University of Kashmir
School of Law
Extradition and Asylum
Subject: International law
Submitted to: Dr. Anna Bashir
Submitted by:
Name: Sakib Altaf
Enrollment no.19043122038
Course: LLB (1st semester).
Shift: Morning
WHAT IS EXTRADITION?
If a person is accused of crime or has been convicted and he flees to another
country, the government of the country where he is wanted may ask the other
country to send him back to face the law. If the other country, where he has fled,
hands him over to authorities in the country where he is wanted, it is called
extradition.
Extradition is the conventional process in which a person is handed over or surrendered
by one state to another on the basis of a treaty or some bilateral arrangement between
the two sovereign states.
According to the norms of the International Law, there is not any binding
obligation on a state to surrender the accused demanded by another state because the
law upholds the principle of sovereignty which is about the right and full authority of the
state over itself without any intervention from foreign bodies. The purpose of extradition
is to make sure that criminals are surrendered by one country to another which leads to
mutual cooperation between states in controlling, prevention, and suppression of
international and domestic criminality.
LEGAL STATUS OF EXTRADITION: INDIAN & INTERNATIONAL LAW:
In India, the extradition of an escapee or fugitive to another country or vice versa is
dealt with under the Extradition Act, 1962. The Government of India has so far entered
into Bilateral Extradition treaties with 42 countries. The term Extradition Treaty is
defined as per Section 2(d) of the Extradition Act which explains it as, “a treaty,
agreement or arrangement with a foreign state in the relation of extradition of fugitive
criminals”. Apart from the treaties, India has entered into extradition arrangement with
another nine countries. Extradition request can be made by India to any country. The
countries with which India has a treaty are under an obligation to consider the request
due for extradition of a fugitive. But a country with which there is no such treaty, may or
may not accept the request and may subject such request to domestic procedure and
law.
The Extradition Act defines the ambit of what Extradition offences are and who
can be extradited in Section 2(c) and Section 2(f) respectively.It says that in respect of a
foreign state, being a treaty state, “extradition offence” means an offence provided for in
the extradition treaty with that State; while in relation to a foreign State other than a
treaty State , it means an offence punishable with imprisonment for a term which shall
not be less than one year under the laws of India or of a foreign State and includes a
composite offence.
As stated above, the International Law conventions do not put any binding obligation on
a state to surrender a fugitive to another sovereign state. There is no duty as such
imposed by the International law on the states to extradite. However, there are certain
basic principles governing the extradition process which are accepted and followed by
several member states of the UN.
THE PRINCIPLE OF DUAL CRIMINALITY:
Also known as the Principle of Dual Criminality, it is one of the most significant
principles governing the law of extradition. It states that extradition process can only
happen when the criminal act under scrutiny is an offence in the jurisdiction of both the
sovereign states.
RULE OF SEPECIALITY:
The idea behind this rule is to prevent blanket extradition demand made by the
requesting state. The rule says that the fugitive who is extradited for a certain crime
should be tried for that crime alone and not for any other. This was reiterated in the
judgment given by the Supreme Court in the case of Daya Singh Lahoria vs. Union of
India (2001).The Apex Court said that a fugitive criminal brought to India under
extradition treaty can only be tried for the offence provided in the extradition decree and
not for any other offence.
THE PRINCIPLE OF PROPORTIONATE PUNISHMENT:
Extradition may be refused in cases where there is a possibility for the extradited
individual to receive a punishment which is out of proportion or severe in form when
compared to the degree of offence. This principle is specifically invoked in order to
avoid violation of Human rights norm accepted globally. Where there is a possibility of
the death of the fugitive in the state that asks for his extradition, such request is denied
as per this principle to protect and avoid violation of Human rights norms internationally.
