The US government has recently submitted in a California court that Tahawwur Hussain Rana — the key accused in the November 26, 2008 Mumbai attacks — be cleared for extradition to India as his offences and legal situation fulfil all the criteria for his handover.
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’.
• 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.
Legislative basis for extradition in India
To consolidate and amend the law relating to the extradition of fugitive criminals and to provide for matters connected therewith, or incidental thereto, the Extradition Act of 1962 was enacted. 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.
Requests for extradition on behalf of the Republic of India can only be made by the Ministry of External Affairs, Government of India, which formally submits the request for Extradition to the requested State through diplomatic channels. Extradition is not available at the request of members of the public.
India is able to make an extradition request to any country. India’s treaty partners have obligations to consider India’s requests. In the absence of a treaty, it is a matter for the foreign country, in accordance with its domestic laws and procedures, to determine whether the country can agree to India’s extradition request on the basis of assurance of reciprocity.
Similarly, any country can make an extradition request to India. Extradition is possible from the non-Treaty States as Section 3(4) of the Indian Extradition Act, 1962 provides for the process of extradition with non-Treaty foreign States.
Extradition treaties are traditionally bilateral in character. Yet most of them seem to embody at least five principles, as endorsed by many judicial pronouncements and state practice in respect of domestic extradition legislation:
o First, the principle of extraditable offences lays down that extradition applies only with respect to offences clearly stipulated as such in the treaty;
o Second, the principle of dual criminality requires that the offence for which the extradition is sought be an offence under the national laws of the extradition requesting country as well as of the requested country;
o Third, the requested country must be satisfied that there is a prima facie casemade out against the offender/accused;
o Fourth, the extradited person must be proceeded against only against the offence (rule of speciality) for which his extradition was requested; and
o Finally, he must be accorded a fair trial (this is of course part of international human rights law now). Judiciary and other legal authorities are likely to apply these principles equally to situations where no extradition treaty exists.
The Government of India, in the recent years, has taken a tougher stance against economic offenders fleeing to foreign jurisdictions to evade criminal prosecution and to enjoy the fruits of their crimes.
The GOI has made concerted efforts to increase the number of countries with which it has extradition treaties including with Afghanistan, Lithuania, Malawi and Morocco.
India has extradition treaties with 50 countries and extradition arrangements with 11 countries.
Since 2002, foreign countries have extradited 75 fugitive offenders to India. Of these, 24 fugitive offenders have been extradited to India in the last five years.
PEPPER IT WITH
Fugitive Offenders Act, Interpol red notice,Mutual Legal Assistance Treaty