Table of Contents
Countries Having Extradition Treaties with India
Extradition between two countries generally operates on the basis of a bilateral extradition treaty, agreement or arrangement. These instruments provide the legal framework for requesting and surrendering a fugitive, and ordinarily specify matters such as extraditable offences, required documents, evidence, grounds for refusal, and the procedure to be followed.
According to the latest list published by the Ministry of External Affairs, Government of India, India currently has extradition treaties in force with 48 jurisdictions and extradition arrangements with 12 jurisdictions. The distinction between a treaty and an arrangement is important because the applicable procedure may differ depending upon the legal instrument governing the relationship between the two jurisdictions.
Countries/Jurisdictions Having Extradition Treaties with India
The countries and jurisdictions with which India has extradition treaties currently in force are:
- Afghanistan
- Australia
- Azerbaijan
- Bahrain
- Bangladesh
- Belarus
- Belgium
- Bhutan
- Brazil
- Bulgaria
- Canada
- Chile
- Egypt
- France
- Germany
- Hong Kong
- Indonesia
- Iran
- Israel
- Kuwait
- Lithuania
- Malaysia
- Malawi
- Mauritius
- Mexico
- Mongolia
- Nepal
- Netherlands
- Oman
- Philippines
- Poland
- Portugal
- Russia
- Saudi Arabia
- South Africa
- South Korea
- Spain
- Switzerland
- Tajikistan
- Thailand
- Tunisia
- Turkey
- United Arab Emirates
- United Kingdom
- Ukraine
- United States of America
- Uzbekistan
- Vietnam.
The official MEA list records the year of the respective treaty, ranging from historic arrangements such as those with Switzerland, Belgium and the Netherlands to more recent treaties with countries such as Afghanistan, Lithuania and Malawi.
Countries/Jurisdictions Having Extradition Arrangements with India
India also has extradition arrangements with:
- Antigua & Barbuda
- Armenia
- Croatia
- Fiji
- Italy
- Papua New Guinea
- Peru
- Singapore
- Sri Lanka
- Sweden
- Tanzania
- New Zealand.
It is therefore important not to assume that extradition is possible only where India has entered into a document formally described as an “extradition treaty.” Under the Extradition Act, 1962, the expression “extradition treaty” includes a treaty, agreement or arrangement relating to the extradition of fugitive criminals. The Act also permits the Central Government, in appropriate circumstances, to treat a relevant multilateral convention between India and another State as an extradition treaty for specified offences.
The existence of a treaty or arrangement, however, does not mean that extradition is automatic. The request must still satisfy the applicable treaty and Indian legal requirements.
Extradition Process in India Explained Step-by-Step
The extradition process in India involves both the executive and judicial authorities. The Ministry of External Affairs (MEA) acts as the Central Authority for extradition matters, while the Magistrate performs an important judicial role during the statutory inquiry.
The broad process can be understood through the following stages.
Step 1: Extradition Request by the Foreign State
The process generally begins when a foreign country seeks the surrender of a person believed to be present in India.
Under Section 4 of the Extradition Act, 1962, a requisition for surrender may be made to the Central Government by the diplomatic representative of the foreign State in Delhi or by the Government of that foreign State through diplomatic channels. Where the applicable treaty provides for another method, the request may be made in accordance with that arrangement.
The extradition request is ordinarily accompanied by documents and information required under the applicable treaty or arrangement. Depending on whether the person is accused or already convicted, these may include an arrest warrant, details of the alleged offence, relevant legal provisions, evidence, conviction documents and information establishing the identity of the person sought.
The Ministry of External Affairs states that an extradition request for a fugitive located in India is submitted to its Consular, Passport and Visa (CPV) Division, which is the nodal division dealing with extradition matters.
Step 2: Examination of the Extradition Request by the Central Government
Once an extradition request is received, it is examined by the Central Government through the Ministry of External Affairs.
At this stage, the authorities consider the applicable extradition treaty or arrangement, the documents accompanying the request, the identity of the person sought, the nature of the offence and the requirements of Indian law.
The Central Government therefore performs an important screening and decision-making function in extradition proceedings. It is not merely a channel through which documents are transmitted between two countries.
