The Government of the United States of America and the Government of the Republic of India;
Recalling the Treaty for the Mutual Extradition of Criminals between the United States of America and Great Britain, [15] signed at London December 22, 1931;
Noting that both the Government of the United States of America and the Government of the Republic of India currently apply the terms of that Treaty; and
Desiring to provide for more effective cooperation between the two States in the suppression of crime, recognizing that concrete steps are necessary to combat terrorism, including narcoterrorism, and drug trafficking, and, for that purpose, to conclude a new treaty for the extradition of fugitive offenders;
Have agreed as follows:
Article 1
Obligation to Extradite
The Contracting States agree to extradite to each other, pursuant to the provisions of this Treaty, persons who, by the authorities in the Requesting State are formally accused of, charged with or convicted of an extraditable offense, whether such offense was committed before or after the entry into force of the Treaty.
Article 2
Extraditable Offenses
1. An offense shall be an extraditable offense if it is punishable under the laws in both Contracting States by deprivation of liberty, including imprisonment, for a period of more than one year or by a more severe penalty.
2. An offense shall also be an extraditable offense if it consists [16] of an attempt or a conspiracy to commit, aiding or abetting, counselling or procuring the commission of or being an accessory before or after the fact to, any offense described in paragraph 1.
3. For the purposes of this Article, an offense shall be an extraditable offense:
(a) whether or not the laws in the Contracting States place the offense within the same category of offenses or describe the offense by the same terminology;
(b) whether or not the offense is one for which United States federal law requires the showing of such matters as interstate transportation, or use of the mails or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court; or
(c) whether or not it relates to taxation or revenue or is one of a purely fiscal character.
4. Extradition shall be granted for an extraditable offense regardless of where the act or acts constituting the offense were committed.
5. If extradition has been granted for an extraditable offense, it shall also be granted for any other offense specified in the request, even if the latter offense is punishable by less than one year’s [17] deprivation of liberty, provided that all other requirements for extradition are met.
Article 3
Nationality
Extradition shall not be refused on the ground that the person sought is a national of the Requested State.
Article 4
Political Offenses
1. Extradition shall not be granted if the offense for which extradition is requested is a political offense.
2. For the purposes of this Treaty, the following offenses shall not be considered to be political offenses:
(a) a murder or other willful crime against the person of a Head of State or Head of Government of one of the Contracting States, or of a member of the Head of State’s or Head of Government’s family;
(b) aircraft hijacking offenses, as described in The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, done at the Hague on December 16, 1970;
(c) acts of aviation sabotage, as described in the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, done at Montreal on September 23, 1971;
(d) crimes against internationally protected persons, including diplomats, as described in the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, [18] including Diplomatic Agents, done at New York on December 14, 1973;
(e) hostage taking, as described in the International Convention against the Taking of Hostages, done at New York on December 17, 1979;
(f) offenses related to illegal drugs, as described in the Single Convention on Narcotic Drugs, 1961, done at New York on March 30, 1961, the Protocol Amending the Single Convention on Narcotic Drugs, 1961, done at Geneva on March 25, 1972, and the United Nations Convention against Illicit Traffic in Narcotics Drugs and Psychotropic Substances, done at Vienna on December 20, 1988;
(g) any other offense for which both Contracting States have the obligation pursuant to a multilateral international agreement to extradite the person sought or to submit the case to their competent authorities for decision as to prosecution; and
(h) a conspiracy or attempt to commit any of the foregoing offenses, or aiding or abetting a person who commits or attempts to commit such offenses.
Article 5
Military Offenses and Other Bases for Denial of Extradition
1. The executive authority of the Requested State may refuse extradition for offenses under military law which are not offenses under ordinary [19] criminal law.
2. Extradition shall not be granted if the executive authority of the Requested State determines that the request was politically motivated.
Article 6
Prior Prosecution
1. Extradition shall not be granted when the person sought has been convicted or acquitted in the Requested State for the offense for which extradition is requested.
