Asylum and Extradition: Meaning, Purpose & Key Legal Differences

Aloo commits a crime in Country A and runs away to Country B; what happens next? Can Aloo be sent back to Country A or stay safely in Country B?

That's where asylum and extradition, two concepts from international law, come in. 

Extradition is when Country B hands over Aloo to Country A where the crime was committed.– ‘tumne galat kiya hai…., ab wapas chalo!’🕵️‍♂️

Asylum is the protection a country grants within its territory or under its control to someone seeking safety– ‘tumhe khatra hai, isliye tum yahan safe ho!’🛡️

Keep in mind that asylum and extradition are mutually exclusive. Asylum stops where Extradition begins.

But it's not that simple. The real twist lies in the details — when can a person be granted asylum or extradited? When can either be denied? Let’s break down these two crucial international law concepts in a way that’s simple, engaging, and unforgettable.

What is Asylum?

By asylum, we mean the shelter and active protection extended to a political refugee from another State by a State that admits him on his request. It involves 2 elements-

(a) A shelter that is more than a temporary refuge, and

(b) A degree of active protection on the part of authorities that have control over the territory of asylum.

The Institute of International Law has defined asylum as “the protection which a State grants on its territory or in some of her place under the control of its organ(s) to a person who comes to seek it.”

For example, the influx of refugees from Bangladesh in 1971 during the Bangladesh Liberation War. It occurred because the military regime of General Yahya Khan committed genocide, forcing millions from East Pakistan (now Bangladesh) to seek asylum in India. India not only welcomed these refugees but also cared for them, demonstrating great hospitality to the world.

This was per Articles 1 and 3 of the Draft Convention on Territorial Asylum, as well as Articles 31, 32, and 33 of the 1951 Refugee Convention. India's actions also aligned with the Universal Declaration of Human Rights.

Article 14 of the Universal Declaration of Human Rights

According to Article 14 of the Universal Declaration of Human Rights, "Everyone has the right to seek and enjoy in other countries asylum from protection." Thus, this Article recognises the right of individuals to seek protection from the prosecution of the sovereign authorities. 

However, the Declaration simply recognises the right of asylum; it does not grant the right to receive asylum. Every person is allowed to seek asylum in another country. This right is also available for fugitives who have committed political crimes. However, if your crime is against the principles of the UN, then you do not have the right to asylum.

Types of Asylum

1. Territorial Asylum

Territorial asylum refers to the protection a country grants to individuals within its own borders. It is typically offered to people facing persecution for political reasons—such as those accused of treason, sedition, or dissent against their home governments.

However, there are exceptions. Territorial asylum is usually not granted to individuals involved in serious crimes like terrorism, war crimes, or the assassination of heads of state.

Example: Dalai Lama and India's Role

A well-known example of territorial asylum is India's decision to grant asylum to the 14th Dalai Lama and his followers. In 1959, due to China’s oppressive policies in Tibet, the Dalai Lama fled and sought refuge in India and since then Dalia Lama living in Dharamsala, HP. India welcomed him and offered political asylum, asserting its sovereign right under international law.

Although China accused India of interfering in its internal matters, India was well within its legal rights under the principles of territorial asylum to offer protection to those fleeing persecution.

Want to understand the legal foundations that make protections like asylum possible? Learn the difference between human rights, fundamental rights, and legal rights here.

2. Extra-territorial or Diplomatic Asylum

Extra-territorial or diplomatic asylum refers to the protection granted by a country to an individual outside its national borders—usually in places like embassies, consulates, or even public vessels. While the asylum is technically given within foreign territory, it takes place under the jurisdiction of the asylum-granting state.

Unlike territorial asylum, diplomatic asylum is not universally recognized under international law. Granting asylum within diplomatic premises often sparks tensions between states, as it can be seen as interference in internal affairs.

Example: József Cardinal Mindszenty Case

A famous example is the case of József Cardinal Mindszenty during the 1956 Hungarian uprising. He was targeted by Hungary's communist regime for refusing to secularize Roman Catholic schools. Arrested and persecuted, he sought refuge at the U.S. Embassy in Budapest.

The United States granted him asylum, and he remained in the embassy for nearly 15 years. This move stirred significant controversy and strained diplomatic relations, illustrating why diplomatic asylum remains a debated concept in international law.

3. Neutral Asylum

Neutral Asylum refers to the protection granted by a neutral country to individuals(usually political refugees or fugitives) from warring or politically unstable states. 

If two countries are in conflict or a person is being persecuted for political reasons, a third, neutral country (not involved in the conflict) can offer asylum to protect that person from harm. For example, if a political activist is fleeing persecution from their home country during a civil war and seeks refuge in a neutral country like Switzerland, that country may grant neutral asylum—not to support one side but to uphold humanitarian principles.

