Extradition proceedings in India are covered by both domestic legislation and bilateral treaties. The domestic legislation governing the extradition process is the Extradition Act 1962 (Extradition Act). The Extradition Act, together with the applicable bilateral treaties, arrangements and international covenants govern the process, terms and conditions of extradition. The Extradition Act provides for extradition of fugitive criminals to foreign states from India. The extradition of a foreign fugitive from India is governed by a bilateral extradition treaty, agreement or arrangement. In the absence of a bilateral extradition treaty, agreement or arrangement, a relevant multilateral convention providing for extradition may also be used as a legal basis for the extradition of fugitive criminal.
In addition, the Ministry of External Affairs (MEA) has issued a comprehensive set of guidelines titled ‘Guidelines on Mutual Legal Assistance in Criminal Matters’ (Guidelines), which outlines the rules and procedures for submitting an extradition request.
The Guidelines can be accessed here.
The Extradition Act is available here.
Answer contributed byIndia currently has extradition treaties with 48 countries. India has also entered into extradition arrangements with 10 countries. These arrangements have been entered into pursuant to section 3(4) of the Extradition Act, which provides that in the absence of a bilateral extradition treaty, the central government may, by notified order, treat any Convention to which India and a foreign state are parties, as an extradition treaty made by India with that foreign state, providing for extradition in respect of the offences specified in that Convention.
The register of treaties and arrangements entered into by India are available here.
Answer contributed byIndia does not have a special extradition arrangement with any foreign country based on geographic proximity or on account of political, legal or economic linkages. Having said that, in the recent past, India has benefitted from its political linkages with certain countries in processing the transfer of fugitive criminals even in the absence of an express extradition arrangement. For instance, India does not share an express extradition arrangement with China. However, as per information in the public domain, it is understood that in April 2023, China gave, in principle, approval to extradite a fugitive accused of extortion, threat to life, murder and other offences in India.
Answer contributed byYes, extradition of a fugitive criminal is possible where a foreign state does not have a pre-existing extradition treaty (whether bilateral or multilateral) with India. Section 3(4) of the Extradition Act provides that in the absence of a bilateral extradition treaty between India and any foreign state, the central government may, by notified order, treat any convention to which India and a foreign state are parties, as an extradition treaty made by India with that foreign state, providing for extradition in respect of the offences specified in that Convention.
Accordingly, where a foreign state has no bilateral or multilateral extradition treaty with India, the foreign state may request the Indian government to treat an international convention that both India and the requesting country have signed as the governing extradition treaty.
For example, extradition arrangements with Italy and Croatia have been entered into by India owing to the fact that India, Italy and Croatia are parties to the 1988 UN Convention against Illicit Traffic in Narcotics Drugs and Psychotropic Substances, and extradition pursuant to these arrangements are confined to crimes related to this Convention (ie, to illicit trafficking in narcotics, drugs and psychotropic substances).
In addition, extradition may be possible where the international convention provides for it. For instance, in the case of Abu Salem Abdul Qayoom Ansari, an accused person in the Bombay terrorist bombings in 1993, India was able to secure the extradition of the fugitive criminal from Portugal back to India. Although Portugal and India did not have an extradition treaty at the time, the request for extradition was made by India relying on the assurance of reciprocity in international law, and in particular, the International Convention for Suppression of Terrorist Bombings, to which Portugal and India are signatories. The Convention provides for extradition for certain extraditable offences where the state parties to the Convention do not make extradition conditional on the existence of a treaty.
Answer contributed byExtradition requests from non-treaty partners are possible where India has entered into a special extradition arrangement, pursuant to section 3(1) of the Extradition Act. Under powers vested in section 3(1) India has entered into extradition arrangements with foreign states agreeing to the applicability of the Extradition Act.
Further, section 3(4) of the Extradition Act provides that in the absence of a bilateral extradition treaty between India and any foreign state, the central government may, by notified order, treat any convention to which India and a foreign state are parties, as an extradition treaty made by India with that foreign state, providing for extradition in respect of the offences specified in that Convention. Accordingly, these extradition arrangements may allow extradition for specific offences only.
In addition, ad hoc requests may be made on the basis of an ‘assurance of reciprocity’. The Guidelines issued by the Indian Ministry of External Affairs provide that where no bilateral or multilateral treaty, arrangement or international convention exists, a request for mutual legal assistance (including extradition) may be made on the basis of assurance of reciprocity.
