Extradition

Last verified on Friday 20th May 2022

Extradition: India

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All questions

1. Are extradition proceedings regulated by domestic legislation, treaties or both?

India

The extradition proceedings in India are covered by both domestic legislation and bilateral treaties. The domestic legislation governing the extradition process is the Extradition Act 1962 (the Extradition Act). The Extradition Act, together with the applicable bilateral treaties, arrangements and international covenants govern the process, terms and conditions of extradition. The Extradition Act provides for extradition of fugitive criminals to foreign states or extradition of fugitive criminals from foreign states with extradition arrangements or treaties with India. In the case of foreign states without any express extradition arrangements or treaties with India, the extradition process is governed by the Extradition Act.

In addition, the Ministry of External Affairs (MEA) has issued a comprehensive set of guidelines titled ‘Guidelines on Mutual Legal Assistance in Criminal Matters’ (Guidelines), which outlines the rules and procedures for submitting an extradition request.

The Guidelines can be accessed at https://static.pib.gov.in/WriteReadData/userfiles/ISII_ComprehensiveGuidelinesMutualLegalAssistance_17122019.pdf.

The Extradition Act is available at http://www.mea.gov.in/Uploads/PublicationDocs/153_The-Extradition-Act-1962.pdf.

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2. Is there a central register of extradition treaties that your state has entered into?

India

India currently has extradition treaties with 48 countries.

India has also entered into extradition arrangements with 10 countries. These arrangements have been entered into pursuant to section 3(4) of the Extradition Act, which provides that in the absence of a bilateral extradition treaty, the central government may, by notified order, treat any Convention to which India and a foreign state are parties, as an extradition treaty made by India with that foreign state, providing for extradition in respect of the offences specified in that Convention.

The register of treaties and arrangements entered into by India are available at https://mea.gov.in/leta.htm.

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3. Do special extradition arrangements apply to certain foreign states, for example states that are geographically proximate, or politically, legally or economically closely linked?

India

India does not have a special extradition arrangement with any foreign country based on geographic proximity or on account of political, legal or economic linkages. Having said that, in the recent past, India has benefitted from its political linkages with certain countries in processing transfer of fugitive criminals even in absence of an express extradition arrangement.

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4. Is extradition possible to states that have no bilateral or multilateral extradition treaty with your state if they are party to an international convention?

India

Yes, extradition of a fugitive criminal is possible where a foreign state does not have a pre-existing extradition treaty (whether bilateral or multilateral) with India. Section 3(4) of the Extradition Act provides that in the absence of a bilateral extradition treaty between India and any foreign state, the central government may, by notified order, treat any convention to which India and a foreign state are parties, as an extradition treaty made by India with that foreign state, providing for extradition in respect of the offences specified in that Convention.

Accordingly, where a foreign state has no bilateral or multilateral extradition treaty with India, the foreign state may request the Indian government to treat an international convention that both India and the requesting country have signed as the governing extradition treaty.

For example, extradition arrangements with Italy and Croatia have been entered into by India owing to the fact that India, Italy and Croatia are parties to the 1988 UN Convention against Illicit Traffic in Narcotics Drugs and Psychotropic Substances, and extradition pursuant to these arrangements are confined to crimes related to this Convention (ie, to illicit trafficking in narcotics, drugs and psychotropic substances).

In addition, extradition may be possible where the international convention provides for it. For instance, in the case of Abu Salem Abdul Qayoom Ansari, an accused person in the Bombay terrorist bombings in 1993, India was able to secure the extradition of the fugitive criminal from Portugal back to India. Although Portugal and India did not have an extradition treaty at the time, the request for extradition was made by India relying on the assurance of reciprocity in international law, and in particular, the International Convention for Suppression of Terrorist Bombings, to which Portugal and India are signatories. The Convention provides for extradition for certain extraditable offences where the state parties to the Convention do not make extradition conditional on the existence of a treaty.  

