Answer By law4u team
Extradition treaties are crucial for facilitating the legal process of transferring individuals between countries to face criminal charges. In India, the process of entering into extradition treaties involves both executive and legislative branches. The question of whether India can independently enter into such treaties through executive action alone is governed by constitutional and legal provisions that balance diplomatic discretion with legislative oversight.
Legal Framework for Extradition Treaties in India
Executive Powers and Treaties
Under Article 73 of the Indian Constitution, the executive powers of the Union extend to the negotiation and signing of treaties and agreements with foreign countries, including extradition treaties. This empowers the President of India, acting on the advice of the Council of Ministers, to enter into such agreements.
The Ministry of External Affairs (MEA) is primarily responsible for negotiating and drafting extradition treaties on behalf of the Indian government.
Role of Parliament
While the executive negotiates and signs treaties, Parliament must approve any domestic legislation required to give effect to these treaties. The Extradition Act, 1962 is a key example, as it governs the legal process of extradition but must be amended or applied in accordance with new treaties or agreements.
The Parliamentary approval is necessary if the treaty requires domestic law changes or if it entails binding legal obligations under Indian law.
Extradition Act, 1962
The Extradition Act, 1962 provides the legal framework for extradition from India to other countries and vice versa. Under this Act, the Indian government can enter into bilateral or multilateral agreements for extradition, but these agreements must be consistent with the Act’s provisions.
For instance, the Act prescribes that a formal request for extradition must meet criteria such as dual criminality (the crime must be recognized in both countries) and must not involve political offences.
Treaty Negotiation Process
The executive (primarily the Ministry of External Affairs) holds discussions with foreign governments to negotiate the terms of extradition treaties. This typically includes outlining the crimes covered by the treaty, conditions of extradition, and any potential exceptions (e.g., political offences or the death penalty).
After the negotiation and drafting process, the treaty is signed by the respective diplomatic representatives.
Domestic Ratification
Once signed, the treaty needs to be brought before Parliament for approval if any legal modifications are required to implement the treaty domestically. For example, if a treaty expands or modifies the scope of extraditable offences, the Extradition Act, 1962 may need to be amended to reflect the changes.
If the treaty does not require changes to domestic law, the treaty’s provisions are adopted as binding on India once signed by the executive. Parliament is then informed, but does not necessarily vote on the agreement unless required.
Sovereign Discretion in Emergency Situations
In some cases, the executive may choose to enter into an extradition arrangement for urgent reasons (e.g., dealing with a specific criminal who is outside India’s jurisdiction) through executive agreements. However, such arrangements are still subject to review by the Judiciary and Parliament as part of ensuring consistency with India’s obligations under the Constitution and international law.
Key Considerations for Extradition Treaties by Executive Action
Dual Criminality Principle
One of the primary considerations for entering into an extradition treaty is whether the offence in question is a criminal act in both countries. This principle ensures that extradition is not requested for activities that are legal in India but considered criminal abroad.
Human Rights and Constitutional Protections
The Indian Constitution provides strong protections for individual rights, especially under Article 21 (right to life and personal liberty), and these protections must be balanced when negotiating extradition treaties. The executive must ensure that any extradition request does not violate fundamental rights, such as the risk of death penalty or torture, as per India's international obligations under human rights conventions.
Political Offence Exception
Political offences, which are broadly defined as crimes that are committed with political intent or motivation, are typically excluded from the scope of extradition treaties. The executive must ensure that the request for extradition is not politically motivated.
Public Interest and Diplomatic Relations
The government also considers the broader public interest and diplomatic relations with the requesting country before entering into an extradition treaty. For example, an extradition treaty may be signed in response to mutual concerns about criminal activity like terrorism or organized crime.
Example
India has extradition treaties with countries such as the United States, the United Kingdom, and Australia. For instance, the India-U.S. Extradition Treaty (signed in 1997) allows the United States to request extradition of individuals who have committed offences in either country. The process of negotiating, signing, and implementing this treaty involved executive action through the Ministry of External Affairs, but any legislative changes needed to align the treaty with Indian law would require parliamentary approval.
Conclusion
India can enter into new extradition treaties through executive action, particularly through the Ministry of External Affairs, which holds the authority to negotiate and sign such agreements on behalf of the government. However, these treaties typically require Parliamentary approval if they necessitate changes to Indian law or involve binding domestic obligations. The balance between executive discretion and legislative oversight ensures that extradition treaties align with India's constitutional values and international commitments.