The Extradition Act, 1962 specifically empowers the Central Government to take various steps during the extradition process, including directing a Magistrate to conduct an inquiry and, after receiving the Magistrate’s report, deciding whether the person should ultimately be surrendered.
Step 3: Order for Magisterial Inquiry
Where the statutory requirements are satisfied and the Central Government considers it appropriate, Section 5 of the Extradition Act, 1962 empowers it to issue an order directing a Magistrate to inquire into the case.
The Magistrate selected for this purpose would ordinarily be one who would have had jurisdiction to inquire into the offence if the alleged offence had been committed within the local limits of that Magistrate’s jurisdiction.
This stage is particularly important because extradition does not simply result from a diplomatic request. The person sought is entitled to have the request examined through the statutory judicial process.
Step 4: Arrest of the Fugitive
After receiving an order from the Central Government under Section 5, the Magistrate is required under Section 6 to issue a warrant for the arrest of the fugitive criminal.
The person is thereafter brought before the Magistrate to face the extradition inquiry.
The Act also contains provisions dealing with circumstances in which a Magistrate may independently issue a warrant where it appears that a person within the Magistrate’s jurisdiction is a fugitive criminal of a foreign State. Such action is subject to the statutory requirements and reporting obligations under the Act.
Step 5: Inquiry Before the Magistrate
The inquiry before the Magistrate is one of the most significant stages of an extradition proceeding.
Under Section 7 of the Extradition Act, 1962, when the fugitive appears or is brought before the Magistrate, the Magistrate conducts an inquiry in a manner broadly similar to the powers exercised in a case triable by a Court of Session or High Court.
The Magistrate may consider evidence produced in support of the foreign State’s request as well as evidence produced on behalf of the fugitive. This may include evidence relating to whether the offence is an extradition offence or whether the offence is of a political character, where such an issue is legally relevant.
The inquiry is therefore not an empty formality. The person sought has an opportunity to contest the extradition request on legally recognised grounds.
Step 6: Determination of Prima Facie Case
At the conclusion of the inquiry, the Magistrate considers whether a prima facie case has been made out in support of the foreign State’s requisition.
If the Magistrate concludes that a prima facie case has not been established, Section 7(3) requires the Magistrate to discharge the fugitive criminal.
If, on the other hand, the Magistrate finds that a prima facie case has been established, Section 7(4) permits the Magistrate to commit the fugitive to prison to await the orders of the Central Government.
The Magistrate then submits the result of the inquiry to the Central Government. Any written statement that the fugitive wishes to place before the Central Government must also be forwarded along with the report.
This distinction is important: the Magistrate conducts the statutory inquiry, but the final decision regarding surrender is taken by the Central Government.
Step 7: Decision of the Central Government
After receiving the Magistrate’s report, the Central Government considers whether the fugitive criminal should actually be surrendered to the requesting State.
Under Section 8 of the Extradition Act, 1962, if the Central Government is of the opinion that the fugitive ought to be surrendered, it may issue a warrant authorising the custody and removal of the person and his delivery to the requesting State at the place and to the person specified in the warrant.
Therefore, an important feature of the Indian extradition framework is that the process involves both judicial inquiry and executive decision-making.
Step 8: Surrender of the Person to the Requesting State
Once the Central Government orders surrender, arrangements are made for the custody and removal of the person in accordance with the applicable law and treaty.
The person is thereafter handed over to the authorities of the requesting State through the prescribed procedure.
The process does not end merely with the Magistrate finding a prima facie case. The Magistrate’s finding is followed by consideration by the Central Government before the actual surrender takes place.
Role of the Central Government in Extradition Proceedings
The Central Government plays a central role in extradition proceedings in India.
The Ministry of External Affairs is India’s Central Authority for extradition matters, with its CPV Division functioning as the nodal division for processing extradition requests.
Its functions may broadly include:
- Receiving Extradition Requests
Foreign extradition requests are received through diplomatic channels and processed by the Central Government in accordance with the applicable treaty or arrangement.
- Examining the Request
The Government examines the request, supporting documents, identity-related material, applicable treaty provisions and relevant legal requirements.