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5. Is extradition possible to states that are not extradition treaty partners as an ad hoc arrangement?

India

Extradition requests from non-treaty partners are possible where India has entered into a special extradition arrangement, pursuant to section 3(1) of the Extradition Act. Under powers vested in section 3(1) India has entered into extradition arrangements with foreign states agreeing to the applicability of the Extradition Act.

Further, section 3(4) of the Extradition Act provides that in the absence of a bilateral extradition treaty between India and any foreign state, the central government may, by notified order, treat any convention to which India and a foreign state are parties, as an extradition treaty made by India with that foreign state, providing for extradition in respect of the offences specified in that Convention. Accordingly, these extradition arrangements may allow extradition for specific offences only.

In addition, ad hoc requests may be made on the basis of an ‘assurance of reciprocity’. The Guidelines issued by the Indian Ministry of External Affairs provide that where no bilateral or multilateral treaty, arrangement or international convention exists, a request for mutual legal assistance (including extradition) may be made on the basis of assurance of reciprocity.

An assurance of reciprocity is a promise that the requesting country will provide the requested country with the same type of assistance in the future, should the requested country ever be asked to do so. It is a stand-alone promise and may be used for ad hoc extradition requests in the absence of any treaty or arrangement between the foreign state and India.

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6. For which offences is extradition from your state allowed?

India

In the case of a foreign state with which India has an extradition treaty, the extraditable offence is typically provided in such a treaty. Illustratively, the extradition treaty between India and France provides that an offence punishable by a term of imprisonment for a period of at least two years is an extraditable offence.

In the case of foreign states without any extradition treaty or arrangement with India, any offence that shall be punishable with imprisonment for a term that shall not be less than one year under the laws of India or of a foreign state may be considered an extraditable offence.

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7. Is there a requirement for double (dual) criminality? How is this assessed?

India

Yes, dual criminality forms the basis of most extradition treaties of India with foreign states. In terms of the principle of dual criminality, an extradition request can be entertained by a state only if the conduct for which the extradition of the fugitive criminal is sought is a punishable offence in the requesting state as well as the requested state. Both the countries must criminalise same or similar conduct and the nomenclature of the offence or the punishment for such offence need not be identical. The ‘dual criminality’ is assessed based on examination of the conduct and the essential ingredients of the offences in both countries.

For instance, India is currently seeking the extradition of Vijay Mallya from the UK. Accordingly, when deciding on the extradition request, courts in the UK had to be satisfied that the principle of dual criminality had been met, in accordance with the terms of the India–UK Extradition Treaty. Mallya has been charged by the Indian authorities under section 420 of the Indian Penal Code, 1860 for the offence of ‘cheating and dishonestly inducing delivery of property’. The UK offences relating to fraud and embezzlement criminalise similar acts. Accordingly, since the acts committed by Mallya are considered offences in both the India and UK (albeit using different nomenclature), the principle of dual criminality is satisfied in this case.  

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8. How would your state deal with a request that includes an offence for which extraterritorial jurisdiction is claimed?

India

In cases where a fugitive criminal cannot be returned or surrendered to a foreign state, the central government of India may take appropriate steps to prosecute such fugitive criminals in India. An extraditable offence committed by any person in a foreign state shall be deemed to be an offence committed in India and such person shall be liable to be punished in India.  

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9. What must be included as part of a valid extradition request made by the foreign state?

India

There is no universal format for making an extradition request, as it depends largely on the terms of the bilateral treaties or arrangements. The Guidelines provide a set of rules for making an extradition request, such as that the request should be in writing unless it is urgent, and that it should contain the nature of investigation, prosecution or proceedings, the degree of confidentiality required, and any time limit within which the request should be executed, etc.

The extradition request and all the supporting documents should be provided in English and wherever necessary, the request and the supporting documents should be translated into the language required by the requested state. The translated copies (if any) should be duly certified by the translator and authenticated by the concerned Investigating Agency.