OPPORTUNITY FOR FAIR TRIAL:
Before the Extradition process is initiated by the state which has received the request, it
is ensured that the fugitive will be given a chance to represent himself under a
procedure of fair trial in the state that has requested for his extradition. This principle is
considered in conjunction with the principle of non-inquiry, where the requesting state is
under no obligation to subject its judicial procedures to detailed evaluation criteria of the
state to which the request for extradition has been made. But this principle {of non-
inquiry} is not absolute and rigid in nature and, therefore, the state to which the
extradition request has been made, can question the judicial procedure in the
requesting state if the same is, on the face of it , against the principles of law and
justice.
Indian Extradition Act lays down that if a fugitive in India is wanted in another
country for political reasons and for an act that is non-extradition offence, his extradition
will be refused. The Act provides that the Indian government may, if it deems
necessary, order a magistrate to inquire into the case against a fugitive. It says,
“Without prejudice to the generality of the foregoing provisions, the magistrate shall, in
particular, take such evidence as may be produced in support of the requisition of the
foreign State and on behalf of the fugitive criminal, including any evidence to show that
the offence of which the fugitive is accused or for which he has been convicted is an
offence of political character or is not an extradition offence and If the Magistrate is of
opinion that a prima facie case is not made out in support of the requisition of the
foreign State , he shall discharge the fugitive criminal.”
India has had few successes in seeking extradition of fugitives accused of
serious crimes in the country. Recently, the United Kingdom turned down India’s
request for extradition of Mohammad Hanif alias Tiger Hanif, an alleged aid of
Dawood Ibrahim and accused of involvement in two bomb blasts in Surat, in 1993. He
was arrested by Scotland Yard on an extradition warrant in 2010. Under the India-UK
Extradition Treaty, India is type two category which means the home secretary {same
as home minister in India} has the final sign-off on any extradition request and in the
case of Tiger Menon, the request was turned down.
India and the UK entered into an extradition treaty in 1992. However, between
1992 and 2016, India has successfully extradited only one individual from the UK; Mr.
Samirbhai Vinubhai Patel who was extradited on 18 October 2016 in relation to the
offence of murder.In contrast, India has made at least 23 extradition requests to the UK
during this period.
However, recently, India has had some success in terms of the extradition
proceedings against Mr. Sanjeev Chawla, accused of being involved in a match-fixing
scandal and Mr. Vijay Mallya accused of being involved in a banking fraud. In light of
the outcome of these two cases, India is certainly turning the tides and the warning bells
may be ringing for those economic offenders who considered the UK a safe haven.
ASYLUM
The word asylum is derived from the Greek word “Asylia” meaning inviolable place.
Asylum in common parlance means giving protection and immunity by a state to an
individual from their native country.
Asylum is interpreted as a place of protection or refuge for a fugitive where he/she is
given protection from trial and pursuit from their home country. In other words, asylum is
protection provided to a citizen of a state by another state against his own government.
While extradition of an offender ensures that he/she is brought to justice, the main
purpose of asylum is to give shelter to those who have well-founded fear of persecution
in their home countries. The Universal Declaration of Human Rights under article 14 (1),
provides that “Everyone has the right to seek and to enjoy in other countries asylum
from persecution”.
There are mainly two forms of Asylum:
• Territorial Asylum:
It is granted in the territorial boundary of a state providing asylum. This form of asylum
is mainly given to people who have been accused of political offences like sedition,
treason, and espionage in their home country.
In India, the most outstanding example of territorial asylum is the highest
spiritual leader of the Budhist community, the Dalai Lama. He was also the
temporal head of the then autonomous region of Tibet where the Chinese crushed a
public uprising for total independence. The Dalai Lama, alongwith his cabinet
colleagues, fled the Chinese repression and arrived into India in April 1959. He was
granted asylum and set up a shadow Tibetan government at Sharam Shala in what is
now the state of Himachal Pradesh.
A recent asylum case that hit the headlines was that of Edward Snowden.
