Extradition has emerged as an indispensable mechanism in the administration of criminal justice in an increasingly interconnected world where offenders often escape national jurisdictions to evade prosecution. It refers to the formal process by which one sovereign State surrenders a person accused or convicted of an offence to another State upon a lawful request. In India, extradition is not merely an executive or diplomatic act but a legally regulated process governed by statutory provisions, international treaties, and constitutional safeguards. The extradition regime in India seeks to balance the interest of international cooperation in criminal matters with the protection of individual liberty and fundamental rights.
The principal legislation governing extradition in India is the Extradition Act, 1962, which consolidates the law relating to the extradition of fugitive criminals. The Act provides the legal foundation for extradition pursuant to treaties entered into by India as well as extradition based on reciprocity in the absence of a formal treaty. Under the Act, the Central Government is vested with the authority to apply its provisions to both treaty States and non-treaty States through appropriate notifications. Thus, the existence of a treaty, though desirable, is not an absolute prerequisite for extradition, provided diplomatic assurances and reciprocal arrangements are in place.
A fundamental requirement under the Indian extradition framework is that the offence in question must be an extraditable offence. This is determined primarily by the principle of double criminality, which mandates that the alleged act must constitute an offence punishable under the laws of both the requesting State and India, generally with imprisonment of at least one year. Certain categories of offences, particularly those of a purely political nature, are excluded from extradition. However, Indian courts have progressively narrowed the scope of the political offence exception, especially in cases involving terrorism, organised crime, and serious economic offences, reflecting the evolving nature of transnational criminal activity.
The extradition process in India commences with a formal request made by the requesting State through diplomatic channels. Such a request must be accompanied by detailed documentation, including particulars of the offence, relevant legal provisions, evidence establishing a prima facie case, and assurances relating to fair trial and humane treatment. Upon receipt of the request, the Central Government undertakes a preliminary examination to determine whether the request complies with statutory requirements and treaty obligations. If satisfied, the Government orders a judicial inquiry by a Magistrate under Section 5 of the Extradition Act, 1962.
The judicial inquiry conducted by the Magistrate is a crucial procedural safeguard, although it is limited in scope. The Magistrate does not conduct a full-fledged trial or adjudicate upon the guilt or innocence of the fugitive. Instead, the inquiry is confined to examining whether a prima facie case exists, whether the offence is extraditable, and whether the request is barred by any legal exceptions. The Magistrate’s role is thus inquisitorial rather than adjudicatory, ensuring that the request is not manifestly arbitrary or legally untenable.
Following the Magistrate’s inquiry and submission of a report, the ultimate decision regarding the surrender of the fugitive rests with the Central Government. This underscores the executive character of extradition proceedings, rooted in considerations of foreign policy, diplomatic relations, and international comity. However, executive discretion in extradition matters is not unfettered and is subject to constitutional limitations and judicial scrutiny.
Judicial review in extradition cases, though limited, plays a vital role in safeguarding individual rights. Indian courts do not function as appellate authorities over extradition decisions but exercise judicial review to ensure that the procedure adopted is lawful, fair, and reasonable. Courts may intervene where there is non-compliance with statutory provisions, violation of treaty obligations, mala fide exercise of power, or infringement of fundamental rights, particularly those guaranteed under Article 21 of the Constitution of India.
Human rights considerations have assumed central importance in extradition jurisprudence. Indian courts have recognised that extradition cannot be permitted if it exposes the fugitive to torture, inhuman or degrading treatment, or a flagrant denial of the right to a fair trial. In Abu Salem Abdul Qayoom Ansari v. Union of India, the Supreme Court emphasised that diplomatic assurances furnished by the requesting State are binding and must be honoured in both letter and spirit. Similarly, extradition may be denied or conditioned where the death penalty is likely to be imposed, unless adequate assurances against such punishment are provided.
Despite a comprehensive legal framework, India continues to face significant challenges in securing extradition, particularly in cases involving economic offenders. Procedural delays, stringent evidentiary standards imposed by foreign courts, and human rights objections often impede successful extradition. These challenges highlight the need for greater coordination between investigative agencies, the judiciary, and diplomatic authorities.
In conclusion, extradition law in India represents a careful balance between international obligations and constitutional protections. While the Extradition Act, 1962 provides the statutory backbone, judicial oversight ensures that extradition does not become an instrument of injustice or executive excess. As cross-border crimes grow in scale and complexity, strengthening India’s extradition framework through procedural efficiency, treaty reform, and robust human rights safeguards is essential to uphold both the rule of law and international cooperation.
Contributed by: Aradhya Akshat