An assurance of reciprocity is a promise that the requesting country will provide the requested country with the same type of assistance in the future, should the requested country ever be asked to do so. It is a stand-alone promise and may be used for ad hoc extradition requests in the absence of any treaty or arrangement between the foreign state and India.
Answer contributed byIn the case of a foreign state with which India has an extradition treaty, the extraditable offence is typically provided in such a treaty. Illustratively, the extradition treaty between India and France provides that an offence punishable by a term of imprisonment for a period of at least two years is an extraditable offence.
In the case of foreign states without any extradition treaty or arrangement with India, any offence that shall be punishable with imprisonment for a term that shall not be less than one year under the laws of India or of a foreign state may be considered an extraditable offence.
Answer contributed byYes, dual criminality forms the basis of most extradition treaties of India with foreign states. In terms of the principle of dual criminality, an extradition request can be entertained by a state only if the conduct for which the extradition of the fugitive criminal is sought is a punishable offence in the requesting state as well as the requested state. Both the countries must criminalise same or similar conduct and the nomenclature of the offence or the punishment for such offence need not be identical. The ‘dual criminality’ is assessed based on examination of the conduct and the essential ingredients of the offences in both countries.
For instance, India is currently seeking the extradition of Vijay Mallya from the UK. Accordingly, when deciding on the extradition request, courts in the UK had to be satisfied that the principle of dual criminality had been met, in accordance with the terms of the India–UK Extradition Treaty. Mallya has been charged by the Indian authorities under section 420 of the Indian Penal Code, 1860 for the offence of ‘cheating and dishonestly inducing delivery of property’. The UK offences relating to fraud and embezzlement criminalise similar acts. Accordingly, since the acts committed by Mallya are considered offences in both the India and UK (albeit using different nomenclature), the principle of dual criminality is satisfied in this case.
Answer contributed byIn cases where a fugitive criminal cannot be returned or surrendered to a foreign state, the central government of India may take appropriate steps to prosecute such fugitive criminals in India. An extraditable offence committed by any person in a foreign state shall be deemed to be an offence committed in India and such person shall be liable to be punished in India.
Answer contributed byThere is no universal format for making an extradition request, as it depends largely on the terms of the bilateral treaties or arrangements. The Guidelines provide a set of rules for making an extradition request, such as that the request should be in writing unless it is urgent, and that it should contain the nature of investigation, prosecution or proceedings, the degree of confidentiality required, and any time limit within which the request should be executed, etc.
The extradition request and all the supporting documents should be provided in English and wherever necessary, the request and the supporting documents should be translated into the language required by the requested state. The translated copies (if any) should be duly certified by the translator and authenticated by the concerned Investigating Agency. For instance, while granting an in-principle approval to extradite a fugitive to India, China requested the Indian authorities to send its extradition request in Mandarin.
The main points to be covered in an extradition request are:
The Guidelines (Part III: Form, Content and Language of Request) can be accessed here.
Answer contributed byThe extradition of fugitive criminals in India is done as per the provisions of the Extradition Act. In the case of foreign states with extradition treaties or arrangements with India, the extradition process shall also be governed by the provisions of such treaties or arrangements. The Ministry of Home Affairs is the central authority or nodal agency for extradition of fugitive criminals in India.
The exhibits and depositions (whether received or taken in the presence of the person against whom they are used or not) and copies thereof and official certificates of facts and judicial documents stating facts may, if duly authenticated, be received as evidence.
If the magistrate is of the opinion that a prima facie case is made out in support of the requisition of the foreign state, he or she may commit the fugitive criminal to prison to await the orders of the central government and shall report the result of his or her inquiry to the central government, and shall forward together with such report, any written statement that the fugitive criminal may desire to submit for the consideration of the central government.
However, if no prima facie case is made out for the arrest of the fugitive criminal according to the magistrate, the fugitive criminal shall be discharged.
The magistrate before whom the person apprehended is produced, may conduct an inquiry into if the endorsed warrant is duly authenticated and the offence of which the person is accused or convicted is an extradition offence. The magistrate shall forward a report on the inquiry to the central government and shall also forward any written statement that the fugitive criminal may desire to submit to the central government. If the magistrate is satisfied, he or she shall commit such person to prison and shall send a report to the central government about such committal. If the magistrate is not satisfied on the above two points, he or she may detain such person in custody or release him or her on bail until further instructions from central government. At any time after committal of the fugitive criminal to prison, the central government may issue a warrant for custody and removal of the fugitive criminal to the foreign state.
