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Legal Consequences Of Waiving Extradition

Ashutosh Rajput_JudicateMe


This Blog is written by Ashutosh Rajput from Hidayatullah National Law University, RaipurEdited by Saumya Tripathi.



Extradition is a process wherein a person who is convicted of a crime is transferred from one country to another country on the demand of the country who sought such a person. Extradition as per the Collins dictionary it means the surrender of an alleged offender or fugitive to the state in whose territory the alleged offence was committedwhile Marjorie Whiteman defines it as the “process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial or punishment. It applies to those who are merely charged with an offense but have not been brought to trial; to those who have been tried and convicted and have subsequently escaped from custody; and to those who have been convicted in absentia. It does not apply to persons merely suspected of having committed an offense but against whom no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment”.

To initiate the process of extradition, there has to be a prior arrangement regarding such fugitive. Fugitive here means any person who escapes the natural nation to avoid legal sanctions and such offender will be liable for the procedures of the state which happens to extradite the offender and will have a right to challenge the extradition. The country demanding such fugitive is termed as requesting state while the country from whom they demanded such fugitive is termed as requested

A treaty has a fundamental role to initiate the extradition process and is somewhat like a contract where there is a proposal by one country and its acceptance by the other country. Many countries have signed this treaty with every other country but some countries like the United States lack this treaty with certain nations. Even after having such a treaty formed with the other nation the requested country has the discretion to extradite such fugitive as every nation in order to protect their sovereignty may ignore fugitive’s transmission to the requesting state. As soon as the warrant is issued on the name of the fugitive offender then the offender will have a personal decision whether to fight extradition or to waive it. . Sometimes challenging the extradition takes a very long process and is more complicated than waiving it due to which the offender chooses the option to waive the extradition.


The fundamental reason the fugitive waive their extradition is to promote the cooperation as both the parties are agreeable to the same and at the same time such fugitive may get an opportunity to avoid the law enforcement against him which will reduce his burden to pay extra expenses and will also reduce the frustration of challenging the extradition. It also saves the time of the offender and their counsel and resolves the matter thoroughly without running against the law. Also, the reason to waive the right is that the fugitive has a belief that the complainant will be lenient throughout the process. And choosing to waive will also speed up the process as the offender wants to “get it over with”.


Waiving the extradition has a much wider impact with respect to the process before the court as it saves time of further proceeding and will also reduce the legislative spending of the fugitive and works on the maxim ‘aut dedere out judicare’ meaning either extradite or prosecute. As the crime is increasing with the decreasing rate of eviction therefore, it is pertinent to form a consensus with the other country for the prosecution of such a fugitive offender as crossing borders has become easier and the fugitive may escape the other country as well.


The first act which came up with the provisions for extradition was adopted by the Belgium in 1833 subsequently several other act got enacted with respect to the extradition.

The Indian Extradition Act, 1962:

Section 2(d) defines the ‘extradition treaty’ as a treaty agreement or agreement made by Indians with the foreign state in order to extradite the fugitive from the foreign state.

Section 3 talks about the notification which can be issued by the Government of India.

Section 3(4) enshrines that if India does not have an extradition treaty with the foreign country then as per Section 3(4) the foreign country which is the signatory to any of the Indian Convention will presume the said treaty.

Section 34 deals with the extra-territorial jurisdiction wherein it states that an extradition offence committed in a foreign state shall be deemed to have been committed in India.

International Convention for the Suppression of Terrorist Bombings:

Section 2(f) states that only the fugitive offender would be extradited.

United Nations Convention against Transnational Organized Crime:

Section 44(2) enshrines that dual criminality is not a bar and a fugitive offender can be extradited to its original nation even if the other nation does not recognize the fugitive’s act as an offence.

International Convention on the Suppression and Punishment of the Crime of Apartheid (1973):

Article 11(2) establishes a mutual duty to extradite for States Parties

Inter-American Convention on Extradition (1981):

Article 21 permits the extradition without formal proceeding.

Uniform Criminal Extradition Act:

Sec. 54-181 has a provision for waiving extradition whereby it states that

Other Statutory Provisions are as below:

  • Montevideo Convention on Extradition (Inter-American) (1933)
  • Convention on Extradition of the League of Arab States (1952)
  • Convention on Extradition of the Organisation Africaine et Malgache (OCAM) (1961)
  • Economic Community of West African States (ECOWAS) Convention on Extradition (1994)



In Maria Stella Rene v. Inspector of Police, the madras High Court disallowed the release of a French’s passport on the ground that if she returned to the France, then in future she won’t be extradited to India according to the Indi-French treaty wherein such treaty barred the extradition of ‘own nationals’.

In Mohammad Jafeer v. The Government of India and Ors. the Madras High Court disallowed the extradition of the Indian national to the Kuwait and barred the extradition of own nationals.

In Jayanti Lakhani v. State of Maharastra it was held that the local municipal laws of the state hold precedence.

In Blaxland v. Commonwealth Director of Public Prosecutions the fugitive offered to waive his extradition provided that such fugitive will carry some equipment necessary for its defence and the same was denied by the court.


There are certain provisions in the treaties or agreement to determine the conditions they give or deny the extradition as the country will put more emphasis on human rights. And under certain exceptional circumstances, a country can deny the extradition request. For extradition, a fundamental requisite is that both the countries the requesting as well as the requested country has a provision for punishment for more than one year with respect to such fugitive or else the requested country won’t extradite. And the fugitive can waive their rights with respect to the formal process of extradition either at an initial proceeding or final proceeding for that he has to sign a written waiver furthermore, the judge will have a duty to ensure that the waiver is ‘voluntarily and knowingly’.

Such fugitive will have to wait in jail upto a certain period for the officer of the requesting country and if after some reasonable time the officer doesn’t reach out to the fugitive then the fugitive will have a right to plead before the superior court so as to get a review of his custody status. And waiving one’s right as to challenge the extradition can sometimes become fruitful as in common parlance it is assumed that the longer one runs, the harsher punishment will he get and that too without spending for the deportation expenses.

It is worth noting that this waiver will not limit the powers with respect to the rights and duties of the officer of the requesting country who demanded such offender. Such officer will also be provided with the copy of consent of the fugitive that he waived his right to fight the extradition.

The right to privacy is considered as of an utmost important issue and if the court considers that certain family issues are being violated due to the extradition then the court may refuse to extradite such fugitive as per Article 8 of the European Convention on Human Rights. In FK v. Polish Judicial Authority the court held that extraditing a mother of five children who was charged with some minor faults some long years back would violate Article 8 and the court did not extradite her. But in Norris v. United States the court held that to provoke Article 8 then it would require ‘exceptional circumstances’.


It sometimes may happen that a fugitive waive their extradition and will have a right to fight extradition provided that such fugitive is confined in the jail for a longer period. But there are several other ways like deportation where informal deportation takes place for instance if a narcotic is found in Mexico and same the US wants to extradite to their country then without a formal proceeding such deportation come into existence, still, extradition is a soothing process while in deportation one is forced or compelled or made to deport to another country forcefully.

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