What is extradition and how far is extradition a judicial process?

Extradition is the legal process by which a person is transferred from one place to another without the person’s consent. This is a legal method to prevent people from evading justice. When a person commits a crime in a state and then goes to a different one, the person can be sent back to face charges in the state where the crime was committed.

Generally, a country’s power to arrest a fugitive only extends within its borders. If there is no provision for extradition, people can evade justice by moving from one place to another. Extradition treaties are signed between nations with the intention to transfer criminals from a requested country to a requesting country. International extradition is allowed by nations only after imposing conditions to the process. When an extradition treaty is signed, the parties to the treaty provide the offenses for which an individual can be extradited. International extradition matters are negotiated by the executive branch of federal government.

Role of judiciary

However, even if the executive branch is in favor of the foreign nation’s request, extradition requests can be turned down by the judicial branch. The judiciary can dismiss an extradition request if the charges the foreign government leveled against the captive are not crimes in the country where the criminal has escaped to. The judicial branch can also dismiss an extradition request if the captive has a reasonable fear of facing cruel and unusual punishment if s/he was extradited, or if the captive had a reasonable fear that s/he would not face a fair trial.

A nation cannot surrender a fugitive to another nation or demand return of an offender from the nation if it is against the constitution of the nation.

In India the provisions of Indian Extradition Act, 1962, govern the extradition of a fugitive from India to a foreign country or vice-versa. The basis of extradition could be a treaty between India and a foreign country.

Underworld don and prime accused in the Mumbai blasts Abu Salem was extradited from Portugal along with wife Monica Bedi.When India requested Portugal government for the extradition of Abu Salem, Portuguese court ordered their extradition after the Indian government, through its lawyer, gave an assurance that if convicted they would not be sentenced to death.

The assurance was given since European law prohibits extradition of any accused to such a country where capital punishment is in vogue.As per the Portuguese Constitution, no one can be extradited in respect of offences punishable by death penalty under the law of the state requesting extradition.

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