Unit II- Extradition and Asylum.

The meaning of the term ‘asylum’, in the context of immigration, is the protection offered by a
country or state to a refugee who has left their home country, or feels that they cannot safely return
to their home country, because of persecution they have suffered or may suffer on the grounds of
race, religion or some other factor.

Under the modern right of asylum, any person facing persecution in their home country may seek
asylum, that is protection, in another country or state.

Asylum may be sought when persecution happens, or may happen, for any of the following
reasons:

• Race
• Caste
• Nationality
• Religion
• Political opinion
• Membership and participation in certain social groups or activities
• Sexual persecution and violence, for instance, female genital mutilation
• Civil war
• Ethnic cleansing
• Tribal violence
• Sexual or gender orientation
The last five issues mentioned above are not always seen as acceptable reasons for the granting of
asylum but the UN Refugee Agency (UNHCR) has urged that these reasons be considered.

What is the difference between an asylum seeker and a migrant?

Generally, a migrant leaves their home country to begin a new life in another country, possibly for
employment reasons, education or to begin a new marriage. A migrant’s chance of being granted
the right to live in a country is based on the legal immigration process of that country.
By comparison, an asylum seeker flees their home country to escape persecution. They have a
right to seek asylum in accordance with international asylum law.

What is the difference between an asylum seeker and a refugee?

An asylum seeker is a person who has applied for asylum. A refugee is a person who has been
granted asylum.

When an asylum seeker applies to a country for protection from persecution in their home country,
they must prove both their identity and their eligibility for refugee status by providing supporting
documents, such as passport and birth certificate, and attending an initial screening and further
interview with immigration and government officers.

Where the asylum seeker is already resident in the country where they are seeking protection from
persecution, it will be necessary to prove residency in the asylum country by providing evidence
such as bank statements or household bills.

Successful applicants will be granted the status of refugee and the right to safe asylum.
International law states that refugees should have the same rights and assistance offered to any
foreigner who is a legal resident. These rights include:

• fair treatment
• freedom of thought, opinion and expression
• freedom of movement
• freedom from torture or other degrading actions
• freedom to practice their religion
• freedom from discrimination
• economic and social rights
• medical care
• education
• employment
In return, a refugee is expected to respect and uphold the laws of the country which has granted
asylum to them.
Refugee or asylum seeker? Both terms are often taken to mean the same thing, but in reality, there
is a crucial difference between refugees and asylum seekers, as these terms actually refer to people
at different stages in the process of seeking protection from persecution. A refugee is an asylum
seeker whose claim for asylum has been successful.

India has signed neither the 1951 United Nations Refugee Convention nor its 1967 Protocol, which
has 140 signatories, an overwhelming majority of the world’s 190-odd nations. However, India
continues to host a large population of refugees. In the main, they are treated kindly. The Asylum
Act, 2015 (10 chapters and 46 secs).

What is the purpose of the 1951 Refugee Convention and its 1967 Protocol?
The 1951 Convention relating to the Status of Refugees and its 1967 Protocol together are the
most comprehensive instruments which have been adopted to date on a universal level to safeguard
the fundamental rights of refugees and to regulate their status in countries of asylum.

What is the difference between the 1951 Convention and 1967 Protocol?
The main difference between the two documents was the notion of dateline; the 1967
Protocol included refugees from all countries appose to the 1951 Convention that only included
refugees from Europe.

Extradition:

Extradition is an action wherein one jurisdiction delivers a person accused or convicted of

committing a crime in another jurisdiction, over to the other's law enforcement. It is a cooperative
law enforcement procedure between the two jurisdictions and depends on the arrangements made
between them. Extradition, in international law, the process by which one state, upon the request
of another, effects the return of a person for trial for a crime punishable by the laws of the
requesting state and committed outside the state of refuge.

What is the purpose of extradition?

The extradition process enables governments to bring fugitives abroad to justice, but it can be
fraught with political tension, even when a treaty is in place. Extradition treaties help
governments bring criminals who have fled their country to justice.
Under International law, extradition is a formal, diplomatic process by which one state requests
another to effect the return of custody of a fugitive criminal for crimes punishable by the laws of
the requesting State and committed outside the jurisdiction of the country where such person has
taken refuge. International extradition. is an obligation undertaken by States in good faith to
promote and execute justice.

The first formal act providing for extradition was adopted in 1833 by Belgium, which also passed
the first law on the right to asylum. Extradition Acts not only specify extraditable crimes, but also
detail procedures and safeguards whilst defining the relationship between the Act and the treaty.

Some states allow extradition requests in cases where they have exchanged declaration of
reciprocity with the requesting States. Although there has been a practice of refusing extradition
requests in the absence of a binding international obligation between the states, often fugitives are
surrendered on the basis of municipal law or as an act of good faith by the State parties. However,
the uncertainty implies that non-party States to extradition treaties may be a safe haven for
fugitives.

The process of extradition is subject to two factors: existence of a binding extradition agreement
and the municipal laws of the country from which the extradition is being requested.

