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From Treaty to Trial: Understanding India’s Extradition Challenges

Author: Suhani Singh, Maharashtra National Law University, Chhatrapati Sambhajinagar


Introduction

From Lalit Modi, Nirav Modi, Jatin Mehta to Vijay Mallaya once known for their immense wealth, all these people have something in common, which is a label given to them as some of the biggest fugitives of India. Not “Char mulko ki police inke piche” but yes Indian External Ministry is all waiting for them to be extradited to carry on the legal charges in India, but something is in between as major hurdle and that is none other than complex Extradition process and international relations. Over the past 5 years about 178 requests were made for extradition of Indian fugitives by Indian law enforcement agencies out of which only 23 persons were successfully extradited which highlights the ongoing tension of extradition for successful justice delivery.

So, in this legal blog we are going to know some complex nuances of these bilateral extradition treaties and try to know why 100s of extraditions are still pending, affecting the legal enforcement process for some of the biggest frauds inside Indian territory.


Law in Brief

Extradition treaty means a treaty, agreement or arrangement with a Foreign State relating to the extradition of fugitive criminals. Extradition treaty contains the conditions that need to be fulfilled to continue with the process of extradition and a list of crimes based on which a fugitive may be detained in the foreign country.

The laws related to extradition in India are governed by Extradition Act, 1962(amended in 1993) and treaties with other countries. Currently India has an extradition treaty with 48 nations and extradition arrangements with over a dozen of countries. In the Extradition Act, Chapter 2 and Chapter 3 provide the procedure for extradition in which Chapter 3 applies to countries where India has an extradition bilateral treaty and Chapter 2 deals with countries where India does not have extradition arrangement. 

The steps to extradite an accused or convicted are: 

  • The Investigating Agency (for example, the CBI) or the Court sends a request for extradition through the Ministry or Department of Home of the concerned State/UT to the IS-II division of the Ministry of Home Affairs (MHA). 

  • After examining the request, the MHA may send the request back for correction of errors or send it to the CPV division of the Ministry of External Affairs (MEA).

  • After examining the request, the MEA may send the request back for rectification to the Investigating agency or may forward it to the Indian embassy abroad to forward it to the concerned country. 


Challenges arising within Extradition Treaties

Double criminality- The principle of dual criminality says that a person may be extradited to a foreign state only if the act for which they are being prosecuted is considered a crime in both jurisdictions. This rule protects individuals from being prosecuted for actions that are permissible or not criminally punishable in the country of their current residence. This principle is followed by many countries like the USA and in the UK it is established as a requirement under the Extradition Act 2003. Article 2 of 1957 European Convention on Extradition (ratified by more than 50 countries) also mentions this rule. This law act as a hurdle sometimes as seen in Vijay Mallaya case where interpretation of fraud and money laundering across the two nations delayed the extradition process, Early in Mallaya’s extradition process, a key issue was whether his conduct, primarily loan default, could be treated as a criminal offence under UK law rather than a mere civil breach of contract. Initially, defaults on bank loans were regarded as civil liabilities in the UK, which complicated whether dual criminality existed.


Human rights issue- European nations are most likely to reject an extradition request based on possible inhumane treatment to the accused. In the landmark judgement of Soering v. United Kingdom European Court of Human Rights decided that poor prison condition is equivalent to torture and can be ground of cancelling the extradition and same thing is being highlighted by lawyers of Vijay Mallaya upon which UK court requested Indian government to send video of Arthur Road jail for proper sunlight conditions. In 1996, the European Court of Human Rights prohibited the deportation of Sikh separatist, Karamjit Singh Chahal, to India on the possibility of misconduct by Punjab police officials.


Rule of Speciality- Speciality is a principle of international law, which provides that a person who is extradited can be prosecuted or sentenced in the requesting state only in relation to the offence(s) for which extradition was granted and not for any other crime committed before extradition took place. In the extradition of underworld figure Abu Salem from Portugal in 2005, India violated the rule of Speciality by framing him also in 1993 Mumbai serial blast case under the rule of TADA[Terrorist and Disruptive Activities (Prevention) Act], but Portuguese authorities had pre-mentioned that this extradition is only to cases where imprisonment is under 25 years.


Conclusion

Extradition treaties aim to prevent fugitives from escaping justice by moving across borders. In India, the Extradition Act, 1962 along with bilateral treaties provides a structured mechanism, but several challenges limit its success. Principles such as dual criminality, human rights safeguards, and the rule of speciality are important, yet they often lead to delays and disputes. The experiences from cases like Vijay Mallya and Abu Salem show that legal differences and failure to honor assurances can weaken trust between states. Whether further legal reforms or clearer treaty clauses can reduce these challenges remains open for debate.


References



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