Asylum in India

India's Constitution does not explicitly mention asylum; however, the judiciary has interpreted certain rights to extend protections to refugees. Notably, the Supreme Court of India has held that Article 21, which guarantees the right to life and personal liberty, applies to all individuals, including non-citizens. This interpretation has been pivotal in providing a legal basis for asylum seekers' rights in India.

Chakma refugees from present-day Bangladesh began arriving in India in the early 1960s. In 2015, the Supreme Court of India directed the local government to offer citizenship to Chakma and Hajong evacuees.

India's International Obligations

Although India is not a signatory to the 1951 Refugee Convention or its 1967 Protocol, it has generally adhered to the principle of non-refoulement, which prohibits returning refugees to a country where they may face persecution. India's commitment to this principle is evident in its historical acceptance of large refugee populations, such as those from Tibet, Sri Lanka, and Bangladesh.

Challenges and the Need for Legislation

The absence of a formal asylum law in India leads to ad hoc and often inconsistent treatment of asylum seekers. Decisions are frequently made on a case-by-case basis, lacking transparency and uniformity. This situation underscores the need for comprehensive legislation to provide clear guidelines and protections for asylum seekers.

What is Extradition?

Extradition originates from the Latin words 'ex' (out) and 'tradium' (give up). It is based on the legal maxim "aut dedere aut judicare" (either extradite or prosecute).

Extradition refers to the legal process by which one country formally surrenders an individual to another country where that person is either accused or convicted of committing a crime.

Definitions by Renowned Jurists

According to Oppenheim, “Extradition is the delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed, or to have been convicted of, a crime, by the State on whose territory the alleged criminal happens to be for the time being.”

Similarly, Starke defines extradition as: “The process whereby, under a treaty or on the basis of reciprocity, one State surrenders to another State at its request a person accused or convicted of a criminal offense committed against the laws of the requesting State.”

Example of Extradition

Vijay Mallya, once the flamboyant face of Kingfisher Airlines, took loans worth over ₹9,000 crores from Indian banks and allegedly siphoned off the funds. As repayment deadlines approached, he fled to the UK in March 2016. India revoked his passport and sought his extradition. The UK initiated proceedings, and Mallya was arrested by Scotland Yard in April 2017. He was released on bail but remained under legal scrutiny.

After several hearings, the UK courts approved his extradition. While his return has faced procedural delays, recent rulings in the UK favour India—not just for extradition but also for attaching Mallya’s assets in the UK to recover bank dues.

Extradition Under International Law

In international law, extradition is largely governed by bilateral treaties between countries. By default, every sovereign State has the right to grant asylum to foreign individuals within its territory. However, this sovereign right may be restricted if there is a treaty obligation requiring the State to extradite certain individuals.

Is There a General Obligation to Extradite?

The answer is no—international law does not impose a universal or customary duty on States to extradite fugitives. This was affirmed in the U.S. case of Factor v. Laubenheimer, where the court observed that no international rule requires extradition unless a treaty exists between the requesting and requested States.

That said, extradition without a treaty is still possible. For example, India's own Extradition Act, 1962, allows for the extradition of fugitive criminals to foreign States or Commonwealth countries even in the absence of a formal extradition treaty (see Chapter III of the Act).

Purpose of Extradition

The main goal of extradition is to ensure that criminals can’t escape justice just by crossing borders. If someone commits a crime in one country and runs off to another to avoid prosecution or punishment, extradition allows the original country to request their return. This way, the person can be tried or serve their sentence where the crime was actually committed.

India has signed extradition treaties and arrangements with several countries. You can check the official list on the Ministry of External Affairs website: MEA | List of Extradition Treaties/Arrangements

Difference between Extradition and Expulsion

Although extradition and expulsion (or deportation) both involve removing someone from a country, they are completely different processes.

A key case highlighting this difference was Hans Muller of Nuremberg vs. Superintendent, Presidency Jail, Calcutta (1955). The Supreme Court ruled that the government has the right to reject an extradition request and can even opt for expulsion instead, if it finds it more appropriate.

Key Principles of Extradition Law

Here are two important rules that usually guide the extradition process:

1. Rule of Speciality

This principle says that if a person is extradited for a specific crime, they can only be tried for that crime—and not for any other offense committed before the extradition.

This rule was emphasized in the U.S. case of Rauscher (1886), which made it clear that countries can’t misuse extradition to try a person for unrelated or older crimes.

2. Double Criminality

This principle means that extradition can only happen if the act committed is considered a crime in both countries involved. For example, if someone commits murder in Bangladesh and escapes to India, they can be extradited—because murder is a crime in both nations.

3. Reciprocity

Extradition is based on mutual respect and benefits between the requesting and territorial states. For example, India may extradite a criminal to the U.S. with the understanding that the U.S. will return a wanted person to India in the future. 

This mutual give-and-take is called reciprocity — both countries help each other when needed.

