Basis of the Principle of Extradition: Ordinarily each State exercises complete jurisdiction over all the persons within its territory. But sometimes there may be cases when a person after committing crime runs away to another country. In such a situation the country affected finds itself helpless to exercise jurisdiction to punish the guilty person. This situation is undoubtedly very detrimental for peace and order. In such a situation peace and order can be maintained only when there is international co-operation among the States. There is social need to punish such criminals and in order to fulfill this social necessity the principle of extradition has been recognized.
Meaning and Definition of the Term ‘Extradition’: Extradition is the delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed or to have been convicted of a crime, by the State on whose territory the alleged criminal happens to be for the time being
According to Starke: 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.
According to Grotius: It is the duty of each State either to punish the criminals or to return them to the States where they have committed crime.
International Law does not recognize any General Duty of States in Respect of Extradition: Extradition depends on the provisions of the existing extradition treaties.
Essential Conditions of Granting Extradition or Restrictions on Surrender: There are some restrictions on surrender of fugitive criminals or essential conditions for extradition.
- Non-extradition of Political Criminal: It is a very important principle of International Jaw that extradition on account of political crimes is not allowed. The practice of non-extradition for political crimes began with the French Revolution of 1789. A crime is sometimes considered political if committed from a political motive or if committed both from a political motive and for a political purpose or the political crime may be confined to certain offences against the State only, such as high treason and the like.
- Re Castioni 1891 is the best example,
An armed crowd including Castioni attacked the Municipal Palace and killed a member of the State Council. There was evidence that the shot was fired by Castioni. The Queen’s Bench of England held that Castioni was guilty of political crime.
- Re Meunier 1894 is also a good example.
- Extradition is not allowed for military criminals also.
- Similarly, for religious crimes also persons are not extradited.
- The Rule of Specialty: An accused is extradited for a particular crime, and the country which gets back the criminals is entitled to prosecute that person only for the crime for which he was extradited.
U.S. vs Rauscher 1886 :
- Double Criminality- The crime for which extradition is claimed should be crime in both the countries. (The country claiming the extradition and the country extraditing).
- There should be sufficient evidence for crimes relating to extradition. In other words it should appear to be a crime prime facie.
- For extradition it is also necessary that certain other prescribed formalities should be fulfilled.
- The conditions and the terms mentioned in the extradition treaty should be generally fulfilled.
In Savarkar Case 1911 it was held that once a person is extradited, even though it was done in irregular way, the country receiving the fugitive or the criminal is not bound under the International Law to return the accused.
- Extradition is generally a matter of bilateral treaty. There must be a “formal treaty not simply an agreement or notification. Tarashov Extradition case 1963.
- Generally States do not allow the extradition of their own citizens. Regina vs Wilson 1978.
Restrictions on Surrender under Indian Law: Sec. 31 of the Extradition, Act 1962 provides certain restrictions on surrender of fugitive criminals.
- If the person is charged with the offence of political character.
- If prosecution for offence is barred by time in accordance with law of receiving State.
- Extradition treaty or provision by law of Foreign State that fugitive criminal shall not be tried or detained in that State for any offence committed prior to his surrender or return.
- If accused of some offence in India other than offence for which extradition is sought
- After the expiration of 15 days from the date of his being committed to prison by the magistrate.
The Central Government has unlettered power or discretion to discharge any fugitive criminal. By reason of trivial nature of the case, or by reason of the application for the surrender or return of a fugitive criminal not being made in good faith or in the interest of justice or for political reasons or otherwise it is unjust or inexpedient to surrender or return the fugitive criminal.
