Understanding Extradition Laws in India

Guest blog by Pallavi Mohan

A recent decision of the Supreme Court involving Abu Salem, a convicted gangster, has brought extradition arrangements between India and other countries to the forefront. Abu Salem had been extradited to India from Portugal in 2005. He was bound to serve out his 25-year sentence in Indian jails till the year 2030. However, after that he would have to be released to Portugal as per the extradition agreement between India and Portugal. The agreement is that he cannot be given a death sentence or be imprisoned for more than 25 years as a punishment for his crimes.

What is “extradition”?

Extradition is the process of one country handing over a person accused or convicted of a crime in another country to the law enforcement of the other country.  The formal authority over the person shifts to the country where the person is transferred. 

The crime for which the person is being transferred should also be a crime under the law of the country which is transferring the person.  

In India, the extradition process is governed by the Extradition Act of 1962 or through bilateral treaties or extradition terms or international conventions that India has entered with other countries. Currently, India has extradition treaties with 48 countries and extradition arrangements with 12 countries. 

How does the process of extradition take place?

The steps to extradite an accused or convicted are: 

• The Investigating Agency (for example, the CBI) or the Court sends a request for extradition through the Ministry or Department of Home of the concerned State/UT to the IS-II division of the Ministry of Home Affairs (MHA). 
• After examining the request, the MHA may send the request back for correction of errors or send it to the CPV division of the Ministry of External Affairs (MEA).
• After examining the request, the MEA may send the request back for rectification to the Investigating agency or may forward it to the Indian embassy abroad to forward it to the concerned country. 

Why did the question of extradition in Abu Salem’s case reach the Supreme Court? 

Despite the clear terms of Salem’s extradition, two different trial courts in 2015 and 2017, on two different charges, gave sentences of life imprisonment to Salem. He challenged both these sentences in the Supreme Court on the ground that India was violating the ‘solemn sovereign assurance’ that it had given Portugal at the time of his extradition.

The Supreme Court decided that India should honour the assurance made to Portugal and accordingly could detain Salem for only 25 years. So, either the President (on the advice of the Central Government) can commute his sentence in terms of Article 72or the Government can do it in terms of Section 432 or 433 of the Criminal Procedure Code, which allows for the suspension and commutation of sentences.