Meaning of Extradition –
The word extradition is derived from two Latin words EX and Tradition. Generally it means “delivery of criminals” or “handing over to absconding”.
When a person flees to another state after committing a crime, the surrender of the criminal person by the other state at the request of that country is called extradition.
According to Oppenheim – ‘The extradition of a person accused or convicted of an offense to the State in which he is accused of an offense or has been convicted of an offence, by the State within whose territory he resides.’
It is clear from the above definition that two states are involved in extradition.
First – the territorial state ie the state where the accused is found.
Second – the requesting state i.e. the state in which the offense has been committed.
The person seeking the return of the State is called the requesting State because the return of a State can be made by the Territorial State only at the request of the other State. The request is usually made through diplomatic channels.
(i) Willingness to punish the offender.
(ii) to prevent offences.
The following are the essential conditions for extradition:
1. 1. Political criminals should not be extradited.
2. Military criminals are not extradited.
3. Extradition is based on a bilateral treaty.
4. For extradition, formal prayer is necessary and other formalities must be fulfilled.
5. The crime for which extradition takes place should be declared a crime in both the countries concerned, this is called the rule of double criminality.
6. The offense of extradition requires sufficient evidence. In other words the offense should be such that it appears at first glance to be an offense .
7. The extradition of a criminal is for a particular offense and that country can only prosecute that criminal for which he has been extradited.
Reasons for non extradition of political criminals
1. Political criminals are not as dangerous to the regional state as ordinary criminals can be.
2. The purpose of taking asylum of a political criminal in other countries is not the same as that of an ordinary criminal.
3. If political criminals are extradited, there is a possibility that they will not be treated fairly.
4. This rule also provides protection to a political offender from any means of extra-legal nature.
Extradition law in India – The first extradition act was enacted in India in 1903. Earlier, extradition to India was done on the basis of British Act 1870.
At present, the Indian Extradition Act has been implemented in 1962. This Act provides under section 2(d) that all extradition treaties entered into before 15th August 1947 shall be binding on India.
Extradition treaty has been defined in section 2(g) of the 1962 Act.
At present, the extradition method is based on bilateral treaties and national subjects. Since these rules are followed in many states, it can be assumed that they have become the general rule of international law.