INTRODUCTION

Extradition is the legal procedure by which a person has been relocated to another state
to be tried or sentenced for offenses committed within the jurisdiction of the requesting
government. In addition, a bilateral or multilateral arrangement facilitates it. Several
nations are extradited without an arrangement, although these situations are rare. The
individuals who have claimed a case yet have not yet charged, those who have escaped
detention and others who have been arrested in absentia include extraditable citizens.
The law sets apart extradition, and often refers to the enforceable expulsion of
unsolicited individuals, from certain steps such as banishment, relocation and
deportation. Building on a practice dating back to antiquity, states forge extradition
treaties so they can pursue fugitives and other wanted individuals in faraway
jurisdictions. The proliferation of transnational criminal organizations, including
insurgency, cocaine trafficking, counterfeiting and cybercrime, has rendered extradition
ever more relevant. 1

The goal is to ensure the surrender of offenders from one country to another that contributes
to reciprocal collaboration between states in monitoring, combating, and suppressing foreign
and domestic crime. At present, the bulk of criminality is trans frontier and therefore, in this
age of globalisation, in which certain organizations and entities perform commerce and
businesses through numerous means and networks at an unparalleled pace, States have
acquired ample importance and interest over the years from being forced to extradite it.

The defence of a foreign person in the sense of international law against his own State by a
government. Asylum Whoever seeks asylum has no legitimate right to demand and no duty to
accept it is enforced by the sheltering power. An asylum claimant may qualify for the same
refugee protection for his spouse / child in the United States, move outside Canada.

 To qualify for asylum, a person must show they've suffered persecution or have a legitimate
fear they will face persecution in the future, based on any of these factors:

 race
 nationality
 religion

1
George J Andreopoulos, “Extradition” Aug 3,2010
 political opinion
 membership in a particular social group

ASYLUM: MEANING, TYPES, AND RATIONALE

The Latin word Asylum is originated from a Greek word “Asylia”, which means inviolable
place. The term asylum in common parlance means giving protection and immunity by a state
to an individual from their native country. The word asylum is used in daily speech
interchangeably with the term refugee; the two substantive distinctions exist in that a people
already outside of the country try to secure themselves from a nation where an individual is
patronized upon arriving, while the entity finds security of asylum upon arrival and is then
recognized as an asylum or a refugee.2

Asyle shall be recognized as a position of safety or sanctuary for the criminal, whether the
criminal is shielded from prosecution and oppression or is supported by a State against his
own government to shield a foreign person. The main purpose of asylum is to give shelter to
those who have well-rounded fear in their home countries of persecution. 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”.3

(1) Territorial Asylum:

It is given at the geographical limit of an asylum state. Each sovereign state has the power to
control and retain authority within its territories and so it is solely at its disposal to extradite
or give them asylum. A State thus has absolute jurisdiction over both its citizens and
foreigners. This form of asylum is primarily given to people convicted in their own nation of
political crimes such as sedition, disaster, and spy. Territorial protection is mainly dependent
on the sovereign's constitutional statute.

2
Jonathan Masters “What Is Extradition?”January 8, 2020

3
Shannon Dooling “What Is Asylum? Who Is Eligible? Why Do Recent Changes Matter?”December
03, 2018
(2) Extra-territorial Asylum:

The state outside its borders, and typically areas not part of its physically-oriented territories,
offers this type of asylum. Diplomatic asylum is in this situation called a state that gives
asylum at its embassy located within a foreign state. Asylum may also be given in warships
as they are excluded from the expertise of the international nation under which water they
operate. The Flag State has been funded by these fighting bows. The same is not the case
with merchant’s vessels as they are not immune to the provisions of international law. Hence,
Extra-territorial Asylum is based on the framework of International Law Conventions.

Rationae Materiae (Terms of Jurisdiction) and Rationae Personae (Terms of Jurisdiction) will
recognize the existing logic behind asylum. A sovereign State has the freedom to prevent any
other country's presence or conflict with its territories. This sovereignty theory forms the
foundation for territorial asylum and, because of its very existence, it has been broadened to
cover consulates, ambassadors, ships and sovereign State aircraft.

Rationae Personae states why certain people may not have the jurisdictional authority of a
State which might otherwise have exerted control over them because of territorial integrity
owing to protection given to them regardless of their status or ability. This unique form of
immunity extends to ambassadors, Heads of Government, government officials on some
mission, etc.

