EXTRADITION

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 fulfil this
social necessity the principle of extradition has been recognized. "The
inability of a State to exercise its jurisdiction within the territory of another
State would seriously undermine the maintenance of law and order if there
were no co-operation in the administration of justice. The awareness among
national decision-makers of the social necessity of jurisdictional co-operation
is illustrated by the widespread practice of returning a person who is accused
or who has been convicted of a crime to the State in which the crime was
committed."

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."2 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, such requesting
State being competent to try the alleged offender. 3 In the view of eminent
jurist 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 In practice,
however, States do not accept such obligation. Under international law,
extradition is mostly a matter of bilateral treaty. In principle, each State
considers it a right to give asylum to a foreign national "States have always
upheld their right to grant asylum to foreign individuals as an inference from
their territorial supremacy, those cases excepted, of course, which fall under
stipulations of special extradition treaties, if any. There is, therefore, no
universal rule of customary international law in existence which imposes the
duty of extradition. "

Is there a general duty of States in respect of extradition?: International Law

does not recognise any general duty of States in respect of extradition.
Extradition depends on the provisions of the existing extradition treaties. In
Factor v. Laubenheimer, (1933) 290 U.S. 276. the Court held. "The principles
of international law recognize no right to extradition apart from treaty while a
Government may, if agreeable to its own constitution and laws, voluntarily
exercise the power to surrender a fugitive from justice to the country from
which he fled.... the legal right to demand his extradition and the correlative
duty to surrender him to the demanding State exist only when created by
treaty." But as pointed out in Wheaton's International Law, there is no
universally recognised practice that there can be no extradition except under
a treaty, for, some countries grant extradition without a treaty.

It may, therefore, be concluded that although there is no universal rule of

customary International law imposing a general duty of States in respect of
extradition and generally extradition is granted on the basis of a treaty, it
would be wrong to say that there can be no extradition apart from a treaty.
As remarked by the Supreme Court of India, "Extradition with foreign States
is, except in exceptional cases, governed by treaties or arrangements made.

Distinction between 'expulsion' (under Foreigners Act, 1946) and Extradition':

In Hans Muller Muller of Nurenburg v. Superintendent, Presidency Jail,
Calcutta and others, the Supreme Court clarified the distinction between
'expulsion' and 'extradition." The Supreme Court observed that the
Foreigners Act confers the power to expel foreigners from Country. It vests
the Central Government with absolute and unfettered discretion and, as
there is no provision fettering this discretion in the Constitution, an
unrestricted right to expel remains. The law of extradition is quite different.
Because of treaty obligations it confers a right on certain countries (not all)
to ask the persons who are alleged to have committed certain specified
offences on the territories, or who have already been convicted of those
offences by their Courts, be handed over to them in custody for prosecution
or punishment. But despite that the Government of India is not bound to
comply with the request and has an absolute and unfettered discretion to
refuse. The Extradition Act is really a special branch of the law of criminal
procedure. It deals with criminals and those accused of certain crimes. The
Foreigners Act is not directly concerned with criminals or crime though the
fact that a foreigner has committed offences, or is suspected of that may be
a good ground for regarding him as undesirable. Therefore under the
Extradition Act warrants or summons must be issued; there must be
magisterial enquiry and when there is an arrest it is penal in character and
this is the most important distinction of all when the person to be extradited
leaves India he does not leave the country as a free man. The police in India
hands him over to the police of the requisitioning State and he remains in
custody throughout. In the case of expulsion no idea of punishment is
involved at any rate in theory and if a man is prepared to leave voluntarily he
can ordinarily go as and when he pleases. But the right is not his under the
Local Law, the matter is left to the unfettered discretion of the Union
Government Finally, the Supreme Court held that the Foreigners Act is not
governed by the provisions of the Extradition Act. The two are distinct and
neither impinges on the other. Even if there is a requisition and a good case
for extradition. Government is not bound to accede to the request. It is given
an unfettered right to refuse for Section 3(1) of the Extradition Act says "the
Central Government may, it thinks fit Therefore, if it chooses not to comply
with the request the personi against whom the request is made cannot insist
that it should. The right is not his and the fact that a request has been made
does not fetter the discretion of Government to choose the less cumbrous
procedure to the Foreigners Act when a foreigner is concerned.