Procedure Under the (Indian) Extradition Act, 1962 (Act)

The Government of India presently has bilateral Extradition Treaties with forty-two countries and
Extradition Arrangements with nine more countries to quicken and ease the process of extradition.
In India, the extradition of a fugitive from India to a foreign country or vice-versa is governed by
the provisions of the Indian Extradition Act, 1962. The basis of extradition could be a treaty
between India and a foreign country and in absence of a treaty, an arrangement for extradition.
Under Section 3 of the Act, a notification could be issued by the Government of India extending
the provisions of the Act to the country/ countries notified.

The legal basis for Extradition with States with whom India does not have an Extradition Treaty
(non-Treaty States) is provided by Section 3(4) of the Indian Extradition Act, 1962, which states
that the Central Government may, by notified order, treat any convention to which India and a
foreign state are parties, as an Extradition Treaty made by India with that foreign state providing
for extradition in respect of the offences specified in that Convention. India is also a party to the
1997 International Convention for the Suppression of Terrorist Bombings. This also provides a
legal basis for Extradition in Terror Crimes.

In May 2011, the Indian Government ratified two UN Conventions – the United Nations
Convention against Corruption (UNCAC) and the United Nations Convention against
Transnational Organized Crime (UNCTOC) and its three protocols.

Where there exists an Extradition Treaty between the concerned countries, the extradition
request has to be in terms of the specific requirements therein. In terms of the Comprehensive
Guidelines for Investigation Abroad and Issue of Letters Rogatory (LRs) issued by the Ministry
of Home Affairs, extradition requests are made only after the filing of a charge sheet, cognizance
of the same and issuance of an arrest warrant. If the accused is to be arrested and produced in the
courts of India, the requisite action is through the extradition process.

Thus, after the Investigative Agency has filed the charge sheet, if the Magistrate takes cognizance
of the same, issuing orders/directions justifying the committal of the accused to trial and seeking
the presence of the accused to face trial, the request for extradition would be made to the Ministry
of External Affairs. In passing such a warrant for the apprehension of the accused, the Magistrate
will be governed by the considerations indicated hereinabove.

The request is in the form of a self-contained affidavit by the Magistrate, making out a prima
facie case against the accused. To make out a prima facie case, the affidavit is required to provide
brief facts and a history of the case with reference to the statements of witnesses and relevant
documentary evidence, provisions of law invoked and the description of the accused, establishing
his identity. It is necessary to specify the offences for which the accused is charged and the
provisions of law indicating the maximum sentence thereof.

The extradition request must contain an order of the Magistrate justifying the accused person’s
committal to trial on the basis of the evidence made available in the charge-sheet, with directions
seeking to secure the presence of the accused in Court to stand trial in the said court from the
country of present stay, along with a copy of the First Information Report (FIR) duly counter-
signed by the competent judicial authority. Such request must be accompanied by an original and
open-dated warrant of arrest stating clearly the offences for which the accused has been charged
and that the Court has taken cognizance of the said sections.

An alleged offender may not be extradited to the requesting State in the absence of a treaty. The
States are not obligated to extradite aliens/nationals, or where the crime is not identified as an
extraditable offence in the treaty. Extradition may be denied for purely military and political
offences. Terrorist offences and violent crimes are excluded from the definition of political
offences for the purposes of extradition treaties. In cases where dual criminality exists, where the
conduct constituting the offence amounts to a criminal offence in both the requesting country and
the foreign country, the offence may be tried in either country depending on factors such as
territory where the offence was committed as well as the nationality of the accused.

Extradition may be denied where due procedure under the Extradition Act of 1962 is not followed.

Extradition Treaty Between India & UK

According to Article 1 of the Extradition Treaty between India and the UK, it is the duty of India
and the UK to extradite any person being accused or convicted of an extradition offence committed
within the territory of one State either before or after the entry into force of this Treaty. Each
contracting state shall afford each other mutual assistance in criminal matters[vii].

An extradition offence is defined as one that is punishable under the laws of both the contracting
States by a term of imprisonment for a period of at least one year, excluding offences of political
character but including offences wholly related to fiscal character or serious offences like
murder, causing explosion, terrorism etc.

The request for extradition could be refused if the person is being tried for the extradition offence
in the courts of the requested State or if the accused satisfies that the prosecution in the requested
State is unjust, oppressive, prejudiced, or discriminatory.

Where the request is for a person already convicted, then a certificate of conviction is necessary.
In urgent cases, the person may be provisionally arrested by the requested State till his extradition
request is processed. However, he may be set at liberty after the expiration of 60 days from the
date of arrest if his extradition request has not been received. Once a person is extradited to the
requesting State, he can only be prosecuted for the offence requested, any lesser offence or any
offence consented to by the requested State within a period of 45 days.

Extradition may be refused for an offence involving the capital punishment in the requesting State
whereby no death penalty is given in the requested State for the same offence. After extradition is
granted, the requested State shall surrender the accused at an indicated point, or the requesting
State shall remove the person from the territory within one month or as specified.

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