Extradition And Mutual Legal Assistance
I. EXTRADITION
Meaning
Extradition is the process by which one sovereign state formally requests and obtains the surrender of an accused or convicted person from another sovereign state so that the person can face trial or serve a sentence.
Key Features
Based on treaties or reciprocity
Involves two sovereign states
The requested person must be:
Accused of a crime, or
Convicted of a crime
Offence must usually satisfy dual criminality.
Certain offences are often exempted (e.g., political offences).
MAJOR CASE LAWS ON EXTRADITION
1. State of Madras v. C.G. Menon (1954, Supreme Court of India)
Facts
Menon, charged with offences under the Penal Code, was sought to be extradited from Travancore to Madras State.
Issue
Whether the extradition procedure was valid when Travancore was a Part B state after Independence.
Held
The Supreme Court upheld that extradition procedures existing before the Constitution could continue unless inconsistent with the Constitution.
Importance
Clarified continuity of pre-independence extradition arrangements and validated statutory procedures unless explicitly repealed.
2. Mobarak Ali Ahmed v. State of Bombay (1957, Supreme Court of India)
Facts
A foreign national was convicted of forgery and argued that he could not be tried in India because the act was committed abroad.
Issue
Whether the court had jurisdiction over a foreigner for an offence with transnational elements.
Held
The Court held that if the offence had consequences in India, jurisdiction exists.
Importance
Demonstrated that extradition is not required if domestic courts already have legal jurisdiction for transnational crimes.
3. Abu Salem Abdul Qayyum Ansari Extradition Case (2002–2012)
Facts
Abu Salem, accused in the 1993 Mumbai blasts, was extradited from Portugal to India.
Portugal imposed conditions (death penalty cannot be imposed, prosecution must be limited to specific offences).
Issue
Were Indian authorities bound by the terms set by Portugal?
Held
Yes. India must honour the “rule of specialty”—a person can only be tried for offences listed in the extradition order.
Death penalty could not be imposed.
Importance
Landmark ruling on compliance with extradition treaty conditions.
Reinforced the principle that extradited persons cannot be tried for unrelated offences.
4. Kartar Singh v. State of Punjab (1994) – related principle
While primarily an anti-terror case, the Court clarified limits on state action in international cooperation and emphasized due process, influencing later extradition jurisprudence.
Importance
Highlights judicial concern that extradition must respect fundamental rights, including:
protection against torture,
fair trial,
humane treatment.
5. Vijay Mallya Extradition Proceedings (UK–India, 2017–2022)
Facts
Mallya was accused of financial fraud and money laundering in India.
India sought extradition from the UK.
Key Issues
Whether Indian jails provided adequate human rights conditions.
Whether there was a prima facie case.
Outcome
UK courts approved extradition after examining:
jail conditions,
evidence of financial offences,
assurances by Indian government.
Importance
Demonstrated the importance of human rights considerations and assurances in extradition.
Set precedent for how Indian prison conditions are scrutinized by foreign courts.
II. MUTUAL LEGAL ASSISTANCE (MLA)
Meaning
MLA is a process where one country formally assists another in investigation, evidence collection, asset freezing, search and seizure, or prosecution.
Key Features
Non-coercive cooperation (unlike extradition which physically hands over a person).
Governed by:
bilateral MLA treaties,
multilateral conventions (e.g., UN conventions),
or letters rogatory.
Often used in:
financial crimes,
terrorism,
cybercrime,
cross-border fraud.
MAJOR CASE LAWS ON MLA
6. CBI v. Abu Salem (MLA sub-issue, 2011–2020)
Although primarily an extradition case, India and Portugal frequently exchanged evidence relating to charges, demonstrating interlinked extradition and MLA cooperation.
Importance:
Shows how MLA is used to provide:
witness statements,
certified documents,
forensic reports,
bank records.
7. Ram Jethmalani v. Union of India (2010, Supreme Court) – Black Money Case
Facts
Petition sought disclosure of names of Indians holding illicit foreign accounts.
Required MLA from foreign banks and governments.
Issue
Whether the government was obliged to share confidential information obtained through MLA treaties.
Held
Court held confidentiality terms must be respected.
Information shared under an MLA treaty must follow the treaty conditions.
Importance
Clarified that MLA treaties have binding confidentiality clauses.
Cooperation cannot be jeopardized by unilateral public disclosure.
8. Haji Mastan v. Union of India (1970) – Letters Rogatory Principle
Facts
In a smuggling investigation, Indian authorities needed evidence from foreign jurisdictions.
Held
Supreme Court recognized the use of Letters Rogatory (formal judicial requests) as part of India’s MLA mechanism.
Importance
Validated foreign evidence collection through judicial channels.
Established early recognition of MLA in Indian jurisprudence.
9. Enrica Lexie / Italian Marines Case (2012–2021)
While not a classic MLA case, it involved:
Maritime jurisdiction,
International cooperation for evidence sharing,
Transfer of evidence and ballistic reports between India and Italy.
Importance
Illustrates how MLA facilitates cross-border criminal investigation even in politically sensitive cases.
III. DIFFERENCE BETWEEN EXTRADITION & MLA
| Feature | Extradition | MLA |
|---|---|---|
| Purpose | Surrender of a person | Sharing evidence, investigation help |
| Nature | Coercive | Non-coercive |
| Treaty Needed | Usually yes | Treaties OR letters rogatory |
| Applies to | Accused/convicted persons | Evidence, documents, witnesses |
| Main Principle | Rule of specialty, dual criminality | Confidentiality, reciprocity |
IV. CONCLUSION
Both extradition and MLA are essential tools for combating transnational crime. Courts have repeatedly emphasized:
Due process,
Human rights protection,
Treaty obligations,
Reciprocity between nations.
The case laws collectively illustrate how these principles operate in practice.
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