4. Double Jeopardy

Extradition can not occur for offences that have already been tried and punished. Suppose, if someone is tried and found not guilty of theft in India, and the UK later asks to extradite them for the same crime, India won't agree. That's double jeopardy — no second trial for the same offence.

When Can India Refuse an Extradition Request?

(Restrictions on Surrender Under Indian Law)

Under Section 31 of the Extradition Act, 1962, there are certain situations where India can say “no” to an extradition request. Let's break them down:

1. If the crime is political in nature

India won’t extradite someone if the offence is of a political nature. In simple terms, if the person can convince the court or the Central Government that the extradition request is actually being used as a cover to punish them for a political offence, the request can be denied.

So, what exactly is a political offence? It usually involves acts against the state—like treason or rebellion—and must be done with a clear political motive or purpose.

Example:

In the famous Re Castioni case (1891), the Swiss government wanted a man named Castioni extradited for murder. But it turned out he was part of a political uprising, and the killing happened during a rebellion. The English court ruled it was a political offence, so no extradition.

On the other hand, in Re Meunier (1894), a man bombed a public place in Paris and ran to England. Since his act wasn’t driven by a purely political goal, the court said it wasn’t a political crime and refused to protect him under that exception.

A special note on the d’attentat clause:
This says that assassinating or attempting to assassinate a head of state or government will not count as a political crime. So if someone kills a Prime Minister or President, extradition can still go ahead.

2. If the case is time-barred

If the offence can no longer be prosecuted in the requesting country because the legal time limit has expired, then extradition can be refused.

3. If the other country won't follow the rule of speciality

India can refuse to send someone if the requesting country doesn’t guarantee that the person will only be tried for the crime mentioned in the extradition request—not for any unrelated offences committed earlier.

This is basically a safeguard to prevent misuse after extradition.

4. If the person is already facing charges or serving a sentence in India

If someone is already accused or convicted of a different offence in India, they won’t be handed over until that case is resolved or they finish their sentence.

5. If 15 days haven't passed since the court ordered their custody

A fugitive criminal cannot be extradited immediately after being taken into custody. There’s a minimum 15-day waiting period from the date the Magistrate commits the person to prison.

Real-Life Example: The Burmese Hijacking Case

In 1990, two Burmese students hijacked a Thai Airways plane and forced it to land in Kolkata. They weren’t doing it for money or personal gain—they were trying to draw attention to the fight for democracy in Burma. Their demands, written in blood, included ending military rule and freeing political prisoners.

India refused to hand them over to either Thailand or Burma, likely viewing the case through a political lens. However, the students were still prosecuted in India under the Anti-Hijacking Act, 1982, along with charges of criminal conspiracy.

Extradition Case Laws:

1. The Nadeem Saifi Case – Music, Murder & a Missed Extradition

Nadeem Saifi, a well-known music composer, was accused of being involved in the 1997 murder of music magnate Gulshan Kumar. But before Indian authorities could arrest him, he fled to the United Kingdom.

India invoked its 1992 extradition treaty with the UK and submitted a detailed chargesheet through the British Crown Prosecution Service. However, the UK court wasn’t convinced. It held that just filing a chargesheet wasn’t enough—India needed to provide strong supporting evidence that showed Nadeem’s prima facie involvement in the murder.

Since the evidentiary threshold wasn't met, the UK refused to extradite him. Nadeem remained in the UK and was never brought back to face trial.

2. The Abu Salem Case – From Portugal to the Courts of India

Abu Salem, a key accused in the 1993 Mumbai bomb blasts, was traced to Portugal. India formally sought his extradition, which led to a lengthy legal battle in Portuguese courts.

In January 2005, Portugal’s Supreme Court finally allowed his extradition—on the condition that he wouldn't face the death penalty. He was brought back to India to face trial. His partner, Monica Bedi, was also extradited but was later acquitted due to lack of evidence.

In 2022, Abu Salem was sentenced to life imprisonment in India. The assurance given to Portugal regarding the no-death-penalty condition was honoured.

Also, read how an Extradition request is made. 

The Difference Between Asylum and Extradition Under International Law

Asylum vs Extradition: Key Differences in Granting & Denial Explained

Author's Remark- Asylum and Extradition

So, can Aloo be sent back or stay safely in Country B? Well, it all depends on why Aloo ran and what he did.

If he’s a fugitive who committed a serious criminal offence like fraud or murder, extradition laws may apply—and Country B might be legally or diplomatically bound to send him back. But if Aloo is fleeing genuine persecution due to his political beliefs, religion, or ethnicity, and fears for his life or freedom, he could be protected under asylum.

Ultimately, it’s a legal tug-of-war between justice and human rights—between the demand to punish and the duty to protect. And this is why international cooperation, clear treaties, and strong domestic laws matter so much.