2. Extradition shall not be precluded by the fact that the authorities in the Requested State have decided not to prosecute the person sought for the acts for which extradition is requested, or to discontinue any criminal proceedings which have been instituted against the person sought for those acts.
Article 7
Lapse of Time
Extradition shall not be granted when the prosecution has become barred by lapse of time according to the laws of the Requesting State.
Article 8
Capital Punishment
1. When the offense for which extradition is sought is punishable by death under the laws in the Requesting State and is not punishable by death under the laws in the Requested State, the Requested State may refuse extradition unless:
(a) the offense constitutes murder under the laws in the Requested State; or
(b) the Requesting State provides assurances [20] that the death penalty, if imposed, will not be carried out.
2. In instances in which a Requesting State provides an assurance in accordance with paragraph (1)(b) of this Article, the death penalty, if imposed by the courts of the Requesting State, shall not be carried out.
Article 9
Extradition Procedures and Required Documents
1. All requests for extradition shall be submitted through the diplomatic channel.
2. All requests for extradition shall be supported by:
(a) documents, statements, or other types of information which describe the identity and probable location of the person sought;
(b) information describing the facts of the offense and the procedural history of the case;
(c) a statement of the provisions of the law describing the essential elements of the offense for which extradition is requested;
(d) a statement of the provisions of the law describing the punishment for the offense; and
(e) the documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of this Article, as applicable.
3. A request for extradition of a person who is sought for prosecution shall also be supported by:
(a) a copy of the warrant or order of arrest, issued [21] by a judge or other competent authority;
(b) a copy of the charging document, if any; and
(c) such information as would justify the committal for trial of the person if the offense had been committed in the Requested State.
4. A request for extradition relating to a person who has been convicted of the offense for which extradition is sought shall also be supported by:
(a) a copy of the judgment of conviction or, if such copy is not available, a statement by a judicial authority that the person has been convicted;
(b) information establishing that the person sought is the person to whom the conviction refers;
(c) a copy of the sentence imposed, if the person sought has been sentenced, and a statement establishing to what extent the sentence has been carried out; and
(d) in the case of a person who has been convicted in absentia, the documents required in paragraph 3.
Article 10
Admissibility of Documents
The documents which accompany an extradition request shall be received and admitted as evidence in extradition proceedings if:
(a) in the case of a request from the United States, they are certified by the principal diplomatic or principal consular officer of the Republic [22] of India resident in the United States;
(b) in the case of a request from the Republic of India, they are certified by the principal diplomatic or principal consular officer of the United States resident in the Republic of India, as provided by the extradition laws of the United States; or
(c) they are certified or authenticated in any other manner accepted by the laws in the Requested State.
Article 11
Translation
All documents submitted by the Requesting State shall be in English.
Article 12
Provisional Arrest
1. In case of urgency, a Contracting State may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel. The facilities of the International Criminal Police Organization (Interpol) may be used to transmit such a request.
2. The application for provisional arrest shall contain:
(a) a description of the person sought;
(b) the location of the person sought, if known;
(c) a brief statement of the facts of the case, including, if possible, the time and location of the offense;
(d) a description of the laws violated;
(e) a statement of the existence [23] of a warrant of arrest or a finding of guilt or judgment of conviction against the person sought; and
(f) a statement that a request for extradition for the person sought will follow.
3. The Requesting State shall be notified without delay of the disposition of its application and the reasons for any denial.
4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of provisional arrest pursuant to this Treaty if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 9.
5. The fact that the person sought has been discharged from custody pursuant to paragraph (4) of this Article shall not prejudice the subsequent rearrest and extradition of that person if the extradition request and supporting documents are delivered at a later date.
Article 13
Decision and Surrender
1. The Requested State shall promptly notify the Requesting State through the diplomatic channel of its decision on the request for extradition.
2. If the request is denied in whole or in part, the Requested State shall provide the reasons for the denial. The [24] Requested State shall provide copies of pertinent judicial decisions upon request.
3. If the request for extradition is granted, the authorities of the Contracting States shall agree on the time and place for the surrender of the person sought.