The main points to be covered in an extradition request are:

  • the extraditable nature of the offences as per the Extradition Act, bilateral treaty, arrangement or international conventions, as applicable;
  • that the offences do not fall under the grounds for refusal of extradition contained in section 31 of the Extradition Act;
  • the existence of dual criminality;
  • assurances by the requesting state (for instance, if the death penalty is outlawed in the state where the fugitive criminal is present, the requesting state may assure the requested state that on extradition, the punishment will not include the death penalty); and
  • that the offences are not barred by laws of limitation.

The Guidelines (Part III: Form, Content and Language of Request) can be accessed at https://static.pib.gov.in/WriteReadData/userfiles/ISII_ComprehensiveGuidelinesMutualLegalAssistance_17122019.pdf

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10. What are the stages of the extradition process?

India

The extradition of fugitive criminals in India is done as per the provisions of the Extradition Act. In the case of foreign states with extradition treaties or arrangements with India, the extradition process shall also be governed by the provisions of such treaties or arrangements. The Ministry of Home Affairs is the central authority or nodal agency for extradition of fugitive criminals in India.

Extradition process in relation to a foreign state with an extradition treaty/ arrangement with India

Extradition of fugitive criminals from India to a foreign state
  • Extradition request: A request for surrender is made to the central government through the diplomatic representative of the requesting country in Delhi, or through diplomatic channels or any settled mode of communication between the states. When the request is made, the central government if it thinks fit may issue an order to the magistrate in the relevant jurisdiction to inquire into the offence.
  • Issue of arrest warrant: On receiving the order from the central government, the magistrate shall issue a warrant for arrest of the fugitive criminal based on the information and evidence presented on record. Thereafter, the magistrate reports the issue of the warrant to the central government along with the copies of the information and evidence on record.
  • Inquiry by a magistrate: When the fugitive criminal is brought before the magistrate, the enquiry shall be done in the same manner, as if the case were triable by the local court. The magistrate shall take note of the evidence presented in support of extraditing the fugitive criminal to the foreign state including any evidence to show that the offence of which the fugitive criminal is accused or has been convicted is an offence of political character or is not an extradition offence.

The exhibits and depositions (whether received or taken in the presence of the person against whom they are used or not) and copies thereof and official certificates of facts and judicial documents stating facts may, if duly authenticated, be received as evidence.  

If the magistrate is of the opinion that a prima facie case is made out in support of the requisition of the foreign state, he or she may commit the fugitive criminal to prison to await the orders of the central government and shall report the result of his inquiry to the central government, and shall forward together with such report, any written statement that the fugitive criminal may desire to submit for the consideration of the central government.

However, if no prima facie case is made out for the arrest of the fugitive criminal according to the magistrate, the fugitive criminal shall be discharged.

  • Decision of surrender or return of the fugitive criminal: After receiving the report from the magistrate, if the central government is of the opinion that the fugitive criminal should be surrendered to the requesting state, it may issue a warrant for the custody and removal of the fugitive criminal and for his delivery at a place and to a person to be named in the warrant.

However, if the fugitive criminal awaiting surrender has not been conveyed out of India by the foreign state after such committal, the High Court (on application by or on behalf of the fugitive criminal) may order such fugitive criminal to be discharged unless sufficient cause to the contrary is shown.

