THE LAW OF EXTRADITION
Extradition laws in crux can be explained as laws governing the action of surrender of an alleged or convicted criminal by one state to another.Ā It may be defined as a law as the process by which one state on the request of another state hands over an alleged or convicted criminal found within its jurisdiction for trial or punishment in lieu of an already defined arrangement between the two states.
Extradition plays an important role in the International Battle against crime.It owes its existence to the so-called principle of territoriality of criminal law, according to which a State will not apply its penal statutes to acts committed outside its own boundaries except where the protection of special national interests is at stake. In view of the solidarity of nations in the repression of criminality, however, a State, though refusing to impose direct penal sanctions to offences committed abroad, is usually willing to cooperate otherwise in bringing the perpetrator to justice lest he goes unpunished.
There has been an evolution of law of extradition in India. The law began its journey India when it was still a colony to and has evolved to its present shape brought about in 1993. In its current scenario, the law that purports extradition is governed under the Indian Extradition Act, 1962. The basis of extradition could be a treaty between India and a Foreign Country or can be a government notification under Section 3 of the act extending to a country or countries. Under the scenario of presence of a treaty, two states typically agree in a bilateral treaty to surrender to each other fugitives charged with any offences considered extraditable under the agreement. A state seeking extradition of a fugitive (the requesting state) addresses its requests to the government of the state where the fugitive is present (the requested state), and the government invariably acts upon these requests. Domestic extradition statutes occasionally supplement substantive treaty law, but in general they merely specify extradition procedure.
The question that is generally put across is what actions can be taken when a fugitive from another nationality is found in India by the Police. The various course of actions are:
- Action can be taken under Article 34(b) of the Indian Extradition Act, 1962. Ā This act provides procedure for the arrest and extradition of fugitive criminals under certain conditions, which includes receipt of the request through diplomatic channels ONLY and under the warrant issued by a Magistrate having a competent jurisdiction.
- Section 41(1)d of the C.r.P.c also gives a course of action to be taken up. The police can arrest the fugitive without a warrant. But they have compulsorily have to inform the Interpol wing for further processing of the matter till the Government of India to take further decision on Extradition.
- If the fugitive is an Indian National who has committed a crime elsewhere abroad. Section 188 or the C.r.P.c is put to course.
When India and situations of Extradition are discussed, a number of names ring a bell. The extradition of Nadeem for involvement in Gulshan Kumar Murder Case and the demand of Dawood for the Bombay Blasts in 1992 for which a positive response is still awaited. One of the most tragic cases was the case of Rajan Pillai who was charged of Breach of trust and fraud by the Singaporean Government. He though managed to put a stay on his extradition and took refuge in Tihar Jail. He later died of a liver ailment before he could be sent back to Singapore.
Abu Salems Extradition
The extradition case of Abu Salem has been one of the landmarks for India. He was extradited to India from Portugal after his arrest in Lisbon along with girlfriend Monica Bedi. The process of extradition was time consuming as a lower court in portugal had cancelled it. He currently resides in Arthur Jail.
When Abu Salem entered the US, they tipped off the Federal Bureau of Investigation (FBI), which tailed him. Abu managed to get out of the US and entered Portugal through Lisbon after rigging up his papers. They went on to tip the Lisbon authorities that immediately seized the Indian gangster. And, the tables turned. Abu Salem found himself on the receiving end and, the Mumbai police, on their part had, scores to settle with the gangster whose extradition from Portugal is shrouded with as much controversy as his role in the city’s blackest blasts.
There is no extradition treaty between India and Portugal. The absence of such a treaty initially created legal difficulties. Therefore this becomes an area where political considerations play a prominent role, unless there is an applicable bilateral extradition treaty.Indeed, a country does not need a treaty to decide that a fugitive found within its jurisdiction should be extradited to another country that requests extradition. It can, if it wants to, take that decision without any treaty obligations whatsoever, even by exercise of executive discretion. Where there is a bilateral extradition treaty, the states party to it normally goes by its terms.Ā The process of extradition usually involves interposition of the Judiciary in both countries, and this has permitted the emergence of some discernible principles of international law governing extradition
As the question of surrendering an alleged criminal to the demanding State always involves the question of human rights, therefore the essence of maintaining the sanctity of the agreement shall beĀ attributed to the concept of human rights involved in extradition laws, which lays emphasis on the law of the country in which the offender seems to be at the time of extradition. Extradition laws thus put forth a valuable stature in the international criminal justice as a whole.
– Surbhi Jaju, IIIrd Year, National Law Institute University, Bhopal-