4. If the person sought is not removed from the territory of the Requested State within the time prescribed by the laws in that State, that person may be discharged from custody, and the Requested State may subsequently refuse extradition for the same offense.
Article 14
Temporary and Deferred Surrender
1. If the extradition request is granted in the case of a person who is being prosecuted or is serving a sentence in the Requested State, the Requested State, subject to its laws, may temporarily surrender the person sought to the Requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody in the Requesting State and shall be returned to the Requested State after the conclusion of the proceedings against that person, in accordance with conditions to be determined by agreement of the Contracting States.
2. The Requested State may postpone the extradition proceedings against a person who is being prosecuted [25] or who is serving a sentence in that State. The postponement may continue until the prosecution of the person sought has been concluded or until such person has served any sentence imposed.
Article 15
Requests for Extradition Made by More than One State
If the Requested State receives requests from the other Contracting State and from any other State or States for the extradition of the same person, either for the same offense or for different offenses, the executive authority of the Requested State shall determine to which State it will surrender the person. In making its decision, the Requested State shall consider all relevant factors, including but not limited to:
(a) whether the requests were made pursuant to treaty;
(b) the place where each offense was committed;
(c) the respective interests of the Requesting States;
(d) the gravity of the offenses;
(e) the nationality of the victim;
(f) the possibility of further extradition between the Requesting States; and
(g) the chronological order in which the requests were received from the Requesting States.
Article 16
Seizure and Surrender of Property
1. To the extent permitted under its laws, the Requested State may seize and [26] surrender to the Requesting State all articles, documents, and evidence connected with the offense in respect of which extradition is granted. The items mentioned in this Article may be surrendered even when the extradition cannot be effected due to the death, disappearance, or escape of the person sought.
2. The Requested State may condition the surrender of the property upon satisfactory assurances from the Requesting State that the property will be returned to the Requested State as soon as practicable. The Requested State may also defer the surrender of such property if it is needed as evidence in the Requested State.
3. The rights of third parties in such property shall be duly respected.
Article 17
Rule of Speciality
1. A person extradited under this Treaty may not be detained, tried, or punished in the Requesting State except for:
(a) the offense for which extradition has been granted or a differently denominated offense based on the same facts on which extradition was granted, provided such offense is extraditable or is a lesser included offense;
(b) an offense committed after the extradition of the person; or
(c) an offense for which the executive authority of the Requested [27] State consents to the person’s detention, trial, or punishment. For the purpose of this subparagraph:
(i) the Requested State may require the submission of the documents called for in Article 9; and
(ii) the person extradited may be detained by the Requesting State for 90 days, or for such longer period of time as the Requested State may authorize, while the request is being processed.
2. A person extradited under this Treaty may not be extradited to a third State for an offense committed prior to his surrender unless the surrendering State consents.
3. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or punishment of an extradited person, or the extradition of that person to a third State, if:
(a) that person leaves the territory of the Requesting State after extradition and voluntarily returns to it; or
(b) that person does not leave the territory of the Requesting State within 15 days of the day on which that person is free to leave.
Article 18
Waiver of Extradition
If the person sought consents to surrender to the Requesting State, the Requested State may, subject to its laws, surrender the person as expeditiously as possible without further [28] proceedings.
Article 19
Transit
1. Either Contracting State may authorize transportation through its territory of a person surrendered to the other State by a third State. A request for transit shall be made through the diplomatic channel. The facilities of Interpol may be used to transmit such a request. It shall contain a description of the person being transported and a brief statement of the facts of the case. A person in transit may be detained in custody during the period of transit.
2. No authorization is required where air transportation is used and no landing is scheduled on the territory of the Contracting State. If an unscheduled landing occurs on the territory of the other Contracting State, the other Contracting State may require the request for transit as provided in paragraph 1. That Contracting State shall detain the person to be transported until the request for transit is received and the transit is effected, so long as the request is received within 96 hours of the unscheduled landing.
Article 20
Representation and Expenses
1. The Requested State shall advise, assist, appear in court on behalf of the Requesting State, and represent the interests of the Requesting [29] State, in any proceeding arising out of a request for extradition.
