This note examines the width and application of India’s corpus of extradition law and its relationship with the executive power of deportation exercisable against foreigners. The laws of extradition and deportation are unique, they rest on an edifice of regular criminal law – indeed, both powers are, to varying degrees, exercised and reviewed by courts of session – but they stand apart for their non-adherence to regular criminal procedure. Even as special criminal laws they are distinct; both are chiefly concerned with removing foreigners from India, not subjecting them to confinement in India, and both grant the executive wide powers to bypass the safeguards built in to the criminal justice system. The questions of their conflict with regular criminal law have already been widely examined. More interesting questions arise in respect of the relationship between extradition and deportation, and of the conflict therein.
Inherited colonial dichotomy
India’s extradition law is contained in the Extradition Act, 1962 which repealed and replaced the Indian Extradition Act, 1903 and the Fugitive Offenders Act, 1881. The legacy of the previous statutes has a bearing on the scheme of the Extradition Act, 1962. Before India’s independence, ‘extraditions’ within the British Empire were governed by the Fugitive Offenders Act, 1881 and those with other ‘foreign countries’ by the Extradition Act, 1903. The reason for this distinction was that extraditions within the empire were pursued through a special procedure for the apprehending of fugitives and the committal of their cases for trial – treating the issue on the basis that the return of such fugitives was internal to the empire. However, in cases of ‘extraditions’ with other countries, there was a more stringent procedure of examining issues relating to the terms of the treaty, prima facie case, double criminality, the political exception and public interest considerations.
The Extradition Act, 1962 adapted the dichotomy between these two former dual procedures so that Chapter III of the Act dealt separately with extraditions amongst Commonwealth countries which had entered into an extradition arrangement with India, while Chapter II dealt with all other foreign countries and those Commonwealth countries which did not fall under Chapter III. The procedure in the cases of Commonwealth extraditions was simpler even though the wider public interest as well as political and other considerations to be kept in mind were equally applicable in both cases.
However, the Extradition Act, 1962 was amended in 1993 so that the reference to Commonwealth countries was, more or less, removed and the amended Chapter III now deals with any foreign State which has entered into an extradition treaty with India and in respect of whom the Indian Government thinks it expedient to apply the Chapter III procedure instead of applying the Chapter II procedure. Vestiges of the earlier reference to the Commonwealth survive; and, there is a reference to “Commonwealth countries” in the marginal heading to section 13 (in Chapter III) even though the text of section 13 comprehensively substitutes “foreign state” for the erstwhile Commonwealth reference . This is probably an oversight. For foreign countries that do not fall under Chapter III, the usual extradition procedure of Chapter II applies (see section 11).
Thus, it is clear that although the original deference according a special status to the British Empire and the Commonwealth has gone, the special procedure designed for them has been retained in Chapter III to enable special arrangements between India and some countries of its choice. This will acquire relevance in relation to India’s “extradition” relations with its immediate neighbours, whether in the context of the South Asian Association for Regional Cooperation (SAARC) or otherwise; and, also impact on special arrangements in respect of exchange and extradition of terrorists. After 1993, for example, the Indian government invoked the special procedure in Chapter III in respect of Bhutan’s requsition in Rongthong Dorji’s case, which was clearly politically motivated.
Dual, and very different, procedures
There is a crucial difference between the extradition procedures to be followed under Chapter II and Chapter III of the Extradition Act, 1962 respectively. In Chapter II proceedings (covering most countries) the “fugitive criminal” (the requisitioned person) is brought before a committing magistrate to determine whether a prima facie case is made in favour of the requisition by the foreign State (section 7(2)) and,
“shall, in particular, take such evidence as may be produced in support of the requisition of the foreign State, and on behalf of the fugitive criminal, including any evidence to show that the offence of which the fugitive criminal is accused or has been convicted is an offence of political character or is not an extradition offence”.
In Chapter III proceedings, which, after 1993, covers special countries designated by the Central Government, the magistrate’s scope of responsibility under section 17 is limited to being,
“satisfied on inquiry that the endorsed warrant for the apprehension of the fugitive criminal is duly authenticated and that the offence of which the person is accused or has been convicted is an extradition offence”.
