Extradition

1. Meaning

Oppenheim: 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 for the time to be. Starke: the surrender by one State to another of an individual accused or convicted of an offence outside its own territory and within the territorial jurisdiction of the other, which, being competent to try and punish him, demands the surrender.

Purpose. Crime should not go unpunished merely because the offender has crossed a border; the requesting State is best placed to try him, since the evidence and witnesses are there; and extradition is in the common interest of States, on the basis of reciprocity.

2. Basis: is there a duty to extradite?

There is no general duty under customary international law to extradite. Grotius argued for a duty to extradite or punish (aut dedere aut punire), but State practice did not follow. Extradition rests on treaties (bilateral, or multilateral such as the European Convention on Extradition, 1957) and on national legislation, which may permit extradition without a treaty on reciprocity. Several multilateral treaties impose the obligation to extradite or prosecute (aut dedere aut judicare) for particular crimes: the hijacking and terrorism conventions, the Torture Convention 1984 (Article 7). In Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), ICJ, 2012, Senegal was held in breach of the Torture Convention for failing to prosecute or extradite Hissène Habré, the former President of Chad.

3. Conditions of extradition

• Extradition treaty or arrangement between the States, or legislation allowing extradition on reciprocity.
• Extradition crime: the offence must be listed in the treaty or, under modern treaties, punishable with a minimum term (often one year).
• Double criminality: the act must be a crime under the laws of both the requesting and the requested States. It is the conduct that must be criminal in both, not the label (the Pinochet (No. 3) decision, House of Lords, 1999, applied it to the date of the conduct, limiting extraditable torture charges to those after the UK made torture abroad a crime).
• Rule of speciality: the person may be tried only for the offence for which extradition was granted, not for any other offence committed before surrender, unless the requested State consents or the person has had an opportunity to leave. This protects the requested State's decision. United States v. Rauscher (US Supreme Court, 1886).
• Prima facie case (common-law countries): evidence sufficient to justify committal for trial had the offence been committed in the requested State.
• Time bar: no extradition where prosecution is barred by limitation.
• Formalities: a request through diplomatic channels with the warrant and evidence.

4. Non-extraditable persons and crimes

(a) Political offenders. Since the French Revolution, States have refused to surrender political offenders, on the view that the requested State should not take sides in another's political struggles and that the offender is unlikely to receive a fair trial. The difficulty is defining a political offence.

• Re Castioni (English High Court, 1891): during a rising in the Swiss canton of Ticino, Castioni shot a member of the government. Held a political offence, since it was incidental to and formed part of a political disturbance. This is the political incidence test.
• Re Meunier (1894): an anarchist who bombed a café and barracks in Paris was surrendered. Anarchism is the enemy of all governments, so there were not two parties contending for power.
• R v. Governor of Brixton Prison, ex parte Kolczynski (1955): Polish seamen who seized their trawler to escape communist rule were not surrendered, a broader view of political offences.

The exception has been narrowed:

• Attentat clause (Belgium, 1856, after an attempt on Napoleon III): the murder or attempted murder of a head of State or members of his family is not a political offence.
• Genocide is not to be treated as a political crime for extradition (Genocide Convention, Article VII).
• Terrorist offences: hijacking, hostage-taking, terrorist bombings and attacks on protected persons are excluded by the relevant conventions and by the Schedule to India's Extradition Act.

(b) Military offences (desertion, insubordination) and religious offences are generally not extraditable.

(c) Own nationals. Civil-law States (France, Germany) usually refuse to extradite their own nationals and instead prosecute them at home. Common-law States generally do extradite them. India's Act contains no bar; it depends on the treaty.

(d) Risk of death penalty, torture or persecution. In Soering v. United Kingdom (European Court of Human Rights, 1989), extradition of a German national to Virginia to face a capital charge would violate Article 3 of the European Convention because of the “death row phenomenon”. Many States refuse extradition without an assurance that the death penalty will not be carried out.

