EXTRADITION

“The term extradition denotes the process whereby under treaty or upon a basis of reciprocity, one
State surrenders to another State at its request a person accused or convicted of a criminal offence
committed against the laws of the requesting State, such requesting State being competent to try
the alleged offender.” - STARKE

Duty to extradite: There is no universal rule of customary international law in existence which
imposes duty of extradition. In the 19th century states started entering into bilateral extradition
treaties. In the absence of extradition treaty between the States, the grant of extradition depended
purely on reciprocity or courtesy.

Object of extradition: The concept of extradition is based on the maxim ‘aut puniare aut dedere’
means that the offender must be punished by the state of refuge or surrendered to the State which
can and will punish him. Due to jurisdiction limitation and the principle of territoriality assumption of
criminal jurisdiction and also non-availability of evidence, generally the States of refuge is unable to
prosecute or punish the offender.

Extradition Crimes: As a general rule of political crimes, military offences, religious offences are not
subject to extradition. The exception of political offences has created a problem zone around it. For
question what is political offence, how and who will determine the offence the answer is the
practice of States. Generally it reveals the State of refuge is the proper forum to pronounce the
above mentioned questions.

Further State practices accepts the following two principles:

a) Principle of double criminality

b) Principle of specialty

Double criminality: This rule states that it is a condition of extradition that the crime is punishable
according to the law both of the State of asylum and of the requesting State.

Specialty: According to this principle, the requesting State is under a duty not to try or punish the
offender for any other offence than that for which he was extradited.

Rendition: If persons be extradited under an ad hoc special agreement, the process is called
“rendition”. Further it means the return of a fugitive to the State in which he is accused of having
committed a crime, by the order of the State to which he has gone. It may be interesting to mention
here that a deportation or refusal of asylum may have the effect of rendition.

Position in India: The extradition Act 1962 governs the law relating to extradition in India. At the
outset, the act makes it clear that extradition treaty is not the only basis for extradition. Extradition,
under Indian laws is possible even in the absence of extradition treaty. (Sec 2(i)(ii))

As per Sec 4 of the Act a requisition for the surrender of a fugitive criminal of a foreign state or a
commonwealth country may be made to the Central govt. Central govt has unfettered discretion on
the issue of the grant of extradition.
Sec 31 of the Act contains restrictions on surrender (exceptions for the grant of extradition) A
fugitive criminal shall not be surrendered or returned to a foreign state or a commonwealth country.

a) If the offence in respect of which his surrender is sought is of a political character.

b) If prosecution for the offence in respect of which his surrender is sought is according to the
law of that State, barred by time;
c) If he has been accused of some offence in India, not being the offence for which his
surrender or return is sought, or is undergoing sentence under any conviction in India until
after he has been discharged, whether be acquittal or on expiration of his sentence or
otherwise.
d) Until after the expiration of 15 days from the date of his being committed to prison by the
Magistrate.

Important Cases: (1) Savarkar Case (1911)

(2) Mobarak Ali Ahmad V State of Bombay (1957)