India rejecting U.S. whistleblower Edward Snowden’s request for asylum is more of a political decision, which is not justiciable, according to Mohan Katarki, Supreme Court lawyer and international law expert.
“Grant of asylum is governed by the principle of non-refoulement. It is a principle of customary rules of international law which forbids a country from returning a victim of persecution to a persecutor. This principle is honoured by a nation by setting its own procedure… A nation may insist on physical presence or assure asylum as and when the asylum-seeker enters the nation,” he said.
“The U.N. convention of 1951 and protocol of 1967 have codified the law for grant of refugee status to victims of persecution. There is no requirement in international law that a person seeking asylum remain in the country. Anyone can seek asylum on the other’s behalf, and it is the discretion of the country to grant or reject asylum.”
India was not a party to the U.N. convention of 1951 or protocol of 1967. “But India respects the principle of non-refoulement and has granted asylum to a number of persons from Afghanistan, Sri Lanka and Myanmar. To deal with asylum applications, there is no legal framework in India,” Mr. Katarki said.
Senior advocate K.V. Viswanathan said even if India acceded to Mr. Snowden’s plea, it would have to extradite him once the U.S. made a formal request based on the extradition treaty which the two countries brought into force on July 21, 1999.
However, “India does not have a definite legal framework now for granting asylum to aliens; granting asylum is India’s prerogative based on its international policy. Under the general principles of public international law, granting asylum is the prerogative of the requested state...
“Nations that have ratified the International Convention on Refugees of 1951 and the protocol of 1967 are obligated to provide asylum on the principle of non-refoulement. According to this principle, a refugee should not be returned to a country where he or she faces serious threats to his or her life or freedom. However, this protection may not be claimed by refugees who are reasonably regarded as a danger to the security of the country, or who are convicted of a particularly serious crime, or considered a danger to the community.”