LEGAL STATUS OF ASYLUM: NATIONAL AND INTERNATIONAL LEVEL

Asylum seekers and refugees in India shall have numerous non-specific rules, such as the
Law on Aliens, the Legislation on Immigrants, 1946, the Declaration on Aliens, 1948, and
the Act on Passports, 1920. In any national legislation, there is no reference of the word
'refugee'; asylum seekers and refugees in India are described as 'foreigner' who is not an
Indian citizen in compliance with the above-mentioned legislation. These laws are used by
the Indian government officials in order to deal with the intricacies arising out of the entry of
refugees and asylum seekers in our country. Since there is no specific asylum policy in India,
the government grants asylum on a case-to-case basis.

The 1951 UN Convention on Refugees was concluded in Geneva in 1951, and followed by its
New York Protocol in 1967, in the international arena. As the foundation of the universal
legal framework for the security and health of refugees is the Geneva Agreement, as part of
the New York Protocol. The 1951 Refugee Convention is a treaty of the United Nations that
defines who the refugee is and sets the rights and duties of the nation that grants it to asylum
seekers.

Congress MP Shashi Tharoor initiated the 2015 Asylum Bill to include the legal framework
for the asylum issue in India in 2015. The resolution remains unresolved and will be debated
and reviewed by the parliamentarians.

The 1951 Convention signed in Geneva in 1951 and followed by its New York Protocol of
1967 was the source of asylum rules. As the centre of the International Legal Law on
Refugee Security and Health, the Geneva Convention together with the New York Protocol is
treated. In the foreign domain, the source of asylum legislation is the 1951 United Nations
Refugee Agreement, signed in Geneva and followed by the Agreement on the Status for
Refugees, or the 1951 United Nations Convention on Refugees, which determines who a
refugee is, and lays forth the privileges of the asylum seeker and the obligations of the
country granted him or her.4

This agreement regulates the manner in which states which require asylum seekers and
refugees to handle these people in their territory. The 1951 Refugee Convention and its 1967
Protocol have not been ratified by India. Asylum is viewed as an foreign human rights norm
that assumes the shape of a customary rule over time as it establishes an legal duty of the
State to follow such customary norm because it is contained in other State activities without a
statutory basis.

Legal framework in India

India has a territorial structure and is considered a Federation of States. Under foreign law,
this union is called a territory. Parliament also retains the power to discuss the matters of
citizenship, naturalization and immigrants, i.e. the assembly of the Union. India has no law
regulating the entry and classification of refugees that governs refugees. The refugees were
treated officially and administratively. The consequence is that, unless a special provision is
rendered as for Ugandan refugees (of Indian origin) since the Uganda Order of 1972 has been
signed, refugees are being handled under Indian law relevant to aliens.5
4
Andrea Stephenson” What is Extradition? - Definition, Laws & Example” , retrieved on 5-4-2020

5
Sharia Anjum“A study of the law of extradition: The Indian context” 9-May-2015
The words 'alien' refugees in India was regarded. In Article 3(2, paragraph 3 and 17 Liste I,
Annex 7) of the Indian Constitution and in Section 3(2)(b) of the Indian Citizenship Act,
1955 and some other Statutes, the term "alien" is contained in Indian Constitution and even in
Indian Civil Procedure Code Section 83. In India, the Act on immigrants is the Immigrants
Act of 1946, in which the Central Government is empowered to control the entry and the
activity of aliens in India, and removal from them.

The 1939 Immigration Act deals with the identification of the entry, existence and exit of
foreigners from India. However, the Passport Act of 1920 and the Passport Act of 1967 deal
with the government's powers to enforce passport requirements for admission into India, and
grant passport and travel documents governing departures of people from India. Since such
laws does not differentiate true refugees from other foreigners, refugees run the risk of being
detained by and charged by immigration officials if they go to India without a proper passport
/ travel card. If a refugee is charged for execution of any of the crimes alluded to in the
above-referred actions by customs, immigration or police officials, the refugee is usually
provided to police and a First Details Report is filed on his behalf. Subject to the terms of
these Statutes, if found in the seaports, airports, or entry points on the international border the
refugee can face forced deportation.6

The regulatory authorities may even seize him and interrogate his request for refugee / asile
awaiting a verdict. himself. The refugee is therefore prospected for a violation of the
registration of foreigners Act of 1939 and its Rules, and, if found guilty of any crime under
this Act, he or she is liable to incarceration that can amount to one year or a penalty of up to
1,000 rupees, or both. In certain instances, though, the courts have taken a lenient view by
punishing for unlawfully accessing and/or behaving in India, as well as by holding prisoners
in abeyance by refugee status determination, keeping expulsion, and giving refugees the
opportunity to reach the UNHCR, the refugee is always at danger.