A request for surrender or return of a fugitive criminal to India may be made by the central government to a diplomatic representative of the foreign state in Delhi or to the government of that state through diplomatic channels or any other settled mode of communication between the states.
A warrant for arrest of the fugitive criminal in the foreign state may be issued by the magistrate in the format prescribed by the foreign state. Under such a warrant, the fugitive criminal may be brought into India and delivered to the proper authority to be dealt with according to law.
However, in cases where any person accused or convicted of an offence, which, if committed in India would be an extradition offence, is surrendered or returned by a foreign state, such person shall not, until he or she has been restored or has had an opportunity of returning to that state, be tried in India for an offence other than:
In the absence of a formal treaty/arrangement/convention, ad hoc requests may be made on the basis of an ‘assurance of reciprocity’. The Guidelines issued by the Indian Ministry of External Affairs provides that where no bilateral or multilateral treaty, arrangement or international convention exists, a request for mutual legal assistance (including extradition) may be made on the basis of assurance of reciprocity.
An assurance of reciprocity is a promise that the requesting country will provide the requested country with the same type of assistance in the future, should the requested country ever be asked to do so. It is a stand-alone promise, and may be used for ad hoc extradition requests in the absence of any treaty or arrangement between the foreign state and India.
Answer contributed byThe extradition proceedings involve both the administrative wing as well as the judicial wing. The extradition request is initially received by the administrative wing of the central government (ie, the Ministry of External Affairs). If the central government deems fit, it may issue an order to the judicial magistrate to conduct an inquiry and submit a report. Typically, the nature of the offence and the prima facie validity of the request are examined at this stage. The Extradition Act does not provide for any specific factors that are to be considered by the central government at the time of ordering an inquiry by the magistrate.
Answer contributed byThe Extradition Act provides for provisional arrest of a fugitive criminal based on an urgent request from a foreign state for the immediate arrest of such criminal. Typically, such a request is addressed by the foreign state to the central government, which may request the competent judicial magistrate to issue the warrant for arrest. The fugitive criminal who has been provisionally arrested shall be discharged upon expiry of 60 days after the arrest if no formal request for surrender or return of such fugitive criminal is received within such period.
Answer contributed byFor the provisional arrest of a fugitive criminal, an arrest warrant is required to be issued by a competent magistrate in India. The Supreme Court of India, in the case of Bhavesh Jayanti Lakhani v State of Maharashtra (2009) 9 SCC 551, has held that an Interpol red notice is not a warrant of provisional arrest. Hence, an Interpol red notice may not in itself be sufficient to provisionally arrest a fugitive criminal in India. Typically, police authorities intercept and/or detain a fugitive criminal should his name appear in an Interpol red notice and then, through the central government, they may reach out to the state that sought the issuance of the Interpol red notice intimating them of the detention of the fugitive criminal and seek instructions. Based on the instructions received, the police authorities may produce the fugitive criminal before the competent court seeking warrant of arrest. The court may thereafter make a preliminary inquiry to decide if such warrant of arrest should be issued and the fugitive criminal remanded in custody.
Answer contributed byThe arrest warrant in the case of a fugitive criminal may be issued in the following cases:
The arrested fugitive criminal shall have, among others, the rights:
Additionally, the fugitive criminal who is arrested shall be entitled to basic necessities and medical facilities, as may be required.
Answer contributed byYes, bail is available to persons who are detained under the Extradition Act 1962. A fugitive criminal may apply for anticipatory bail (which is sought in anticipation of an arrest) or regular bail (which is sought after an arrest has been made).
Answer contributed byFor the grant of bail under the Extradition Act, the offence for which the fugitive criminal is accused or convicted in a foreign state shall be treated as if such offence were committed in India.
Under Indian law, bail is the rule and retaining the accused in custody is the exception. Offences under Indian law are classified as either bailable or non-bailable, typically based on the seriousness of the offence. In the case of a bailable offence, bail is available as a matter of right to the accused (subject to payment of the bail amount). In the case of a non-bailable offence (which are generally more serious offences), bail is granted only at the discretion of the court.
Typically, the court will consider the following factors in determining the grant of bail to the person under custody:
For offences that are punishable by life imprisonment or death, bail is usually not granted where there are reasonable grounds to believe that the accused actually committed such offence.
