National and International law are the only two forms which support and govern the practice of Asylum. India which is home to one of the largest refugee populations in South Asia 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 National 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 laws mentioned above.
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.
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 and is yet to be taken up by the parliamentarians for consideration and evaluation.
In the International sphere, the body of laws governing Asylum is the 1951 United Nations Refugee Convention signed in Geneva and supplemented by its 1967 New York Protocol.
The Geneva Convention along with the New York Protocol is considered as the Cornerstone of the International legal regime towards the protection and security of Refugees.
The Convention Relating to the Status of Refugees, or the 1951 Refugee Convention, is a UN treaty defining who a refugee is and sets out rights for the asylum seekers and the duties of the nation’s granting it.
Overall this treaty governs how states allowing asylum seekers and refugees in their territory should treat these people. India is not a signatory to the 1951 Refugee Convention and its 1967 Protocol.
Asylum is considered an International practice based on Human Rights which takes the shape as 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 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 treaties or ad hoc agreements.
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-refoulment 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 with by the executive decision on practical and political grounds most of the time. These concepts are conflicting in nature and are not mirror images 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 an extradition case against an individual granted asylum in their country.