6
Pandey, Akhilesh Kumar“Extradition law and policy in india”3-4-2014
Constitutional Framework for Protection of Refugees

The Indian Constitution grants refugees’ certain fundamental freedoms. The privileges to
dignity (Article 14), to existence and to personal independence (Article 21), to unlawful
arrest security (Article22), to independence of faith (Article 25), and of the Supreme Court to
impose Constitutional rights (Article 32) in view to prosecutions to crimes are as applicable
to non-citizens as to the non-citizens, including refugees. Constitutional laws secure the
refugee's civil rights to lead dignified lives. The radical definition now provided to Article 21
requires the right to solitary custody, the right to medical care and shelter. 7

Throughout the lack of laws governing and supporting the residence of refugees throughout
India, the Supreme Court has recourse to Section 21 of the Constitution. In NHRC v.
Arunachal Pradesh State the Government of Arunachal Pradesh was invited to perform its
obligation of safeguarding and transmitting its appeal for citizenship to the entities concerned
and not denying Chakmas 'lives, safety and well-being.

In reality, Article 21 of the Indian Constitution placed such restrictions, which would
definitely involve the applicant applicant and any State intervention, which would deprive an
alien of life and personal rights without the procedures laid down by statute. The Author also
claimed that a examination of the legitimacy of the Foreigners Act against Section 21 would
have been rendered by the Court.

Incorporating International Law in Domestic Law

It is true that India has not ratified the 1951 Convention and the 1967 Protocol to it, however,
it acceded to various Human Rights treaties and conventions that contain provisions relating
to protection of refugees. The terms of Article 51(c) and Article 253 and even the concept of
no refoulement, as a party to such conventions, India has a legal responsibility to safeguard
refugees 'human rights. The same agreement obliges the government to respect the policy of
non-refoulement. India is a member of the UN High Commissioner for Refugees Executive
Committee, and is dedicated to creating a spiritual, if not legal responsibilities.

In Vishaka v. State of Rajasthan, the Court stated in relation to the implementation of

international treaties in national law that foreign law may be ignored. The problem then
emerges as to how India will appeal to the 1951 Convention in its definition of domestic law
7
Priyansh Yadav “Refugee Law: The Indian Perspective” 02/02/18
and if such conventions ought to be ratified. It should be noted that the pure ratification of the
Convention of 1951 does not guarantee that asylum seekers are not held away; even Article
42 of the Convention provides for reservations concerning the rights of refugees which
contradict the purpose of ratifying the Convention.

The alternative to the handling of refugees with respect is either to ratify and implement the
1951 Convention into domestic law or to pass a standardized statute expressly for refugees to
the executive and the judiciary not to assess their fate at the whim of the executive.

EXTRADITION

In Black’s Law Dictionary, extradition has been defined as “The surrender by one state or
Country to another of an individual accused or convicted of an offense outside its own
territory and within the territorial jurisdiction of the other, which, being competent to try and
punish him, demands the surrender.” Hence it can be summarized that Extradition is the act
of sending a person from one jurisdiction to another where he/she is accused of committing a
crime and is being demanded to get them tried as per the legal procedure in the sovereign
demanding such person.8

LEGAL STATUS OF EXTRADITION: FROM INDIAN & INTERNATIONAL LAW

PERSPECTIVE

The extradition from India to another country or vice versa, in compliance with Indian law,
shall be regulated by the provisions of the Extradition Act of 1962. Such act establishes the
formal framework for extradition in India. The Act governing extradition comprises two
timetables and five books. To make the extradition procedure more effective and hassles-free,
up to now, the Indian government has signed bilateral extradition arrangements with 42
nations.