The inquiry in this latter case is much more limited. A narrow interpretation suggests that the magistrate needs only to authenticate the warrant and verify that the offence is an extraditable one. The wider approach is to read all the limitations of extradition into the phrase “extradition offence” – other than those in Chapter II whose application is specifically excluded for Chapter III cases (section 11 of the Extradition Act, 1962).
Substantive principles of Indian extradition law
The general principles governing extradition contained in the Extradition Act, 1962 are:
- The magistrate must be satisfied that a prima facie case is made out in respect of the offence for which extradition is requested (section 7(2)and (3));
- The offence for which the accused is charged should not be of a political character (section 7(2) and section 31(1)(a)) read with section 31(2) and the Schedule);
- The offence should not be a non-extraditable one (section 7(2) read with section 2(c)(i));
- No one shall be extradited for an offence that is punishable with less than one year’s imprisonment (section 7(2) read with section 2(c) (ii));
- No extradition shall be made where the prosecution of that offence is barred by time under the laws of the requesting State (section 31(1)(b));
- The extradition shall only be for an offence for which a requisition has been made, or for a lesser offence, or some other offence to which the Indian government has consented (section 31(1)(c));
- No one may be extradited if they are accused of an offence in India, or is undergoing imprisonment after conviction for an offence in India (section 31(1)(d));
- No extradition shall be made if the Indian government feels that the requisition is for a trivial case, or is not made in good faith, or is not in the interests of justice, or that, for political reasons or otherwise, it is unjust or inexpedient to extradite the accused (section 29);
- An extradition will only be made where the general rule of double criminality is satisfied according to the treaty (section 2(c));
- An accused who is extradited can only be tried in that country for the offence for which he was extradited (section 21));
- Where the extradition is to a country where the punishment for the relevant offence is not death but life imprisonment, the extradition shall be made conditional upon the punishment of the accused in the foreign country with life imprisonment even if the same offence attracts the death penalty in India (section 34C).
In addition to the substantive safeguards built into extradition law, and listed in the preceding section, the Extradition Act, 1962 also maintains procedural due process while effecting an extradition from India. These are:
(a) In Chapter II cases –
(i) Due process has to be followed by the committing magistrate who shall, after receiving the requisition from the Indian government following the foreign State’s request, act as if she were dealing with a case constituting an offence triable by an Indian court of session (sections 4-7 and 9);
(ii) On receiving a report from the magistrate, the Indian government that must decide whether to extradite or not (section 8);
(b) In Chapter III cases –
(iii) The magistrate must examine the authenticity of the warrant and the extraditability of the offence (section 17);
(c) In both Chapter II and Chapter III cases –
(iv) Both the magistrate and the Indian Government, which makes the executive decision in respect of extradition, must bear in mind the substantive restraints on the extradition power (sections 29 and 31).
In addition, besides the legal and other due process constraints, the Indian Government possesses a vast reservoir of power not to extradite a person in the public interest if it wishes not to do so.
When extradition and deportation collide
There are special provisions in the Extradition Act, 1962 for injuncting the extradition of a person accused of, or undergoing imprisonment for, an offence in India. Section 31(1)(d) states:
“A fugitive criminal shall not be surrendered or returned to a foreign State or commonwealth country…if he has been accused of some offence in India, not being the offence for which his surrender or return is sought, or is undergoing sentence under any conviction in India until after he has been discharged, whether by acquittal or on expiration of his sentence or otherwise.”
This will apply to offences under the Foreigners Act, 1946 for as long as the accused is not discharged, acquitted or released after the expiration of a sentence.
But, by virtue of the non obstante clause, there is nothing to prevent the Indian government from using its powers under the Foreigners Act, 1946 to deport a person. Section 33 of the Extradition Act, 1962 states –
“Nothing in this Act shall affect the provisions of the Foreigners Act, 1946 (31 of 1946) or any order made thereunder.”