In the present case, the petitioner. Hans Muller, who was not a citizen of
India and was said to be a West German Subject, was arrested by Calcutta
Police on 18-9-1954 and was placed under preventive detention with a view
to making arrangements for his expulsion from India. On 9-10-1954, the West
German Government wrote to the West Bengal Government saying that a
warrant of arrest was issued against the petitioner in West Germany in
connection with a number of frauds and that legal proceedings in connection
with those warrants were still pending. The West German consul told the
Government of West Bengal that his Government would apply for extradition
of the petitioner and requested that in the meantime the petitioner be
detained up to the date of his extradition to Germany. The Government of
West Bengal accepted the request. But the order to deport the petitioner
could be passed by the Central Government only No such order having been
made by the Central Government up till the 20th of October, 1954, the
petitioner applied to the High Court of Calcutta for a writ in the nature of
'habeas corpus' under Section 491, Cr.P.C. The High Court dismissed the
petition on 10-12-1954. The petitioner thereupon preferred the present
petition on the basis of the above observations (and on other grounds also)
but the Supreme Court dismissed the petition.

Restrictions on surrender: As pointed out earlier, under international law

extradition mostly depends on treaties among the States. However, the
Courts have also established certain principles and rules in regard to law of
extradition. In other words, we may say that following are some restrictions
on surrender of fugitive criminals:
Non-extradition of political criminal: It is a very important principle of
International Law that extradition for political crimes is not allowed. "Most
States refuse to commit themselves to extradite... any persons charged with
'political crimes', that is to say crime committed for political purposes or
crimes that are politically motivated. The difficulty of applying political
exception is obviously a problem that regularly plagues the Courts." The
practice of non-extradition for Political crimes began with the French
Revolution of 1789. Later on other States also subscribed to this view. In the
present period, almost all the States subscribe to this view although many
difficulties arise in the enforcement of this principle. The most difficult
problem is of the definition of the term 'political crimes. Many attempts have
been made to define the term 'political crime, but success has so far eluded.

Reference may be made here to Re Castioni, which is a leading case of non-

extradition of political crimes. In this case the Swiss Government requested
for the extradition of Castioni who was charged with murdering a member of
the State Council of the Canton of Ticinio. Political dissatisfaction was
prevailing in the said Cantorn for some time. 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 a political party and
therefore he could not be extradited. Another important case on the point is
Re Meunier.2 In this case, the accused was an anarchist and was charged
with causing two explosions in a Paris Cafe and two barracks. After
committing the offence, he fled to England France demanded his extradition.
The accused contended that the nature of his crime was political and
therefore he could not be extradited. The Court held that for an offence to be
poltical, it is necessary that there should be two or more than two parties in
the State, each wantirig to establish its Government in the State. If an
offence is committed with this objective, it will be called a political offence. In
the present case, the offence committed was not a political offence.

Because of different political systems and idealogies, this rule is not likely to
be forsaken.3 Oppenheim has also pointed out, "up to the present day all
attempts to formulate a satisfactory conception of the term have failed, and
the reason of the thing will probably, for ever exclude the possibility of
finding a satisfactory definition. The difficulty is caused through the so called
'relative political crimes or debits complexes namely, those complex cases in
which the political offence comprises at the same time an ordinary crime,
such as murder, arson, theft, and the like. Some deny categorically that such
complex crimes are political, but this opinion is wrong and retrogressive,
since indeed many honourable political criminals would have to be extradited
in consequence thereof. On the other hand, it cannot be denied that many
cases of complex crimes, although the deed may have been committed from
a political motive or for a political purpose, are such as ought not to be
considered political. Such cases have aroused the indignation of the world,
and have indeed endangered the very value of the principle of non-
extradition of political criminals." He further points out that with a view to
deal with such complex crimes without violating this principle, following
three practical attempts have been made:

(i) Attentat clause: The so-called Belgian Attentat clause was enacted by
Belgium in 1856 after the case of Jacquin in 1854. This case related to the
attempt to murder the Emperor Napoleon III by Jacquin, a French
manufacturer domiciled in Belgium, and a person named Celestin Jaquin who
was a foreman in his factory by trying to cause explosion on the railway line
between Lilla and Calais. The extradition of the said two criminals was
sought by. France but the same was refused by the Belgian Court of Appeal
which prohibited the extradition of political criminals. With a view to deal
with such case the so-called Belgian Attentat clause was enacted. It provided
that murder of the Head of a foreign Government, or of a member of his
family, should not be considered a political crime, Britain and many other
European States also adopted such attentat clause.

(ii) Russian Project of 1881: In 1881, Emperor Alexander II was murdered.