The extradition obligation is subsequently attributable to the treaties and agreements signed
between India and other nations. Extradition can be recognized as a sovereign act, and in
8
George J Andreopoulos” Extradition“Aug 3,2010
cases with no convention, and lack of foreign obligation, every form of extradition action
relies on the ideas and committees of reciprocity, which are a core component of
International friendly relations between nations and states. In compliance with Section 3 of
the Extradition Act the State may inform the informed countries of the declaration.9

The Act further determines the extradition offences are and who can be extradited in
compliance with Section 2(c) and Section 2(f). In compliance with the norms of international
law, a State is not obliged to turn over a prisoner to another sovereign State. There is no duty
to extradite the States as such in foreign law. Although there are certain basic principles
governing the extradition process which are accepted and followed by several nations.

The principle of Dual Criminality:

This is one of the most relevant concepts regulating the rule of extradition, also known as the
Duel Criminality Doctrine. This notes that the procedure of extradition will proceed only
where the offence under investigation becomes an offense in both the sovereign states
'jurisdiction.

Rule of Speciality:
This provision is based on the principle of resisting the application by the requesting state for
unconditional extradition. The law notes that for this particular offence the suspect extradited
will be charged and not for any case. In its decision on Daya Singh Lahoria vs. Union of
India, the Apex court [(2001)4 SCC 516] claimed that an offense committed in India by a
criminal under the extradition treaties must, and cannot, be punished but for an offense put
out in the extradition decree. The Indian criminal courts cannot charge these fugitives of any
other crime except those authorized to be charged.

The principle of Proportional Punishment:

Extradition may be refused where the extradited individual is likely to be prosecuted out of
measure or in a extreme manner relative to the degree of the crime. Essentially, this concept
is used to prevent internationally recognized human rights abuses. Where the claimant state is
in a position to destroy the prisoner, this appeal is refused to secure and avoid breaches of
universal human rights laws in keeping with this concept.

9
Sibylle Kapferer “The Interface between Extradition and Asylum”November 2003
 Opportunity for Fair trial:
The requesting State must ensure that the suspect is granted the chance to establish himself in
the claimant State until the extradition procedure is begun. The theory of non-inquiry is
interpreted where the petitioning state is not obliged, according to the punctilious assessment
requirements of the demanded state, to apply the judicial procedures. The theory is not strict
and static in nature; furthermore, if the requesting State meets the same concept of the
judiciary, the requesting State may challenge the judicial procedure.

The surrender of an accused or convicted criminal to another State may be defined

momentarily as the surrender of the suspect by one State. More specifically, extradition can be
characterized as the mechanism through which a state surrenders a individual within its
competence to be charged and sentenced upon demand by another State, and only penalty for a
crime which is punishable by the laws of the petitioning State and which is carried out beyond
the jurisdiction of the demanded State if it has already been convicted. Of course, extradition
plays a major role in the international war against crime particularly in the current age of the
organized structure of crime and violence. Many nations are not obliged to surrender a
convicted prisoner to the justice system of another nation. Since there is no specific universal
extradition statute, it is now necessary for the countries to start forming bilateral arrangements
and deals on extradition with others. There are a variety of considerations in the order to
extradite. The extradition legislation has evolved in line with evolving conditions over a span
of time.

Extradition deals have expanded and throughout the early 18th century the content of such
deals has been more commonly used to identify desert soldiers as extricable offenders. The
extradition protocol has become a standard procedure. Army desertion became a significant
issue for the armies, and so extradition arrangements were mainly dealing with foreign
aggressors during the eighteenth and nineteenth centuries. By the nineteenth century, the
modern conception of extradition began to take shape, whereas previously extradition had
focused on narrow categories of offenders - political enemies, leaders of rebellions, military
deserters.

A modern interpretation of the position of extradition was slowly integrated into foreign
treaties. Treaties define extraditable offenses and also mention non-extricable offenses. Finally,
extradition was certainly "valid." Daily law judgments on extraditions were made in national
courts and significant jurisprudence was quickly established in the fields of national
legislation. Bilateral extradition arrangements started to expand at the end of the 18th century.
One of the most notable trends in extradition history are that when extradition is introduced
during the nineteenth century as a diplomatic practice that mostly omitted common criminals.