  • Apprehension and return or surrender of fugitive criminals in a case where India has an extradition arrangement with a foreign state for such apprehension and return: In addition to the above procedures, in a case where India has extradition arrangements with certain states for apprehension and return of fugitive criminals, a fugitive criminal may also be apprehended in India based on an endorsed warrant or a provisional warrant.
  •  Endorsed warrant: If a warrant for the apprehension of a fugitive criminal has been issued by any foreign state with which India has an extradition arrangement for apprehension and surrender and such fugitive criminal is (or is suspected to be) in India, the central government may endorse such warrant if it is satisfied that the warrant was issued in the foreign state by a person having lawful authority to issue such warrant. The warrant endorsed by the central government may be sufficient to apprehend the person named in the warrant and produced before the magistrate for inquiry.
  •  Provisional warrant: Any magistrate may issue a provisional warrant for apprehension of a fugitive criminal (of any foreign state with which India has an extradition arrangement for apprehension and surrender) who is (or is suspected to be) in India or is on his way to India based on information that would justify the issuance of such warrant. Post issuance of such warrant, the magistrate shall submit a report to the central government about the issuance of the warrant. The person apprehended on provisional warrant may be remanded to judicial custody from time to time (not exceeding seven days at any one time) till production of an endorsed warrant. Alternatively, the central government may discharge the person apprehended on the provisional warrant.

The magistrate before whom the person apprehended is produced, may conduct an inquiry into if the endorsed warrant is duly authenticated and the offence of which the person is accused or convicted is an extradition offence. The magistrate shall forward a report on the inquiry to the central government and shall also forward any written statement that the fugitive criminal may desire to submit to the central government. If the magistrate is satisfied, he or she shall commit such person to prison and shall send a report to the central government about such committal. If the magistrate is not satisfied on the above two points, he or she may detain such person in custody or release him or her on bail until further instructions from central government. At any time after committal of the fugitive criminal to prison, the central government may issue a warrant for custody and removal of the fugitive criminal to the foreign state.

Extradition of fugitive criminals from a foreign state to India

A request for surrender or return of a fugitive criminal to India may be made by the central government to a diplomatic representative of the foreign state in Delhi or to the government of that state through diplomatic channels or any other settled mode of communication between the states.

A warrant for arrest of the fugitive criminal in the foreign state may be issued by the magistrate in the format prescribed by the foreign state. Under such a warrant, the fugitive criminal may be brought into India and delivered to the proper authority to be dealt with according to law.

However, in cases where any person accused or convicted of an offence, which, if committed in India would be an extradition offence, is surrendered or returned by a foreign state, such person shall not, until he or she has been restored or has had an opportunity of returning to that state, be tried in India for an offence other than:

  • the extradition offence in relation to which he or she was surrendered or returned;
  • any lesser offence disclosed by the facts proved for the purposes of securing his or her surrender or return other than an offence in relation to which an order for his or her surrender or return could not be lawfully made; and
  • the offence in respect of which the foreign state has given its consent.

Extradition process in relation to a foreign state without an extradition treaty/ arrangement with Indi

In the absence of a formal treaty/arrangement/convention, ad hoc requests may be made on the basis of an ‘assurance of reciprocity’. The Guidelines issued by the Indian Ministry of External Affairs provides that where no bilateral or multilateral treaty, arrangement or international convention exists, a request for mutual legal assistance (including extradition) may be made on the basis of assurance of reciprocity.

An assurance of reciprocity is a promise that the requesting country will provide the requested country with the same type of assistance in the future, should the requested country ever be asked to do so. It is a stand-alone promise, and may be used for ad hoc extradition requests in the absence of any treaty or arrangement between the foreign state and India.

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11. If an initial political decision is required, what factors can be considered?

India

The extradition proceedings involve both the administrative wing as well as the judicial wing. The extradition request is initially received by the administrative wing of the central government, ie, the Ministry of External Affairs. If the central government deems fit, it may issue an order to the judicial magistrate to conduct an inquiry and submit a report. Typically, the nature of the offence and the prima facie validity of the request are examined at this stage. The Extradition Act does not provide for any specific factors that are to be considered by the central government at the time of ordering an inquiry by the magistrate.

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12. Is provisional arrest, before the extradition request is received, possible?

India

The Extradition Act provides for provisional arrest of a fugitive criminal based on an urgent request from a foreign state for the immediate arrest of such criminal. Typically, such a request is addressed to the foreign state to the central government, which may request the competent judicial magistrate to issue the warrant for arrest. The fugitive criminal who has been provisionally arrested shall be discharged upon expiry of 60 days after the arrest if no formal request for surrender or return of such fugitive criminal is received within such period. 