Influenced by the murder, in the same year (/.e. 1881) Russia invited other
States to hold an international conference at Brussels to consider the
proposal that murder or attempt to murder should not be considered as a
political crime. But the Russian project failed to materializa because both
Great Britain and France refused to participate in the proposed conference.

(iii) Swiss Solution to the Problem in 1892: In 1892 enacted an extradition

law. Article 10 of the said law recognised the principle of non- extradition of
political criminals. Article 10 also recognised that if the chief feature of the
offence contained more aspect of an ordinary rather than a political crime,
then political criminal would not be surrendered and decision as to whether
such criminals could be extradited or not was left with the Bundesgericht,
i.e.-- the highest Swiss Judicial Court.

(2) Extradition is not allowed for military criminals also.

(3) Similarly, for religious crimes also persons are not extradited.
(4) The Rule of Speciality: An accused is extradited for a particular crime, and
the country which gets back the criminal is entitled to prosecute that person
only for that crime for which he was extradited. This is known as the rule of
speciality. In U.S. v. Rauscher, (1886) 119 U.S. 407. America got Raushcer
extradited from Britain on the ground that he had fled to Britain after
murdering a fellow servant in an American ship. In America, Raucher was
tried not for murder but for causing grievously hurt to a man named Janssen.
The Supreme Court of the United States of America held that when a person
is brought under he jurisdiction of Court under the extradition treaty, he may
be tried only for such offence for which his extradition was sought. The same
law prevails in India.¹

(5) 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). This is called the rule of Double criminality.

(6) There should be sufficient evidence for crimes relating to extradition. In

other words, the crime should be such that should appear to be a crime
prima facie.

(7) For extradition it is also necessary that certain other prescribed

formalitles should be fulfilled.

(8) The conditions and terms mentioned in the Extradition Treaty should be
generally fulfilled. In this connection, a leading case is that of Savarkar
(1911). Savarkar was an Indian revolutionary who was being brought to India
to be prosecuted, on the ground of crimes which he was alleged to have
committed. When the ship was in the port of Marcelese, Savarkar escaped,
but later on he was apprehended by French police. But the Captain of the
French ship returned Savarkar to the Captain of the British ship under the
wrong impression that it was his duty to do so. Later on the Government of
France requested the British Government to return Savarkar on the ground
that the rules relating to his extradition were not strictly observed. This, case
was entrusted to the Permanent Court of Arbitration, Hague for its decision.
The Court decided that International law does not Impose any obligation
upon the State whereby on the above ground the criminal may be returned.
That is to say once a person is extradited, even through it was done in
irregular way, the country receiving the fugitive or the criminal is not bound
under International law to return the accused. This decision has been
severely criticized by the jurists. In their view, it was not based on the sound
principle of justice.
(9) When a person is charged with having been an accessory in a crime
committed in a forign State which seeks his extradition, it is not necessary
that at the time of offence the said person must be present in the said
foreign State. This was held in Rex v. Godfrey.2 In this case Godfrey was a
member of the firm which traded in England. The said firm obtained some
goods in Switzerland on false assurances. At that time Godfrey was in
England. On the request of Switzerland, the Court ordered the extradition of
Godfrey. The same view was taken by the Supreme Court of India In Mobarak
Ali Ahmad v. State of Bombay. In this case the Supreme Court held, The
fastening of criminal liability on a foreigner in respect of culpable acts or
omissions in India which are judicially attributable to him notwithstanding
that he is corporeally present outside India at the time, is not to give any
extra-territorial operation to the law for it is in respect of an offence whose
locality is in India, that the liability is fastened on the person and punishment
is awarded by the law. if his presence in India for the trial can be secured"

In this case. Mobarak Ali Ahmad, who was undergoing trial for forgery and
fraud in the Court of Sessions Judge at Bombay. fled to Pakistan and
thereafter he went to England. The Government of India got him extradited
under the Fugitive Offender's Act. He was brought Bombay to face the
resumed Session trial. When he was in Bombay Jail, a person filed a
complaint against the accused for the offence of cheating A warrant was
issued by the Presidency Magistrate against the accused and he was brought
before the Court to face trial. It was argued on behalf of the accused that he
was a Pakistani national and was out of India during the period when the
offence was alleged to have been committed But this argument was rejected
by the Supreme Court. The Court held that the Indian Courts would have
jurisdiction over a case in which a person committed an offence although not
being present in India at the time of the commission of the offence.

(10) As pointed out earlier, extradition is generally a matter of bilateral

treaty. It has been held that there must be a formal treaty not simply an
agreement or notification. This was held by the First- class Magistrate in New
Delhi in The Tarashov Extradition.