The non-obstante clause in section 33 greatly enlarges the power of deportation under the Foreigners Act so as to completely override any and all restraining considerations in the Extradition Act. Taken to its logical conclusions, the effect of such a provision would be to permit the deportation of an accused even if there is no prima facie case against him tested out in magisterial proceedings or where the accused is a political offender or where he is undergoing a sentence in an Indian jail following conviction for an offence in India.
Disguising extraditions through deportation
The wide width of the deportation power under the Foreigners Act, and its unfettered use at the discretion of the Indian government, has been repeatedly upheld by the judiciary. Courts have given a wider interpretation supporting these virtually untrammelled powers of deportation which are left for the decision of the authorities. On the width of the deportation power and judicial restraint in deportation matters, see Hans Muller AIR 1955 SC 367, Louis De Raedt (1991) 3 SCC 554, Giles Pfeiffer AIR 1996 Mad 322, Abdul Sattar AIR 1965 SC 810, Ibrahim AIR 1965 SC 618, Ananda Bhabani (1991) Mad LW (Cri) 313, and A. H. Magermans AIR 1966 Cal 552.
Giving such an overriding effect to the deportation power in the Foreigners Act would necessarily lead to unjust results to deprive the accused of valuable statutory due process and other substantive protections contained in the Extradition Act, 1962. Such deportations have been called “disguised extraditions” because they have the same effect as an extradition but without following the salutory requirements associated with normal extradition procedures in national and international laws. See O’Higgins “Disguised Extradition – The Soblen Case” 27 Mod. L. Rev. 521 (1964), and Thornberry “Dr. Soblen and the Alien Law of the United Kingdom” 12 ICLQ 414 (1963). The essays are responses to the notable Court of Appeals decision in R v. Brixton Prison (Governor), ex parte Soblen  3 All ER 64 that privileged the absolute power of the Aliens Order over the asylum claims of Robert Soblen, a Trotskyist Jew accused of espionage in the USA, rejected by Israel notwithstanding the right of Jews to Aliyah given by the Law of Return, and expelled by Britain. Rather than being deported, Soblen committed suicide en route to the airport.
Potential for judicial review
The broad width of section 33 of the Extradition Act, 1962 is not immune from constitutional challenge. But it is unlikely that such a challenge will succeed merely because the provision is overbroad. Courts will not readily restrain the power of the government to deport illegal immigrants or persons whose presence, the government feels, is not conducive to the public good. However, even though it would be an uphill task, this would not obviate a challenge to a particular deportation that is premised on the claim that section 33 of the Extradition Act, 1962 should be read down so that it does not provide blanket immunity to anything done under the Foreigners Act, 1946. The grounds of such a claim could be an arbitrary or unreasonable exercise of power under the Foreigners Act by virtue of the leave given under section 33 of the Extradition Act, 1962.
These matters have not been tested in a court of law. I believe that the few cases where some leeway has been given to recognising the limited rights of refugees must be confined to their facts, too much cannot be read into them. These cases are: NHRC (1996) 1 SCC 742, Nedumaran WPs 12298 & 12313/1992 (Madras High Court), Gurunathan WPs 6708 & 79168/1992 (Madras High Court), Digvijay Mote WA 354/1994 (Karnataka High Court), Malvika Karlekar WP 583/1992 (Supreme Court), Bogyi WP 1847/1989 (Guwahati High Court), Khy Toon WP 525/1990 (Guwahati High Court), Shah Gazai WP 499/1996 (Punjab & Haryana High Court), Ktaer Abbas Habib Al Qutaifi 1999 Cri LJ 919 (Gujarat High Court), and Lailoma Wafa WP 312/1998 (Delhi High Court). However, the possibility of a challenge to a specific disguised extradition through the deportation power cannot be ruled out.
Eventually, given the width of the Centre’s power to restrain an extradition or not deport a person, there is also a case for developing practices to govern situations where refugees are involved. This is yet another reason for a statutory protection to refugees who have a well founded fear of persecution so that they are not deported without due process in transgression of the rule of non-refoulement.