Extradition and Asylum

Extradition is the surrender of an accused or convicted person by the State where he is found to the State that seeks to prosecute or punish him. It is not an obligation under general international law; it depends on treaty, reciprocity or domestic law. Aut dedere aut judicare (extradite or prosecute) is a treaty-based obligation (Hague Convention for the Suppression of Unlawful Seizure of Aircraft 1970; Torture Convention Art 7). In Belgium v Senegal (Habré case, ICJ 2012) the Court held that Senegal violated Art 7 CAT by failing to submit the case for prosecution.

1. Dual criminality: the act must be an offence in both requesting and requested States.

2. Speciality: the surrendered person can be tried only for the offence for which extradition was granted, unless the requested State consents.

3. Political offence exception: no extradition for political offences (pure vs relative political offences). Attentat clause (Belgian clause, 1856): an attack on a head of State is not a political offence. Terrorism, genocide, war crimes and hijacking are increasingly excluded from the political offence exception.

4. Non bis in idem (double jeopardy).

5. Prima facie case (common law States); non-extradition of nationals (civil law States such as Germany and France; common law States generally extradite nationals).

6. Death penalty and torture risk: Soering v UK (ECtHR, 1989) – extradition to the USA where he faced the death-row phenomenon would violate Art 3 ECHR; Chahal v UK (1996); Othman (Abu Qatada) v UK (2012) on fair trial risk.

7. Reciprocity and lapse of time.

8. Extradition vs deportation/expulsion: extradition is on request of another State, treaty-based and with judicial scrutiny, for criminal justice; deportation is a unilateral act removing an alien in the State’s own interest. Disguised extradition/rendition is controversial (Eichmann; Re Bennett).

9. Interpol Red Notice is a request to locate and provisionally arrest, not an international arrest warrant.

• Extradition Act 1962 applies to both treaty States and non-treaty States (by notification and arrangement – s. 3). The Central Government processes requests; a Magistrate’s inquiry is held (s. 7); s. 2(c) defines ‘extradition offence’ (punishable with imprisonment of at least one year under the laws of both States).

• Section 31: the Central Government may discharge or refuse surrender, e.g., where the offence is of a political character or the request is not in good faith/in the interests of justice. Speciality is also recognised under the statutory scheme.

• India has extradition treaties with 40+ States and arrangements with several more (India–UK 1992; India–USA 1997; India–Bangladesh 2013, amended 2016).

• Abu Salem v State of Maharashtra (2011): the Supreme Court held that the Government of India was bound by its assurances to Portugal (no death penalty, no more than 25 years) – extradition assurances bind courts and the executive alike (speciality).

• Recent examples: extradition of Tahawwur Rana (26/11 accused) from the USA in April 2025; Mehul Choksi arrested in Belgium in April 2025 (extradition proceedings); Vijay Mallya and Nirav Modi (UK courts, prison-conditions assurances); Bangladesh’s request concerning Sheikh Hasina (treaty political-offence exception debate).

• Fugitive Economic Offenders Act 2018 supports India’s efforts against economic offenders abroad.

Asylum is protection granted by a State to a person (usually a political refugee) on its territory or in its premises, with non-surrender to the State of origin. Asylum is a right of the State, not of the individual – UDHR Art 14 recognises only the right to seek and enjoy asylum; there is no corresponding duty to grant it (except through non-refoulement).

Types:

1. Territorial asylum – within State territory; flows from territorial sovereignty. UN Declaration on Territorial Asylum 1967 (UNGA Res 2312(XXII)) – non-binding; Art 3: no rejection at the frontier or expulsion where persecution may follow.

2. Extra-territorial (diplomatic/neutral) asylum – in embassies, consulates, warships, aircraft; exceptional and mainly Latin American practice.

Cases and instruments:

• Asylum Case (Colombia v Peru, ICJ 1950): Haya de la Torre, a Peruvian rebel leader, took refuge in the Colombian embassy in Lima. The Court held Colombia was not entitled to unilaterally and definitively qualify the offence (political or common) so as to bind Peru; diplomatic asylum derogates from territorial sovereignty and needs a special legal basis; no regional custom was proved.

• Haya de la Torre Case (Colombia v Peru, 1951): the Court declined to order surrender but held that asylum could not continue indefinitely; parties were to negotiate a solution.

• Latin American Conventions: Havana 1928, Montevideo 1933, Caracas Conventions 1954 (Diplomatic Asylum; Territorial Asylum).

• VCDR 1961: Art 22 (inviolability of mission premises) and Art 41 (premises not to be used in a manner incompatible with mission functions) – no general right of diplomatic asylum.

• Examples: Cardinal Mindszenty in the US legation in Budapest (1956–71); Julian Assange in the Ecuadorian embassy in London (2012–2019); the Dalai Lama in India (1959).

• Regional: African Charter Art 12(3); American Convention Art 22(7); EU Charter Art 18. India is party to no such regime and acts through executive discretion and Art 21 jurisprudence.

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