2. The Requesting State shall bear the expenses related to the translation of documents and the transportation of the person surrendered. The Requested State shall pay all other expenses incurred in that State by reason of the extradition proceedings.
3. Neither State shall make any pecuniary claim against the other State arising out of the arrest, detention, examination, or surrender of persons sought under this Treaty.
Article 21
Consultation
The competent authorities of the United States and the Republic of India may consult with each other directly or through the facilities of Interpol in connection with the processing of individual cases and in furtherance of maintaining and improving procedures for the implementation of this Treaty.
Article 22
Mutual Legal Assistance in Extradition
Each Contracting State shall, to the extent permitted by its law, afford the other the widest measure of mutual assistance in criminal matters in connection with an offense for which extradition has been requested.
Article 23
Ratification and Entry into Force
1. This Treaty shall be subject to ratification; the instruments of ratification [30] shall be exchanged as soon as possible.
2. This Treaty shall enter into force upon the exchange of the instruments of ratification.
3. Upon the entry into force of this Treaty, the Treaty for the Mutual Extradition of Criminals between the United States of America and Great Britain, signed at London December 22, 1931, shall cease to have any effect between the Government of the United States of America and the Government of the Republic of India. Nevertheless, the prior Treaty shall apply to any extradition proceedings in which the extradition documents have already been submitted to the courts of the Requested State at the time this Treaty enters into force, except that Article 17 of this Treaty shall be applicable to such proceedings.
Article 24
Termination
Either Contracting State may terminate this Treaty at any time by giving written notice to the other Contracting State, and the termination shall be effective six months after the date of such notice.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments have signed this Treaty.
DONE at Washington, in duplicate, this Twenty-fifth day of June, 1997, in the English and Hindi languages, both [31] texts being equally authentic.
FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:
FOR THE GOVERNMENT OF THE REPUBLIC OF INDIA:
DEPARTMENT OF STATE
WASHINGTON
June 25, 1997
Dear Mr. Minister:
I refer to the extradition treaty between the Government of the United States of America and the Government of the Republic of India signed today. It is the understanding of the Government of the United States of America that, as a general matter, upon extradition, a person shall be proceeded against or punished under the ordinary criminal laws of the Requesting State, and shall be subject to prosecution or punishment in accordance with the Requesting State’s ordinary rules of criminal procedure. If either party is considering prosecution or punishment upon extradition under other laws or other rules of criminal procedure, the Requesting State shall request consultations and shall make such a request only upon the agreement of the Requested State.
I would appreciate receiving confirmation that your Government shares this understanding.
Sincerely,
Strobe Talbott
Acting Secretary
His Excellency
Saleem Iqbal Shervani,
Minister of State for External Affairs of India.
SALEEM I. SHERVANI
[OREIGN [32] LANGUAGE TEXT OMITTED]
MINISTER OF STATE FOR EXTERNAL AFFAIRS INDIA
June 25, 1997
Dear Mr. Talbott,
I am writing with respect to your letter of June 25, 1997, which reads as follows:
“June 25, 1997
“Saleem Iqbal Shervani
Minister of State for External Affairs
Government of India:
“Dear Mr. Minister:
“I refer to the extradition treaty between the Government of the United States of America and the Government of the Republic of India signed today. It is the understanding of the Government of the United States of America that, as a general matter, upon extradition, a person shall be proceeded against or punished under the ordinary criminal laws of the Requesting State, and shall be subject to prosecution or punishment in accordance with the Requesting State’s ordinary rules of criminal procedure. If either party is considering prosecution or punishment upon extradition under other laws or other rules of criminal procedure, the Requesting State shall request consultations and shall make such a request only upon the agreement of the Requested State.
“I would appreciate receiving confirmation that your Government shares this understanding.
“Sincerely,
“Strobe Talbott
“Acting [33] Secretary”
I am pleased to confirm that the Government of the Republic of India shares the understanding expressed in your letter.
Yours sincerely,
(Saleem I. Shervani)
The Honorable Strobe Talbott,
Acting Secretary of State.