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13. Must a domestic arrest warrant be issued or can an Interpol red notice be used to carry out a provisional arrest?

India

For the provisional arrest of a fugitive criminal, an arrest warrant is required to be issued by a competent magistrate in India. The Supreme Court of India, in the case of Bhavesh Jayanti Lakhani v State of Maharashtra (2009) 9 SCC 551, has held that an Interpol red notice is not a warrant of provisional arrest. Hence, an Interpol red notice may not in itself be sufficient to provisionally arrest a fugitive criminal in India. Typically, police authorities intercept and/or detain a fugitive criminal should his name appear in an Interpol red notice and then, through the central government, they may reach out to the state that sought the issuance of the Interpol red notice intimating them of the detention of the fugitive criminal and seek instructions. Based on the instructions received, the police authorities may produce the fugitive criminal before the competent court seeking warrant of arrest. The court may thereafter make a preliminary inquiry to decide if such warrant of arrest should be issued and the fugitive criminal remanded in custody.

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14. What is required to apply for a domestic extradition arrest warrant?

India

The arrest warrant in the case of a fugitive criminal may be issued in the following cases:

  • Pursuant to request for surrender of a fugitive criminal received from a requesting state, the central government may direct a court to enquire if such fugitive criminal can be extradited to the requesting state. For the purposes of such enquiry, the magistrate may issue a warrant of arrest.
  • Where it appears to the court that a person within the local limits of its jurisdiction is a fugitive criminal, it may issue a warrant for the arrest of such person provided that the magistrate deems fit that the issuance of a warrant is required. Thereafter, the magistrate reports about issuance of such warrant to the central government.
  • Separately, upon receipt of a request from a foreign state for the immediate arrest of a fugitive criminal, the central government may request the court to issue a provisional warrant for arrest of the fugitive criminal and the court may issue a provisional warrant for the arrest of such person pursuant to the receipt of such request from the central government.

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15. What rights does the requested person have while under arrest?

India

The arrested fugitive criminal shall have, among others, the rights:

  • to obtain legal counsel and to meet legal advisers without anyone else being present;
  • to be housed separately from ‘convicted criminal prisoners’;
  • to maintain themselves and to receive food, clothing, bedding or other necessaries from private sources at appropriate times; and
  • to have access to visits from persons with whom the prisoner would like to communicate, at specified times and under proper restrictions.

Additionally, the fugitive criminal who is arrested shall be entitled to basic necessities and medical facilities, as may be required.

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16. Is bail available in extradition proceedings?

India

Yes, bail is available to persons who are detained under the Extradition Act 1962. A fugitive criminal may apply for anticipatory bail (which is sought in anticipation of an arrest) or regular bail (which is sought after an arrest has been made). 

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17. If so, what are the factors that a court will take into account in deciding whether to grant bail?

India

For the grant of bail under the Extradition Act, the offence for which the fugitive criminal is accused or convicted in a foreign state shall be treated as if such offence were committed in India.

Under Indian law, bail is the rule and retaining the accused in custody is the exception. Offences under Indian law are classified as either bailable or non-bailable, typically based on the seriousness of the offence. In the case of a bailable offence, bail is available as a matter of right to the accused (subject to payment of the bail amount). In the case of a non-bailable offence (which are generally more serious offences), bail is granted only at the discretion of the court.

Typically, the court will consider the following factors in determining the grant of bail to the person under custody:

  • nature of the accusation, and the seriousness and gravity of the offence;
  • the role of the accused in the commission of the offence;
  • the nature of the evidence and the chances of accused tampering with the evidence or influencing the witnesses;
  • the likelihood of the accused person fleeing from justice;
  • the socioeconomic background and status of the accused within society (ie, whether the accused has deep roots in society);
  • the health, age and gender of the accused person;
  • the previous criminal record of the accused person, including any previous convictions for non-bailable offences;
  • the possibility of repetition of the same or similar offences by the accused person upon enlargement on bail; and
  • the access of the accused to legal counsel to adequately prepare a defence.

