What is Extradition?

• IAS NEXT, Lucknow
• 22, Apr 2022

Reference News:-

On February 2nd 2022, the Supreme Court had sought a response from the Centre on a plea filed by Abu Salem, serving life imprisonment for his role in the 1993 Mumbai serial blasts case, contending that his imprisonment cannot extend beyond 25 years as per the terms of the extradition treaty between India and Portugal.

• Recently, the Union Home Secretary informed the Supreme Court that the Union government is bound by the commitment given to Portugal in 2002. 

Background:

In December 2002, the then Deputy Prime Minister L K Advani had given a commitment to the then Portuguese government that the maximum sentence handed out to gangster Abu Salem would not exceed 25 years. 

What is Extradition?

As defined by Hon’ble Supreme Court of India, ‘Extradition is the delivery on the part of one State to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and are justifiable in the Courts of the other State’. 

When can it be initiated?

An Extradition request for an accused can be initiated in the case of under-investigation, under-trial and convicted criminals.

• In cases under investigation, abundant precautions have to be exercised by the law enforcement agency to ensure that it is in possession of prima facie evidence to sustain the allegation before the Courts of Law in the Foreign State. 

What is the Legislative Basis for Extradition in India?

The Extradition Act 1962 provides India’s legislative basis for extradition. It consolidated the law relating to the extradition of criminal fugitive from India to foreign states. The Indian Extradition Act, 1962 was substantially modified in 1993 by Act 66 of 1993. 

Who is the nodal authority for Extradition in India?

The Consular, Passport & Visa (CPV) Division, Ministry of External Affairs, Government of India is the Central/Nodal Authority that administers the Extradition Act and it processes incoming and outgoing Extradition Requests.

An alleged offender may not be extradited to the requesting state in the following cases:

1. No treaty – In absence of a treaty, States are not obligated to extradite aliens/nationals.
2. No treaty crime – Extradition is generally limited to crimes identified in the treaty which may vary in relation to one State from another, as provided by the treaty.
3. Military and Political Offences – Extradition may be denied for purely military and political offences. Terrorist offences and violent crimes are excluded from the definition of political offences for the purposes of extradition treaties.
4. Want of Dual Criminality – Dual criminality exists when conduct constituting the offence amounts to a criminal offence in both India and the foreign country.
5. Procedural considerations – Extradition may be denied when due procedure as required by the Extradition Act of 1962 is not followed.