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.

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. Under U.S. immigration law, an asylum-seeker
is constitutionally allowed to stay without risk of removal in the United States. An asylum
claimant may qualify for the same refugee protection for his spouse / child in the United
States, move outside Canada.

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.

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”.

(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) 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.

Who Is Eligible and Where Can You Apply?

"Any alien who is physically present in the United States or who arrives in the United States
(whether or not at a designated port of arrival ...), irrespective of such alien's status, may
apply for asylum ..."

That quote is from the Immigration and Nationality Act. It means that the right to at
least apply for asylum is enshrined in U.S. law.

And, according to the above provision, that application process can begin at what's known as
an "official port of entry" — think airports, official border crossings, or basically anywhere
you're interviewed by a U.S. Customs Border Protection officer before being allowed into the
U.S. — or, alternatively, at places in between those official entry points.

For example, a woman illegally crosses into the U.S., avoiding an official port of entry. After
crossing into the U.S., she encounters a border agent — the officials who patrol the wide
swath of land between official entry points. Even though she entered the U.S. without being
processed through an official port of entry, according to U.S. immigration law, she is still
legally entitled to request asylum. She can tell the border agent she fears returning to her
home country and request an interview to begin the asylum application process.

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.

LEGAL STATUS OF EXTRADITION: FROM INDIAN & INTERNATIONAL LAW

PERSPECTIVE

As per the Indian Law, the extradition of an escapee or fugitive from India to another nation
or vice versa is dealt by the rules laid down in the Extradition Act, 1962. This law forms the
legislative basis for extradition in India. The Extradition act deals with two schedules and
five chapters. The Government of India till date has entered into Bilateral Extradition treaties
with 42 countries to make the extradition process efficient and hassle-free.

Hence the obligation for extraditing is due to the treaties and arrangement entered into by
India with other nations. It needs to be understood that an Extradition is a sovereign act and
in cases where there is no treaty and absence of international duty between the two sovereign
states, any sort of extradition activity is dependent upon the ideas of reciprocity and comity
which are an essential part of the International principles of amicable cooperation between
states or nations. As per Section 3 of the Extradition Act, the government can issue a
notification to extend the notifications of the act to the notified countries. The act further
defines the ambit of what Extradition offenses are and who can be extradited as per Section
2(c) and Section 2(f) respectively. As per the International Law conventions, a state is not
under a binding obligation to surrender a fugitive to another sovereign state. There is no duty
as such imposed by the International law on the states to extradite. Although there are certain
basic principles governing the extradition process which are accepted and followed by several
nations.

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 offense in both the jurisdiction of the sovereign states.
Rule of Speciality:
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 very crime and not some other. In the judgment given by the Apex court in the case
of Daya Singh Lahoria vs. Union of India [(2001) 4 SCC 516], it was stated that a fugitive
criminal brought in India under extradition treaty can only be tried for the offense provided in
the extradition decree and not for any other offense. The Criminal courts in India cannot try
such fugitive under any offense other than the one allowed for trial.
The principle of Proportional Punishment:
Extradition may be refused in cases where there is a possibility for the extradited individual
to receive a punishment out of proportion or severe in form when compared to the degree of
offense. This principle is specifically invoked in order to avoid violation of Human right
norm accepted globally. Where there is a possibility of the death of the fugitive in the
requesting state, 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 requested state it is ensured that the fugitive
will be given a chance to represent himself under a procedure of fair trial in the requesting
state. This principle is read with the principle of non-inquiry, where the requesting state is
under no obligation to subject its judicial procedures as per the punctilious evaluation criteria
of the requested state. This principle isn’t absolute and rigid in nature but the requested state
can question the judicial procedure in the requesting state if the same is on the face of it is
against the principle of law and justice.

CORRELATION BETWEEN EXTRADITION AND ASYLUM

Extradition is mainly the surrendering of a fugitive by one state to another for the
intention of criminal prosecution. This is a way of providing legal assistance between
two sovereign states on the basis of some bilateral treaty or ad hoc agreement. Asylum,
on the other hand, is about offering protection to those at risk of the legal framework
operating in their home country. It is at times said that asylum ends where extradition
initiates. Both of them are not identical and have procedural and functional differences
which have evolved with time.

Extradition aims at securing criminal justice and denying safe haven to fugitive leading
to a stable transnational criminal cooperation between the sovereign states. Whereas
Asylum 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 they are
being asked to extradite by their home country.

Any extradition request made to a state for an asylum seeker must be in compliance with
the principle of non-refoulement in International law enshrined under article 33 of the
1951 Geneva Convention. 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. These concepts are conflicting in nature and are not mirror
image of one another which strive for their different goals and ideals. A request for
asylum cannot be considered if there is an extradition case pending and the court of law,
would not hear extradition case against an individual granted asylum in their country.