For offences that are punishable by life imprisonment or death, bail is usually not granted where there are reasonable grounds to believe that the accused actually committed such offence.

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18. Can the court impose conditions when granting bail? What conditions can be, and usually are, imposed?

India

Yes, courts have the power to impose conditions when granting bail. As the power to grant bail and impose conditions is discretionary, courts may determine the conditions on a case-by-case basis in the interests of justice.

Typically, the conditions imposed on any accused person at the time of grant of bail may include the following:

  • the execution of a personal bond (which is a personal guarantee) of an amount to be decided by the court. alternatively, the court may require the accused person to deposit a certain amount with the court;
  • the provision of sureties to secure the bond executed by the accused person. if the accused person violates the bail conditions, the surety will be required to deposit the amount of the personal bond in court;
  • undertaking that the accused person shall not commit any offence while he or she is on bail;
  • requiring the accused person to attend court in person, as and when directed by the court;
  • requiring the accused person to deposit his or her passport with the police and/or to remain within the jurisdiction of the court or not travel outside the jurisdiction of the court without prior permission of the court; and
  • requiring the accused person not to directly or indirectly make any inducement, threat or promise to any witness to as to discourage him or her from disclosing such facts to the court or to any police officer, or otherwise tamper with the evidence in any manner.

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19. What bars can be raised to resist extradition?

India

Section 31 of the Extradition Act sets out the following circumstances under which a fugitive criminal shall not be surrendered or returned to a foreign state:

  • The offence is of a political character, or he or she is able to prove to the satisfaction of the magistrate or court before whom he or she may be produced, or to the satisfaction of the central government, that the requisition for his extradition has, in fact, been made with a view to try or punish him or her for an offence of a political character. A list of offences that would not be of a ‘political character’ are contained in a Schedule to the Extradition Act.
  • Where the prosecution of the offence for which extradition is sought would be barred by time according to the law of the requesting foreign state.
  • Where the fugitive offender has been accused of an offence in India other than the offence for which extradition is sought, or where the fugitive offender is undergoing any sentence in India. After the fugitive offender has been discharged from his sentence (whether by acquittal or due to expiration of the sentence), he or she may be extradited.
  • A minimum of 15 days from the date on which the magistrate committed the fugitive offender to prison must have passed.

The above bars to extradition are mandatory in that if one of the above applies, the fugitive offender shall not be extradited. However, there may be various other grounds that can be raised to resist extradition, depending on the terms of the relevant extradition treaty or arrangement with the foreign state in question. Typically, the following considerations may also be grounds for refusing an extradition request:

  • if the person has already been tried and acquitted, pardoned or undergone punishment with respect to the offence for which his or her extradition is sought;
  • the person is accused or convicted for a military offence; or
  • if there are substantial grounds to believe that the person’s extradition is sought for the purpose of prosecuting or punishing the person on account of his or her sex, race, religion, nationality, or political opinions, or that the person’s position may be prejudiced for any of those reasons.

These grounds will have to be supported by relevant evidence, which must be duly authenticated. The burden of proof required to be discharged is that the magistrate considering an extradition request should be satisfied that either a prima facie case has been made out by the evidence that warrants the fugitive criminal being extradited, or that a prima facie case has not been made out in support of the extradition request by the requesting state.

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20. Does your state extradite its own nationals and residents?

India

India does not bar the extradition of its own nationals. However, the extradition of Indian citizens depends on the bilateral or multilateral treaty, or arrangement, with the foreign state in question. Several treaties with foreign states preclude the extradition of their nationals to India, in which case India will also not extradite its nationals to those foreign states.