5. Unlawful seizure: the Savarkar case

Savarkar (France v. Great Britain, Permanent Court of Arbitration, 1911). V.D. Savarkar, being taken by ship from England to India for trial, escaped through a porthole when the ship was at Marseilles and swam ashore. A French gendarme seized him and handed him back to the British officers, and the ship sailed. France demanded his return. The tribunal held that although there had been an irregularity, there was no rule of international law requiring Britain to restore him, since the French agent had acted in good faith and there was no fraud or force by Britain. The case is cited for the principle that irregular surrender does not oblige return. Compare Eichmann (Israel, 1961), abducted from Argentina, and United States v. Alvarez-Machain (US Supreme Court, 1992): courts have tried persons brought before them irregularly (male captus, bene detentus), though the abduction itself may breach the territorial State's sovereignty.

6. Extradition and deportation

Extradition is surrender on request for trial or punishment; deportation (expulsion) is the removal of an unwanted alien in the State's own interest. In Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta, 1955 INSC 7, AIR 1955 SC 367, the Supreme Court held that the Foreigners Act, 1946 (since replaced by the Immigration and Foreigners Act, 2025, in force from 1 September 2025) confers an unfettered right on the Government to expel a foreigner; the power is distinct from extradition, which requires a request and a judicial inquiry under the Extradition Act. A foreigner's rights under Article 19 do not extend to residence in India.

7. The Extradition Act, 1962

• Extradition offence (section 2(c)): for a treaty State, an offence provided for in the treaty; for a non-treaty State, an offence punishable with imprisonment of not less than one year under the laws of India or of the foreign State, including a composite offence.
• Restrictions on surrender (section 31(1)): no surrender (a) if the offence is of a political character, or the request is in fact made to try or punish him for such an offence; (b) if prosecution is time-barred under the law of the requesting State; (c) unless that State's law or the treaty provides for speciality; (d) while he is accused or serving a sentence for another offence in India; (e) until fifteen days after committal to prison by the magistrate. Section 31(2): offences in the Schedule are not to be regarded as political.
• Speciality in reverse (section 21): a person surrendered to India may not be tried in India for an offence other than the one for which he was surrendered, a lesser offence proved by the same facts, or one to which the foreign State has consented.
• Provisional arrest (section 34B): on an urgent request; the person is discharged if no request for surrender is received within sixty days.
• Death penalty (section 34C): a person surrendered to India for an offence punishable with death, by a State whose law does not provide death for that offence, is liable to life imprisonment only.
• Prosecution on refusal (section 34A): where a fugitive cannot be surrendered, the Central Government may prosecute him in India.

The speciality cases. In Daya Singh Lahoria v. Union of India, 2001 INSC 212, (2001) 4 SCC 516, the petitioner, extradited from the US for specified offences, could not be tried for other offences not covered by the surrender: section 21 and the speciality rule are enforceable by the person extradited. In Abu Salem Abdul Qayoom Ansari v. State of Maharashtra, 2010 INSC 602, (2011) 11 SCC 214, Abu Salem, extradited from Portugal in 2005 on India's solemn assurance that he would not be given the death penalty or imprisonment exceeding twenty-five years, challenged additional charges. The Court held that additional charges arising from the same facts as those on which extradition was granted were permissible under section 21(b). Later, in Abu Salem Abdul Kayyum Ansari v. State of Maharashtra, 2022 INSC 671 (11 July 2022), the Court held that the assurance given to Portugal binds the Union of India, which must act on it once twenty-five years of custody are completed, though the Indian courts are not themselves bound by it in sentencing.

How this is examined

For the essay on non-extraditable crimes, define extradition, give its basis and conditions briefly, then spend the answer on political offences (Castioni, Meunier, the attentat clause, exclusions for genocide and terrorism, section 31 of the Act), military and religious offences, own nationals and the death penalty. A short note on extradition: definition, basis, five conditions, exceptions, one Indian case and Savarkar.