For instance, Christian Michel James who was extradited to India in connection with the Agusta Westland case filed an application seeking bail on the grounds that he has completed half of the maximum sentence and is therefore entitled to bail as per Indian criminal procedure code. On 7 February 2023, the Supreme Court of India rejected his bail application but allowed him to approach the trial court afresh for the grant of regular bail and demonstrate his case for satisfaction of the above-mentioned factors to merit bail.
Answer contributed byYes, courts have the power to impose conditions when granting bail. As the power to grant bail and impose conditions is discretionary, courts may determine the conditions on a case-by-case basis in the interests of justice.
Typically, the conditions imposed on any accused person at the time of grant of bail may include the following:
Section 31 of the Extradition Act sets out the following circumstances under which a fugitive criminal shall not be surrendered or returned to a foreign state:
The above bars to extradition are mandatory in that if one of the above applies, the fugitive offender shall not be extradited. However, there may be various other grounds that can be raised to resist extradition, depending on the terms of the relevant extradition treaty or arrangement with the foreign state in question. Typically, the following considerations may also be grounds for refusing an extradition request:
These grounds will have to be supported by relevant evidence, which must be duly authenticated. The burden of proof required to be discharged is that the magistrate considering an extradition request should be satisfied that either a prima facie case has been made out by the evidence that warrants the fugitive criminal being extradited, or that a prima facie case has not been made out in support of the extradition request by the requesting state.
Answer contributed byIndia does not bar the extradition of its own nationals. However, the extradition of Indian citizens depends on the bilateral or multilateral treaty, or arrangement, with the foreign state in question. Several treaties with foreign states preclude the extradition of their nationals to India, in which case India will also not extradite its nationals to those foreign states.
For instance, the India–UAE Extradition Treaty provides that nationals of the contracting states shall not be extradited to the other contracting state, on the condition that the requested state prosecute the fugitive criminal in domestic proceedings. On the other hand, both the India–US and India–UK Extradition Treaties specify that extradition shall not be refused on the basis that the fugitive criminal is a national of the requested state.
If the fugitive criminal were to either give up his or her Indian nationality or acquire it after the extraditable offence was alleged to be committed, this may affect the extradition of the fugitive criminal.
For instance, Mehul Choksi is a fugitive Indian-born businessman who gave up his Indian nationality in favour of Antiguan nationality, a country where he is currently living. This has led to complications for his extradition to India.
Indian law on this issue is not yet settled, and it is likely that in such scenarios, political considerations may play a greater role in determining whether extradition is carried out. It is worth noting in this context that India does not permit dual nationality.
Answer contributed byThe Extradition Act does not itself provide for any consideration to be given to potential breaches of human rights. However, the Supreme Court of India has held that human rights should be taken into account and balanced against the need to tackle transnational crime when determining extradition cases. In particular, the right to a fair trial should be taken into account.
Separately, if the bilateral treaty or arrangement between India and the foreign state in question provides for consideration to be given to potential breaches of human rights, this factor will be taken into account at the time of making a decision on the extradition request.
Answer contributed byThe Extradition Act does not provide that a fugitive offender may consent to extradition, and therefore does not provide for a special procedure to be followed in such cases. That said, when a fugitive offender appears or is presented before a magistrate, he or she may choose not to contest the extradition request.
Answer contributed bySection 21 of the Extradition Act contains a speciality provision. It provides that when a person is extradited from a foreign state to India, such person shall only be tried in India for the offence in relation to which he or she was surrendered or returned to India, or any lesser offence disclosed by the facts proved for the purposes of securing his or her surrender or return, or any other offence for which the foreign state has given its consent to try the fugitive criminal.
Similarly, section 31(c) of the Act provides that a fugitive criminal shall not be extradited by India unless the law of the requesting foreign state contains a provision, or unless the foreign state has agreed under the extradition treaty or arrangement, that the fugitive criminal shall not be tried in that foreign state for an offence other than the one for which he or she was surrendered or returned, or any lesser offence disclosed by the facts proved for the purposes of securing his surrender or return, or an offence in respect of which the central government has given its consent.
Answer contributed byExtradition proceedings involve both an administrative as well as the judicial element. The extradition request is initially received by the administrative wing of the central government (ie, the Ministry of External Affairs). If the central government deems fit, it may issue an order to a judicial magistrate to conduct an inquiry and submit a report. Typically, the nature of the offence and the prima facie validity of the request are examined at this stage. The Extradition Act does not provide for any specific factors that are to be considered by the central government at the time of ordering an inquiry by the magistrate.
