Principle of Dual Criminality

The principle of dual criminality asks whether the conduct alleged by the requesting State is also criminal under the law of the requested State. Extradition may proceed only when that conduct constitutes an extradition offence in both jurisdictions, subject to the governing treaty and domestic law. The offences need not have identical names or punishments.

How the test is applied

The requested State examines the alleged acts as a whole and asks whether substantially corresponding conduct would be punishable under its own criminal law.

• Differences in the offence's name, legal classification or precise statutory wording do not ordinarily defeat dual criminality.
• The conduct must satisfy any minimum punishment threshold or offence definition prescribed by the applicable extradition treaty.
• The test concerns the criminal nature of the conduct; it is not a final determination of the accused person's guilt.

Position under Indian law

The Extradition Act, 1962 governs India's extradition process. For a treaty State, Section 2(c) links an extradition offence to the applicable treaty; for a non-treaty State, it prescribes a minimum imprisonment threshold of one year.

• Under Sections 5 and 7, the Central Government may refer the request to a magistrate, who inquires whether a prima facie case supports extradition.
• The magistrate reports the result of the inquiry, while the Central Government takes the ultimate executive decision on surrender under the statutory framework.

Effect on an extradition request

Failure of dual criminality normally prevents surrender because the requested State will not extradite a person for conduct that its own law does not criminalise. Satisfaction of the test is only a necessary gateway, not an automatic entitlement to extradition.

• The request must still comply with evidentiary and procedural requirements.
• Extradition may remain barred by treaty or statutory protections concerning political offences, prior trial for the same offence, bad faith or other specified restrictions.