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- What is extradition? Extradition refers to the surrender of a criminal to one country by another. The process of extradition is regulated by treaties between the two countries. Extradition helps maintain the sanctity of the penal code of one country or territory. A nation cannot apply its criminal law to a person who committed an offence outside its territories.
- Internationally accepted conditions for extradition:
- The crime done by the accused should fall in the category of dual criminality. This means that it should be a punishable offence according to the laws of both nations, the one where the accused has taken refuge, and the one that seeks extradition. For example, homosexuality was an offence in India under section 377 of the IPC (until 2018), but in many countries of the West, it is legal. Therefore, India could not have requested any extradition on those grounds.
- Persons charged for political reasons are generally not extradited. They may seek asylum, in fact.
- Some nations have banned capital punishment. For instance Australia, Canada, Macao, Mexico, and most European nations refuse to extradite a criminal if the person in question might get capital punishment after his extradition.
- Extradition laws in India: In India, the Extradition Act, 1962, regulates the surrender of a person to another country or the request for arrest of a person in a foreign land. Accordingly, any conduct by a person in India or elsewhere mentioned in a list of extradition offences punishable with a minimum one year of imprisonment qualifies for an extradition request.
- More details: India can make an extradition request to any country. While 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 to consider, in accordance with its domestic laws and procedures, whether the country can agree to India’s extradition request on the basis of an assurance of reciprocity. Similarly, any country can make an extradition request to India. The legal basis for Extradition with States with whom India does not have an Extradition Treaty ("non-Treaty States”) is provided by Section 3(4) of the Indian Extradition Act, 1962. he process of extradition is to be initiated by the central government. Currently, India has extradition treaties with 43 countries, and extradition arrangements with another 10. [ https://www.mea.gov.in/leta.htm ]
- No treaty? If there is no treaty with the country from which the fugitive is to be extradited, then there aren’t any defined guidelines for the law to be applied and procedure to be followed. In such a scenario, a lot depends on the cooperation and coordination between different authorities of the two countries. Another option is to resort to a Mutual Legal Assistance Treaty wherein both countries agree to exchange information in order to enforce criminal laws.
- More than one? If the extradition request comes from two or more countries, then the government has the right to take the call to decide which country is fittest for the request. Since 2002, India has extradited 51 fugitive criminals to various countries. [ https://www.mea.gov.in/byindia.htm ] India has got 67 criminals extradited to itself from different countries since 2002. [ https://www.mea.gov.in/toindia.htm ]
- What are the conditions under which the government can deny extradition?
- In case the government believes that the case is trivial, and it thinks that the surrendering of the person is not being made in good faith, or in the interests of justice, or for political reasons, it can deny the request.
- If the surrender is barred by time in the law of the country which seeks extradition, then also the person can't be extradited from India.
- The government can also stop the process if it feels that the person will be charged with an offence not mentioned in the extradition treaty.
- The government can put extradition on hold if it feels the person accused will be charged for a lesser offence disclosed by the authorities.
- If the person is serving a jail term for an offence on Indian soil, which is different from the offence for which the person is wanted abroad, then also the extradition process can be stopped. Similarly if a fugitive criminal has committed an offence which is punishable with death in India, while the laws of the foreign state do not provide death for the same offence, the criminal will get life imprisonment in India.
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