India-US Extradition Treaty: 11 Indians extradited between 2002 and 2018; Headley, Anderson among rejected requests

Of the 11 fugitives that the US extradited to India between 2002 and 2018, two were facing charges of terrorism, one of sexual abuse of children, one of attempt to murder, while the rest were booked for financial fraud and cheating.

In the past, the US has also rejected many requests from India. The key among them was the extradition of Rana’s associate and 26/11 attacks accused David Coleman Headley. The Lashkar-e-Taiba operative who conducted reconnaissance for the attacks in Mumbai had been arrested by US authorities in October 2009. He was tried and sentenced by a US court for the killing of six Americans in the Mumbai attacks after he pleaded guilty to the charges.

India’s request to extradite Headley to India was rejected on the ground that it would lead to double jeopardy (being punished for the same crime twice).

The US had, similarly, rejected India’s request to extradite 1984 Bhopal Gas tragedy accused Warren Anderson, the then CEO of Union Carbide. Anderson had visited Bhopal after the tragedy and was arrested by police. However, he was soon granted bail and allowed to leave the country. Almost 20 years later, in May 2003, India sent an extradition request against Anderson to the US, which declined it on the ground that India did not have enough evidence.

Earlier, the US had rejected India’s request for the extradition of one Sinni Singh who was wanted for kidnapping. India made a formal request for extradition in September 2000, the US rejected the same in January 2002.

Under the India-US extradition treaty, the offence is extraditable if it is punishable by imprisonment for more than one year under the laws of both the countries. This applies whether or not the laws in the two countries place the offence within the same category of offences or describe the offence by the same terminology.

The treaty, however, bars extradition for a political offence. It gives a list of offences that would not be construed as political offences. These include murder or other willful crime against a Head of State or Head of Government or a member of their family; aircraft hijacking offences; aviation sabotage; crimes against internationally protected persons including diplomats; hostage taking; offences related to illegal drugs; or any other offences for which both countries have the obligation to extradite the person pursuant to a multilateral international agreement.

Article 6 of the treaty bars extradition when the person sought has been convicted or acquitted in the Requested State for the same offence, but it does not bar extradition if the competent authorities in the Requested State have declined to prosecute or have decided to discontinue criminal proceedings against the person sought.

Beyond agreements and treaties, extradition often depends upon the diplomatic heft of a country. How quickly the Requested State moves on an extradition request and what case it presents to the court during the extradition process can often be guided by the health of the bilateral relations between the countries. In the case of India and the US, there has been better cooperation between the two countries in the past decade and half.

While cooperation on terrorism and financial crimes began picking up following the 9/11 attacks, the US was seen to be more sensitive to India’s concerns on the front of national security following the 26/11 attacks.