'Notified Order' Issued Under Extradition Act Can Be Given Retrospective Effect: Delhi HC [Read Judgment]

-In an important judgment, the Delhi High Court has held that the Extradition Act is not a penal statue and that issuance of a Notified Order making applicable the provisions of the Act to the foreign country can be given retrospective effect.

The bench comprising Justice Vipin Sanghi and Justice IS Mehta also held that laying of the Notified Order before the Parliament is not a pre-requisite to the enforcement of the Notified Order.

The main contention raised on behalf of the petitioner (Lennox James Ellis) was that the Notified Order issued under Section 3(1) of the Extradition Act could not be given retrospective effect. In this case, request for extradition of the petitioner was received from the Republic of Philippines on 4th August 2016 in the Ministry of External Affairs. It was only on 23rd August, 2016 , that the Notified order was issued by the Central Government under Section 3(1) of the Act making applicable the provisions of the Act to the Republic of Philippines, retrospectively, from the date when the treaty was entered into force between the two countries (12th March 2004)

Extradition Act Not A Penal Statute, Can Be Given Retrospective Effect

"The laying of the Notified Order before the Parliament is not a pre- requisite to the enforcement of the Notified Order. It is a requirement subsequent to the issuance of such a Notified Order."The bench rejected the contention that the Act is a penal statute and, as such, cannot be given retrospective effect. It said that the Act is a procedural statute, and not a penal statute and thus the central government is not per se barred from giving retrospective effect to the Notified Order on that count.

It observed: "A perusal of the entire scheme of the Act shows that the Act primarily provides for the procedure to be followed while dealing with an extradition request received from a Foreign State in respect of a fugitive criminal. The Act, inter-alia, contains the procedure for making the provisions of the Act applicable to a Foreign State; the procedure to initiate a magisterial inquiry; the procedure applicable for conduct of the magisterial inquiry etc. - none of which provide for creation of an offence; or for conviction for such an offence, or; for sentencing/ punishment. Even Section 26 – which we have quoted hereinabove, is only classificatory and does not create an offence by itself."

Issuance of Notified Order A Conditional Legislation

The bench also observed that a Notified Order issued under Section 3(1) of the Act is also an instance of conditional legislation and not delegated legislation which can be given retrospective effect. "Under Section 3(1) of the Act, the Central Government is empowered to notify the applicability of the Extradition Act to a Foreign State. Thus, it is left to the wisdom of the Central Government to determine whether or not and, if so, when to issue a Notified Order in respect of any Foreign State subject to, inter alia, conditions," the court said.

Laying of the Notified Order before the Parliament is not a pre-requisite to the enforcement of the order

The bench also rejected the challenge based on the ground that it has not been laid before either house of the Parliament in terms of Section 35 of the Act. It said: "The requirement of laying the Notified Order before the two houses of Parliament is an act of simple laying. Firstly, the laying of the Notified Order before the Parliament is not a pre- requisite to the enforcement of the Notified Order. It is a requirement subsequent to the issuance of such a Notified Order; Secondly, the provision does not empower the Parliament to make any modifications or amendments to the Notified Order which the Parliament may feel appropriate; Thirdly, it does not empower the Parliament to approve, or disapprove the Notified Order issued under the Act and, most importantly, it does not provide for any consequence for failure to comply with the requirement to lay the Notified Order before both houses of Parliament. Lastly, the provision does not provide for a specific time frame within which the Notified Order is to be laid before each house of Parliament."

Difference of Opinion

The bench opined that observation by another division bench in Marie Emmanuelle Verhoeven v. Union of India that the letter of request issued by the Republic of Chile (the country which sought extradition) itself was invalid on the ground that there was no Notified Order in existence on the date when the letter of request/ aide-memoire was received by the Central Government, and the subsequent issuance of the Notified Order would not make any difference to it, may not be legally correct and may need reconsideration in an appropriate case. The bench gave the following reasons for its disagreement.

A foreign State – whether a Treaty State or a non-Treaty State, is not precluded from making a request for extradition in the exercise of its own sovereign power to the Republic of India. Making of such a request for extradition by any foreign State is not subject to, and conditional upon, the issuance of a Notified Order under Section 3 of the Act in relation to that foreign State.

• Section 3(1) when read in conjunction with Section 3(3) of the Act clearly shows that Section 3(1) is wider in its application and scope in as, much, as the Central Government may issue a Notified Order in respect of any foreign State which may, or may not, be a Treaty State. However, when the Notified Order relates to a Treaty State, the requirements of Section 3(3) should be fulfilled. Section 3(1) of the Act empowers the Central Government to issue a Notified Order so as to apply the provisions of the Act to such foreign State as may be specified in the Notified Order. The Act becomes applicable to a foreign State – in the sense that the request for extradition would be dealt with in accordance with the provisions of the Act, once a Notified Order is issued under Section 3(1) thereof in respect of that foreign State. A perusal of Section 3 of the Act shows that while Section 3(1) and 3(2) relate to all Foreign States, Section 3(3) relates to treaty States only.
• The Supreme Court in Marie Emmanuelle (supra) has held that even if there is no binding extradition Treaty between India and a foreign State, the requisition for extradition made by the said foreign State would be maintainable under the general principles of reciprocity and the general principles of international law for extradition. The Supreme Court held that "the general principles of international law do not debar the requisition".
• Section 4 of the Act lays down the manner in which the request for surrender of a fugitive criminal of a foreign State may be made to the Central Government. The same does not state that the requisition for surrender can be made only by that Foreign State, in respect whereof a Notified Order under Section 3(1) has been issued.
• It is not even contemplated by the Act that as soon as a request for extradition is received by the Central Government from a foreign State, the fugitive criminal should be extradited forthwith. Thus, even after a request for extradition is received, and while the same is pending consideration, it is open to the Central Government to issue a Notified Order under Section 3 of the Act in respect of the request of a foreign State.

However, the bench refused to refer the matter to larger bench opining that the said decision does not come in way of determination of the present case.

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