For instance, the India–UAE Extradition Treaty provides that nationals of the contracting states shall not be extradited to the other contracting state, on the condition that the requested state prosecute the fugitive criminal in domestic proceedings. On the other hand, both the India – US and India–UK Extradition Treaties specify that extradition shall not be refused on the basis that the fugitive criminal is a national of the requested state. 

If the fugitive criminal were to either give up his Indian nationality or acquire it after the extraditable offence was alleged to be committed, this may affect the extradition of the fugitive criminal. However, Indian law on this issue is not yet settled, and it is likely that in such scenarios, political considerations may play a greater role in determining whether extradition is carried out. It is worth noting in this context that India does not permit dual nationality.

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21. Are potential breaches of human rights after extradition considered in the extradition process?

India

The Extradition Act does not itself provide for any consideration to be given to potential breaches of human rights. However, the Supreme Court of India has held that human rights should be taken into account and balanced against the need to tackle transnational crime when determining extradition cases. In particular, the right to a fair trial should be taken into account.

Separately, if the bilateral treaty or arrangement between India and the foreign state in question provides for consideration to be given to potential breaches of human rights, this factor will be taken into account at the time of making a decision on the extradition request.

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22. Can a person consent to extradition, and what is the procedure? Is consent irrevocable?

India

The Extradition Act does not provide that a fugitive offender may consent to extradition, and therefore does not provide for a special procedure to be followed in such cases. That said, when a fugitive offender appears or is presented before a magistrate, he or she may choose not to contest the extradition request.

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23. Is there a speciality protection? How is it provided? Does it apply if a person consents to extradition?

India

Section 21 of the Extradition Act contains a speciality provision. It provides that when a person is extradited from a foreign state to India, such person shall only be tried in India for the offence in relation to which he or she was surrendered or returned to India, or any lesser offence disclosed by the facts proved for the purposes of securing his or her surrender or return, or any other offence for which the foreign state has given its consent to try the fugitive criminal.

Similarly, section 31(c) of the Act provides that a fugitive criminal shall not be extradited by India unless the law of the requesting foreign state contains a provision, or unless the foreign state has agreed under the extradition treaty or arrangement, that the fugitive criminal shall not be tried in that foreign state for an offence other than the one for which he or she was surrendered or returned, or any lesser offence disclosed by the facts proved for the purposes of securing his surrender or return, or an offence in respect of which the central government has given its consent.

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24. If there is a political decision at the end of the extradition process, what factors can be considered?

India

Extradition proceedings involve both an administrative as well as the judicial element. The extradition request is initially received by the administrative wing of the central government  (ie,  the Ministry of External Affairs). If the central government deems fit, it may issue an order to a judicial magistrate to conduct an inquiry and submit a report. Typically, the nature of the offence and the prima facie validity of the request are examined at this stage. The Extradition Act does not provide for any specific factors that are to be considered by the central government at the time of ordering an inquiry by the magistrate.

If the magistrate is of opinion that a prima facie case is made out in support of the requisition of the foreign state, he or she shall report the result of his or her inquiry to the central government. After receiving the report from the magistrate, if the central government is of the opinion that the fugitive criminal should be surrendered to the requesting state, it may issue a warrant for the custody and removal of the fugitive criminal and for his delivery at a place and to a person to be named in the warrant.

Accordingly, the central government makes the final determination of whether to grant an extradition request. The Extradition Act does not provide for any specific factors that are to be considered by the central government when issuing this warrant for the surrender and removal of the fugitive criminal.

However, the Extradition Act does specify certain factors that the central government may consider when discharging any fugitive criminal. Section 29 of the Extradition Act provides that the central government may direct any warrant issued under the Extradition Act to be cancelled, may discharge any fugitive criminal, or may stay the proceedings under the Extradition Act, if it appears to the central government that the following reasons apply:

  • if the nature of the case is trivial;
  • if the application for the surrender or return of a fugitive criminal is not being made in good faith
  • in the interests of justice
  • for political reasons; or
  • if the central government otherwise considers that it would be unjust or inexpedient.