He is an American whistleblower who copied and leaked highly classified
information from the National Security Agency (NSA) in 2013 when he was a Central
Intelligence Agency (CIA) employee and subcontractor. His disclosures revealed
numerous global surveillance programs, many run by the NSA and the Five Eyes
Intelligence Alliance with the cooperation of telecommunication companies and
European governments.
The U S government unsealed charges against Snowden of two counts of
violating the Espionage Act of 1917 and theft of government property and revoked his
passport. Snowden, who was then in Hong Kong, flew to Russia where the authorities
restricted him to the airport terminal for over one month, before granting him asylum.
• Extra-territorial Asylum:
Extra-territorial asylum is usually granted by a state usually at places which are not a
part of its physical territory. If a state grants asylum to a person in its embassy
established in a foreign state, it is called Diplomatic Asylum.
Asylum may also be granted to asylee in warships because they are exempted
from the jurisdiction of the foreign state in whose waters they are operating. Such
warships are under the patronage of the Flag state. The same is not the case with
merchant vessels as they are not immune to the provisions of international law. It is
clear that Extra-territorial Asylum is based on the framework of International Law
Conventions.
In the most high profile case in recent times, reported worldwide, the founder of
Wikileaks, Julian Assange was given asylum in Ecuadorian embassy in the U K after
the British government had approved his extradition to Sweden.
LEGAL STATUS OF ASYLUM: AT INDIAN AND INTERNATIONAL LEVEL:
India has no specific law dealing with the issue of asylum and is yet to enact one.
Refugee and asylum seekers in India are subject to various non-specific laws like The
Registration of Foreigners Act, 1939, The Foreigners Act, 1946, Foreigners Order,
1948, and Passport Act, 1920. There is no mention of the term ‘refugee’ in any of the
Indian laws and asylum seekers and refugees in India are subject to the definition of
‘Foreigner’ as a person who is not a citizen of India as per the aforementioned laws.
Since there is no specific asylum policy in India, the government grants asylum on a
case-to-case basis. Congress MP Shashi Tharoor in the year 2015 introduced the
Asylum Bill, 2015 which aimed to provide a legal basis to the issue of asylum in India.
The bill is still pending.
In the International sphere, the Geneva Convention along with the New York Protocol is
regarded as the Cornerstone of the legal regime towards the protection and security of
Refugees. The Convention Relating to the Status of Refugees, or 1951 Refugee
Convention, is a UN treaty defining who a refugee is and sets out rights of the asylum
seekers and the duties of the states granting it.
India is not a signatory to the 1951 Refugee Convention and its 1967 Protocol.
However, Asylum is considered an International practice based on Human Rights which
takes the shape of a customary law with time because once it is found in some of the
practices of the state without any legal basis, it creates an international obligation on the
state to uphold this customary practice
CORRELATION BETWEEN EXTRADITION AND ASYLUM:
Extradition aims at securing criminal justice and denying safe haven to fugitive leading
to a stable transnational criminal cooperation between the sovereign states. Asylum, on
the other hand, seeks to provide a safe and secure living for individuals on the run from
their home country in order to avoid political persecution. Granting asylum is clearly
distinguished from the order to refuse extradition even though the two can be
intertwined at times because there can arise two possibilities where a person’s
extradition might be sought when they are an asylee or they may apply for asylum at a
time when their home country is demanding their extradition.
Any extradition request made to a state for an asylum seeker must be in
compliance with the principle of non-refoulement enshrined in Article 33 of the 1951
Geneva Convention. The principle or law of non-refoulment forbids a country from
forcing asylum seekers to return to a country where they are likely to be subjected to
persecution based on "race, religion, nationality, membership of a particular social
group or political opinion". It is a principle of customary international law, as it
applies even to states that are not parties to the 1951 Convention Relating to the
Status of Refugees or its 1967 Protocol. It is also a principle of the trucial law of
nations.
The decision to extradite is left with the judicial authorities and the issue of
asylum is dealt by the executive decision on practical and political grounds most of the
times. Ends