The successful management of criminal justice is very critical for foreign and domestic
stability. Within a historically polarized country, governments must eventually encounter
territorial obstacles to expand the criminal enforcement systems of their individual arms
beyond their national boundaries. The unavailability of the perpetrator inside the national
borders (accused or guilty) is clearly a big drawback for the target government, which is
engaged in placing in place the system of criminal justice for such an individual.

Whenever such an inmate escaped to another nation in order to remain untouched by a single
state's criminal justice system, extradition gives the afflicted state a legitimate way to restore
the fleeing convict to his authority. Extradition is also a procedure allowing constitutional
inability to be replaced through sovereign barriers and, in view of the legislative hurdles,
Extradition is a crucial legal instrument to make it more possible to administrate a given State's
criminal justice.

Today, thanks to technical developments, the scale and scope of illegal activity across the
world has expanded considerably. In the current world, both national and foreign stability are
challenged by significant crimes such as violence, narcotics trafficking, and major economic
crimes. Given the devastating effects of these offences, the human and collective defence of
the international community has been severely questioned, extradition has acquired exceptional
importance as a way of collaboration by the State to combat offences worldwide. Legal treaties
are structured to counter major offences such as cocaine trafficking, etc.

India is still one of the main threats of militant attacks, illicit abuse, economic offences and
will also be eager to obtain constructive answers to its requests to extradite fugitives. In the
assessment of the extradition case the civil rights status of the requesting state was addressed.
Practices of the death penalty implementation and abuse of the receiving state have been
especially significant foreign factors when refusing calls for extradition.
CORRELATION BETWEEN EXTRADITION AND ASYLUM

Extradition is essentially the handing over of a prisoner to another Jurisdiction for the
sake of judicial proceedings. That is how two independent states have legal protection
for such reciprocal arrangements or ad hoc arrangements. Asylum, on the other side,
seeks to offer security for those at danger in their own nation under the legal system.
Often, refuge ceases before deportation starts. Both are not the same and have structural
and technical variations that have developed over time.

Extradition helps to protect fair justice and deter fugitives from accessing a safe harbor,
culminating in successful transnational international collaboration. Asylum aims at
ensuring that people leaving their own nation work safely and comfortably so as to
escape political repression. Asylum can be clearly distinguished from an amnesty
request, although at occasions, the two can be intertwined, as two scenarios can emerge
in order to seek a deportation of an individual when he or she is an asylum seeker or
when they can seek asylum from the country of origin. 10

Any demand for deportation to the asylum claimant State shall be performed according
to Article 33 of the 1951 Geneva Convention and shall be in accordance with the non-
refoulement requirement of international law. The extradition request is referred to the
courts and the question of asylum is addressed primarily on realistic and political
grounds by the executive order. Such principles are inconsistent in nature and are not a
representation of each other's goals and values. If the issue remains in the court of law,
the deportation petition against a person who was denied refuge in his or her country will
not be accepted if there is a refuge appeal.

CONCLUSION
In brief, Extradition is the term assigned to the systematic legal mechanism by which persons
charged or convicted of wrongdoing are submitted for trial or penalty from one State to
another. It is a form of international criminal collaboration aimed at achieving justice.
Extradition trials are a somewhat specific form of judicial practice. This does not require any

10
Priyansh Yadav “Extradition-and-Asylum-concentrate“May 30, 2018
criminal case being created. It is targeted at aiding cases in the administrative authority of
another State that are or have not yet took effect.

Asylum means offering sanctuary to those at risk and in danger, in compliance with States’
obligations under international refugee law, human rights law and customary international
law. Asylum can be granted to people who are unable or unwilling to return to their home
country because of persecution or a well-founded fear of persecution on account of race,
religion nationality, membership in a particular social group or political opinion. Applicants
have the burden of proving that they are eligible for asylum.

Over time, both areas have undergone significant legal and practical developments. On the
one hand, extradition has developed since the 18th century, as it is deemed a matter of state
procedure and has been a law term solely under the power of sovereign rulers.

Extradition thus came under the auspices of a set of rules which largely represent a agreement
among States and which, in reaction to novel types of crime and security issues, have
significantly modified, such as the appearance after the 1970s of an international terrorism
threat. It has contributed to other limitations on the basis of denial of extradition and
simplification.