If the magistrate is of opinion that a prima facie case is made out in support of the requisition of the foreign state, he or she shall report the result of his or her inquiry to the central government. After receiving the report from the magistrate, if the central government is of the opinion that the fugitive criminal should be surrendered to the requesting state, it may issue a warrant for the custody and removal of the fugitive criminal and for his delivery at a place and to a person to be named in the warrant.
Accordingly, the central government makes the final determination of whether to grant an extradition request. The Extradition Act does not provide for any specific factors that are to be considered by the central government when issuing this warrant for the surrender and removal of the fugitive criminal.
However, the Extradition Act does specify certain factors that the central government may consider when discharging any fugitive criminal. Section 29 of the Extradition Act provides that the central government may direct any warrant issued under the Extradition Act to be cancelled, may discharge any fugitive criminal, or may stay the proceedings under the Extradition Act, if it appears to the central government that the following reasons apply:
In coming to its decision, the central government will also need to bear in mind the terms of any relevant extradition treaty or arrangement and the provisions of section 31 of the Extradition Act, which provides for restrictions on granting extradition requests. In practice, however, political factors such as diplomatic relations between India and the requesting state and prior history of reciprocal extradition are likely to have a greater influence on the final decision.
Answer contributed byA fugitive criminal does not have a statutory right to appeal decisions taken in extradition proceedings under the Extradition Act. However, the decision of the magistrate or the central government can be challenged by way of a writ petition filed before a High Court or the Supreme Court, alleging violation of any fundamental rights of such fugitive criminal.
An order of the High Court passed in such writ petition can appealed to either a larger bench of the same High Court (depending on the size of the bench that first heard the matter) or to the Supreme Court of India.
Writ jurisdiction allows the High Courts and Supreme Court to examine whether a judicial or administrative decision is incorrect on the grounds of perversity, patent illegality, irrationality, want of power to take the decision and procedural irregularity. The court usually will not go into the merits or facts of the matter.
Answer contributed byThere are no prescriptive timelines provided in the Extradition Act. The extradition process may be completed within a year or may last for several years, particularly if an appeal against an extradition decision is made to a high court or the Supreme Court. Litigation proceedings in India may take several years to be decided.
For example, in one case, Milen Ivanov Davranski v Union of India, 2021 (223) AIC 405, the request for extradition was received by the central government in July 2020, and the central government thereafter requested a magistrate to inquire into the matter. The magistrate recommended the extradition by an order dated 6 November 2020. The fugitive criminal filed a writ petition before the Delhi High Court. Due to the pendency of domestic criminal proceedings against the fugitive criminal, the Delhi High Court held that extradition could not be allowed in a judgment dated 7 April 2021.
In another case (Union of India v Puneet WP (CRL) 1545 of 2021), the request from the requesting state was received in February 2010, after which the central government issued an order to a magistrate requesting an inquiry into the matter in June 2010. On 12 August 2021, the magistrate issued an order recommending extradition. On appeal before the Delhi High Court, it was contended by the accused that the treaty on the basis on which extradition was recommended came into operation only in January 2011 (ie, on the date the request was made there existed no treaty). By an order dated 17 August 2021, the Delhi High Court directed that the accused will not be extradited out of India until the culmination of the proceedings. The extradition proceedings are ongoing before the Delhi High Court and the accused is currently on bail.
Answer contributed byDomestic criminal proceedings will impact the extradition process. Section 31 of the Extradition Act provides that if a fugitive criminal has been accused of some offence in India (other than the offence for which he or she is sought to be extradited), or if he or she is serving a sentence for some conviction in India, he or she cannot be extradited until after he or she has been discharged, whether by acquittal of the offence, or by completion of his or her sentence after conviction.
Equally, asylum proceedings can also lead to a delay in extradition.
Answer contributed byThere are no prescribed guidelines or provisions relating to legal representation for the fugitive criminal. However, in general, any person detained by the police or appearing before a magistrate has the right to legal representation, and if the person cannot afford legal representation, the state shall be required to make provisions. In practice, upon detention or arrest of the fugitive criminal, the police will usually give him or her the opportunity to contact his or her attorney or other contacts in India.
The Extradition Act also does not provide that the requesting state has a right to legal representation. However, a magistrate has wide discretionary powers and may, in the interests of justice and if there are special circumstances, at his or her discretion, allow the requesting state to make submissions before the magistrate through its legal counsel. Similarly, at the appellate stages, the high court or Supreme Court may, at its discretion, allow the requesting state to be represented by and make submissions through legal counsel.