- Initiating the Magisterial Inquiry
Where appropriate, the Central Government may issue an order under Section 5 directing a competent Magistrate to conduct the extradition inquiry.
- Considering the Magistrate’s Report
After the inquiry, the Magistrate submits the report to the Central Government. The Government then considers the report along with any written statement submitted by the fugitive.
- Taking the Final Decision on Surrender
If the Central Government concludes that the person should be surrendered, it may issue the warrant contemplated by Section 8 for custody and removal of the fugitive to the requesting State.
- Considering Restrictions on Surrender
The Act also contains provisions dealing with restrictions on surrender, discharge of fugitive criminals and competing requisitions. Sections 29, 30 and 31 are particularly relevant to the Central Government’s powers and the circumstances affecting surrender.
Thus, the Central Government is the principal executive authority responsible for coordinating India’s extradition relations with foreign States.
Role of the Magistrate in Extradition Proceedings
The role of the Magistrate is equally important because the extradition request must undergo a judicial inquiry before the final executive decision is taken in the procedure under Chapter II of the Act.
The Magistrate’s principal functions include:
- Arresting the Fugitive Pursuant to the Statutory Process
Upon receiving an order under Section 5, the Magistrate issues a warrant under Section 6 for the arrest of the fugitive.
- Conducting the Extradition Inquiry
Under Section 7, the Magistrate examines the case and exercises appropriate jurisdiction and powers for the purpose of the inquiry.
- Considering Evidence
The Magistrate considers evidence produced by the requesting State as well as evidence produced on behalf of the fugitive. The fugitive may raise legally recognised objections, including issues concerning whether the alleged offence qualifies as an extradition offence.
- Determining Whether a Prima Facie Case Exists
If no prima facie case is established, the Magistrate is required to discharge the fugitive. If a prima facie case is established, the Magistrate may commit the fugitive to prison pending the Central Government’s decision.
- Preparing and Forwarding the Inquiry Report
The Magistrate forwards the result of the inquiry to the Central Government along with any written statement that the fugitive wishes to have considered.
It is therefore important to understand that the Magistrate does not finally order extradition merely by finding a prima facie case. The Magistrate’s function is to conduct the statutory inquiry and report its result, while the final surrender decision under Section 8 is taken by the Central Government.
Is Extradition Automatic If India Has a Treaty With Another Country?
No.
The existence of an extradition treaty does not create an automatic right in the requesting country to obtain custody of a person.
The requesting State must satisfy the requirements of the applicable treaty and Indian law. The request may be examined on questions such as identity, extradition offence, supporting evidence, dual criminality where applicable, procedural requirements and treaty-specific grounds for refusal.
The Ministry of External Affairs itself explains that extradition from India requires a bilateral treaty, agreement or arrangement, while a relevant multilateral convention may also provide a legal basis where India and the requesting State are parties to it and the Central Government treats the convention accordingly.
Moreover, the procedure can differ depending upon the legal framework applicable to the requesting State. The MEA notes that proceedings under Chapter III of the Extradition Act concerning certain extradition arrangements can be more streamlined than the procedure under Chapter II; in such cases, the requirement of establishing a prima facie case may be treated differently according to the applicable statutory and treaty framework.
This is why an extradition case should always be examined by looking at three things together: the Extradition Act, the applicable treaty or arrangement, and the facts of the individual case.
Conclusion
The extradition process in India is a combination of international cooperation, executive decision-making and judicial scrutiny. A foreign State cannot simply demand that India hand over a person. The request must pass through the legal framework established by the Extradition Act, 1962 and the applicable treaty, agreement, arrangement or convention.
The Ministry of External Affairs, acting as the Central Authority, processes and examines extradition requests and plays a decisive role in the final surrender decision. The Magistrate, on the other hand, conducts the statutory inquiry, considers the evidence and objections of the fugitive, and determines whether the prima facie threshold prescribed by the applicable procedure is satisfied.
Understanding this division of responsibility is particularly important in extradition matters because the legal remedies and strategy available to a person sought for extradition can depend upon the stage at which the proceedings are pending.
In the next part, we will examine bail in extradition cases, cancellation of non-bailable warrants (NBW), whether extradition can be challenged before Indian courts, and the difference between extradition, deportation and rendition.