The Supreme Court has held that an accused cannot be extradited on a mere "Red Corner" notice or on a warrant issued by a foreign court.
In a ruling that would bring relief for Indian citizens facing criminal charges in foreign countries, the Supreme Court has held that an accused cannot be extradited on a mere "Red Corner" notice or on a warrant issued by a foreign court, as the same has to conform to the domestic laws.
The apex court said a citizen can be extradited only if there is a specific official request from the concerned nation and the alleged offence is also an offence under any of the Indian laws, otherwise it would be violative of the accused's fundamental rights guaranteed under Article 19 (freedom of expression) and Article 21 (liberty) of the Constitution.
"The Act (Extradition) as also the treaties entered into by and between India and foreign countries are admittedly subject to our municipal law. Enforcement of a treaty is in the hands of the Executive.
"But such enforcement must conform to the domestic law of the country. Whenever, it is well known, a conflict arises between a treaty and the domestic law or a municipal law, the latter shall prevail," a Bench of Justices SB Sinha and Mukundakam Sharma said.
The apex court said the Extradition Act prescribes a prior request from a foreign country.
"In the absence of any such request, no proceeding could be initiated," the apex court said, while allowing the appeal filed by Bhavesh Jayanti Lakhani in a matrimonial dispute.
Lakhani challenged the CBI's decision to extradite him to the US on the basis of a "Red Corner" notice issued by a Magistrate Court, Clayton County, Georgia on a complaint filed by his estranged wife Hetal G Thakker who accused him of abducting their daughter and taking her to India.
Lakhani's case was that there was no official request from the US and the extradition proceedings were initiated on the basis of a warrant issued by the foreign court.
The Bombay High Court had refused to stay the extradition following which he appealed in the Supreme Court.
Upholding his plea, the apex court said, "Indisputably, therefore, when a proceeding under the Act (Extradition) is initiated, the civil liberty of a person would be directly affected. The provisions of the Act, therefore, should be strictly construed. Any request for extradition therefore must undergo the strict scrutiny test.
"It furthermore stands admitted that matrimonial dispute as such does not constitute an extraditable offence and, thus, no effect could be given thereto. However, whether this case concerns an extraditable offence or not has to be determined by the Magistrate under the Act," the Bench said.
The apex court also fixed certain parameters which had to be observed by the authorities while permitting extradition of citizens:
(i) That the offence should be counted as one by Indian Law as well, and
(ii) The person must be liable to be arrested in India -- either under any law relating to extradition, or otherwise.
"Such an arrest can be effected only pursuant to a warrant issued by the Magistrate in view of Sections 6, 16 and 34B of the Act or an arrest warrant issued by a foreign country and endorsed by the Central Government under Section 15 of the Act," the court observed.
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