinity of the crime; this not only enables easy availability of evidence, but a crime punished in the very vicinity of the original offence sends out a strong signal of deterrence and restores societal equilibrium, which the crime had upset.

Also Read: Rights Granted to Refugees and Various Provisions dealing with them in India

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