India-US Extradition Treaty

The U.S. President Donald Trump recently announced that his administration had approved the extradition of Tahawwur Rana to India.

• Charges Against Rana: Accused of providing support to Lashkar e Taiba (LeT), facilitating 26/11 attacks; charged under IPC and UAPA for murder and waging war against India.
• Legal Proceedings in the US: US courts upheld extradition, rejecting Rana’s claim under Article 6 of the treaty and concerns about torture in India.
• Next Steps in India: Upon extradition, Rana will face trial under NIA Special Court, with potential penalties including life imprisonment or death.

About Extradition

• Extradition is the legal process by which one country surrenders an individual accused or convicted of a crime to another country where the crime was committed. 
• It is based on bilateral or multilateral treaties between nations.
• Example of Extradition: Vijay Mallya Case (2020)  was ordered to be extradited from the United Kingdom to India on charges of financial fraud and money laundering.  However, legal proceedings delayed his return.

About India-US Extradition Treaty

• The India-US Extradition Treaty was signed between the two countries in 1997.
• Purpose: It establishes a legal framework for the extradition of individuals who have been charged with or convicted of serious offences in either country.
• Implementation: Between 2002 and 2018, the treaty had only facilitated the extradition of 11 fugitives from the US to India.
  • Nearly 60 extradition requests were still pending with the US government.

Extraditable Offences

• Minimum Punishment: Crimes eligible for extradition must carry a minimum punishment of one year of imprisonment, including financial crimes.
• Dual Criminality Principle: The offence for which extradition is sought must be considered a crime under the laws of both India and the United States.
• Territorial Scope: Extradition is granted irrespective of the location where the crime was committed.

Exceptions

• Political Offences: Political offences are not extraditable under the treaty.
• Crimes Outside Political Offences Exception:
• • Willful crimes against the head of government.
  • Aircraft hijacking.
  • Crimes against internationally protected persons.
  • Hostage-taking.
• Double Jeopardy: Extradition is not granted if the individual has already been convicted or acquitted in the requested country for the same offence.

Extradition Framework in India

• Legislation: The Extradition Act of 1962, which was significantly modified in 1993, governs the extradition of fugitives from India to foreign countries.
• Nodal Authority: The Ministry of External Affairs (MEA) is the designated authority responsible for handling extradition matters in India.
• Final Decision: The Government of India makes the final decision on extradition, which can be appealed in a higher court.
• Extradition Treaties and  Agreements:
• • India currently has extradition treaties with 48 countries, including the United States, the United Kingdom, and Bangladesh.
  • India also has extradition agreements with 12 countries.

Principles of Extradition

• Principle of Extraditable Offences: Extradition applies only to offences specifically mentioned in the treaty between two countries.
• Principle of Dual Criminality: The offence must be a crime under the laws of both the requesting and requested countries.
• Prima Facie Case Requirement: The requested country must be satisfied that there is sufficient evidence to establish a prima facie case against the accused.
• Rule of Speciality: The extradited person can only be prosecuted for the specific offence for which extradition was granted.
• Right to a Fair Trial: The extradited person must be ensured a fair trial, in line with international human rights law.
• Application Beyond Treaty Countries: Even in the absence of an extradition treaty, judicial and legal authorities may apply these principles when dealing with extradition requests.

Who Can Make an Extradition Request from India?

• Authority to Request: Only the Ministry of External Affairs (MEA), Government of India, can formally submit an extradition request to another country.
• Diplomatic Channels: The request is submitted through diplomatic channels to the concerned country.
• No Public Requests: Individuals or private entities cannot request extradition.

Which Countries Can India Make an Extradition Request To?

• Extradition Requests to Any Country: India can make an extradition request to any foreign country.
• Obligations of Treaty Partners: Countries that have an extradition treaty with India are obligated to consider India’s request for extradition.
• Extradition in the Absence of a Treaty:
• • If no treaty exists, extradition depends on the foreign country’s domestic laws and procedures.
  • The foreign country may agree to India’s request based on assurances of reciprocity.

Challenges Related to Extradition

• Legal and Procedural Delays: Extradition cases often face prolonged legal battles due to appeals, judicial reviews, and human rights concerns, delaying the process significantly.
• Dual Criminality Requirement: Extradition is only possible if the crime is recognized in both countries, creating loopholes when laws differ, especially in financial or cybercrimes.
• Political and Diplomatic Hurdles: Countries may deny extradition on political grounds or due to strained diplomatic relations, particularly in cases involving asylum claims.
• Human Rights and Fair Trial Concerns: Some countries reject extradition requests due to concerns about torture, unfair trials, or prison conditions in the requesting country.

Way Forward

• Strengthening Bilateral Treaties: India should expand and modernize extradition treaties, ensuring clear legal frameworks and faster resolution mechanisms.
• Enhancing International Cooperation: Collaboration with Interpol, UN conventions, and regional agreements can help streamline extradition and address procedural delays.
• Judicial and Legal Reforms: Faster judicial processing, digital evidence sharing, and mutual legal assistance agreements (MLATs) can improve extradition efficiency.
• Ensuring Fair Trial Assurances: India should provide legal and human rights assurances to increase trust and reduce objections from partner countries.