In coming to its decision, the central government will also need to bear in mind the terms of any relevant extradition treaty or arrangement and the provisions of section 31 of the Extradition Act, which provides for restrictions on granting extradition requests. In practice, however, political factors such as diplomatic relations between India and the requesting state and prior history of reciprocal extradition are likely to have a greater influence on the final decision.

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25. What ability is there to appeal against or judicially challenge decisions made during the extradition process? What are the requirements for any appeal or challenge?

India

A fugitive criminal does not have a statutory right to appeal decisions taken in extradition proceedings under the Extradition Act. However, the decision of the magistrate or the central government can be challenged by way of a writ petition filed before a High Court or the Supreme Court, alleging violation of any fundamental rights of such fugitive criminal.

An order of the High Court passed in such writ petition can appealed to either a larger bench of the same High Court (depending on the size of the bench that first heard the matter) or to the Supreme Court of India.

Writ jurisdiction allows the High Courts and Supreme Court to examine whether a judicial or administrative decision is incorrect on the grounds of perversity, patent illegality, irrationality, want of power to take the decision and procedural irregularity. The court usually will not go into the merits or facts of the matter.

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26. What are the time limits for the extradition process? How long does each phase of the extradition process take in practice?

India

There are no prescriptive timelines provided in the Extradition Act. The extradition process may be completed within a year or may last for several years, particularly if an appeal of an extradition decision is made to a high court or the Supreme Court. Litigation proceedings in India may take several years to be decided.

For example, in a recent case, Milen Ivanov Davranski v Union of India, 2021 (223) AIC 405, the request for extradition was received by the central government in July 2020, and the central government thereafter requested a magistrate to inquire into the matter. The magistrate recommended the extradition by an order dated 6 November 2020. The fugitive criminal filed a writ petition before the Delhi High Court. Due to the pendency of domestic criminal proceedings against the fugitive criminal, the Delhi High Court held that extradition could not be allowed in a judgment dated 7 April 2021.

On the other hand, in another case (Union of India v Puneet), the request from the requesting state was received in October 2009, after which the central government issued an order to a magistrate requesting enquiry into the matter in June 2010. The magistrate issued an arrest warrant. However, the fugitive criminal could not be located until November 2013, when he or she was arrested and sent to judicial custody. For reasons that are not reported, however, the magistrate did not pass an order recommending the extradition of the fugitive criminal until August 2021. In the meantime, it appears that the fugitive criminal had been living in India. This case appears to be ongoing, as reports suggest that the Delhi High Court recommended the extradition of the fugitive criminal in September 2021, but ordered that the extradition be stayed until the next date of hearing due to the fugitive criminal’s challenge to the order.  

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27. In what circumstances may parallel proceedings delay extradition?

India

Domestic criminal proceedings will impact the extradition process. Section 31 of the Extradition Act provides that if a fugitive criminal has been accused of some offence in India (other than the offence for which he or she is sought to be extradited), or if he or she is serving a sentence for some conviction in India, he or she cannot be extradited until after he or she has been discharged, whether by acquittal of the offence, or by completion of his sentence after conviction.

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28. What provision is made for legal representation of the requesting state or the requested person?

India

There are no prescribed guidelines or provisions relating to legal representation for the fugitive criminal. However, in general, any person detained by the police or appearing before a magistrate has the right to legal representation, and if the person cannot afford legal representation, the state shall be required to make provisions. In practice, upon detention or arrest of the fugitive criminal, the police will usually give him or her the opportunity to contact his or her attorney or other contacts in India. 

The Extradition Act also does not provide that the requesting state has a right to legal representation. However, a magistrate has wide discretionary powers and may, in the interests of justice and if there are special circumstances, at his or her discretion, allow the requesting state to make submissions before the magistrate through its legal counsel. Similarly, at the appellate stages, the high court or Supreme Court may, at its discretion, allow the requesting state to be represented by and make submissions through legal counsel.

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