Ordinarily, every state exercise and enjoys complete jurisdiction over all the person within its jurisdiction, but sometimes there may be cases where a person after committing crime runs away to another country. In such a situation, the state finds itself helpless to exercise jurisdiction to punish such person. The term extradition denotes whereby under a treaty or upon a basis of reciprocity one state surrenders to another state at it request a person accused or convicted of a criminal officer. Starke observes that when Asylum stops, extradition begins. The practice of extradition relates back to the beginning of Islam in Arab, when tribes of Quraish made treaty of Hudaibiya with Holy Prophet (PBUH) which specifically included a provision to extradite their criminals.
Meaning of Extradition:
Delivery, handing over or surrender of an accused or convict person from one state to another.
Definition of Extradition:
The surrender of a person, accused or convicted of an offence, by the state in the territory of which he has taken refuge, to the state in whose territory, the crime has been committed, or which has convicted him of that crime.
Basis of Extradition:
Aut Punier Aut Debere:
The runway offender must be punished by the refugee state or surrendered to the state which allege him of that offence.
Object of Extradition:
- To ensure that serious crimes do not go unpunished.
- The best state of tying the offender is state on whose territory the crime has been committed.
Reasons for trying offenders by requesting state:
- The requesting state is only state where evidence is easily and freely available.
- The requesting state has the greatest facilities for ascertaining the truth of the alleged crime.
- It is the requesting state only and exclusively which has the greatest interest in the punishment of the offender whose law, the offender has been alleged to have violated.
Who can be extradited:
The requesting state may claim a runaway offender of following categories:-
- Its own national
- National of third state.
Is a State duty bound to grant Extradition:
- No General rule.
- International law does not recognize any duty to accept the request of extradition. There is no general rule under international law which binds a state to grant Extradition.
Under Extradition Treaty:
Only in case of an extradition treaty, an injured state can claim run away offender to the other state party.
State of Madras vs G.C. Memo (1954):
It was held that Extradition of persons, except under exceptional cases, is governed under bilateral treaty or any regional arrangement.
In Good Faith:
A state may surrender the runaway offender to requesting state in good faith and for the sake of International peace and justice.
Lockerbie Case, 1992:
It was held that in case of more than one state has jurisdiction over on offence a state can insist on the extradition of a defendant from a state which is willing to prosecute the offence itself.
Exception to Extradition:
There must be a treaty between the requesting state and the state of which the accused is a citizen.
Ganga Hijacking Case:
LHC refused to extradite Sikh Hijackers to India on the ground that there is no treaty between India and Pakistan for extradition of such criminals.
Under International law, a person cannot be extradited who committed a political crime. In order to constitute a political crime it is necessary that there should be two or more political parties who strive for imposing their own govt and if any offence is committed by any political party for above mentioned purpose that it would be called political crime.
Under International law, a person cannot be extradited who committed a religious crime.
Example: Salman Rushdi committed a religious crime. Many Islamic countries demanded for his extradition.
The offence must be common between the state because certain offences are not considered to be punishable offence.
Under International law, military crime cannot be extradited.
Extradition Act, 1972, provides that fugitive criminal should not be extradited for political, military and religious crimes. But in case of Genocide they can be extradited.
Prima Facie Case:
There should be sufficient evidence for crimes relating to extradition.
Rules of Specialty:
The requesting state should not try the fugitive demanded for an offence other than the offence for which he was extradited.
US vs. Rauscher:
It was held that Rausher may be tried only for that offence for which extradition was granted.
Crime in Both Countries:
The crime for which extradition is claimed should be a crime in both countries.
Fulfillment of Formalities:
All other formalities which are necessary for extradition must also be carried out.
No Trifling Case:
Trifling cases are not entertained as they are tedious and complicated, without any effect and purpose: