UPSC Law Optional 2026 PYQ: Paper I Q5(c) – Is the Right to Asylum a Fundamental Right?

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This UPSC Law Optional PYQ 2026 tests one of the most frequently asked International Law topics: asylum.

UPSC CSE Mains 2026 · Law Optional Paper I · Section B · Q5(c) · 10 marks

"What is 'asylum'? Is 'Right to Asylum' a fundamental right of a person in other country to save from prosecution? Explain."

Source: exam held 30 August 2026. Official paper (UPSC) | Full 2026 Paper I & II

What this question tests

The question has two parts. First, a clear definition of asylum. Second, a judgement: is there a right to asylum that an individual can claim, and does it protect someone facing prosecution (not only persecution)? Strong answers notice that wording. Article 14 of the Universal Declaration of Human Rights speaks of asylum from persecution and excludes prosecutions genuinely arising from non-political crimes. The examiner is checking whether you spot that difference.

Syllabus unit

Paper I, Section B: International Law, in the unit on nationality, asylum and human rights (alongside extradition and refugees). In 2026 this cluster was one of the heaviest in Section B. Q7(c) on nationality and Q8(c) on human rights came from it too.

How to approach it (about 150 words)

Define asylum and name its two forms: territorial and diplomatic.
Legal position: what international instruments say. Article 14 UDHR, the 1967 UN Declaration on Territorial Asylum, the 1951 Refugee Convention and non-refoulement. Consider whether any of these creates a binding individual right or leaves the grant to the State.
Case law: the ICJ's Asylum Case (Colombia v. Peru), 1950, on diplomatic asylum.
Prosecution vs persecution: link back to the exact wording of the question.
Conclusion: a one-line answer to "is it a fundamental right?", with a short note on India's position.

Common mistakes

Treating asylum and extradition as the same thing.
Ignoring the word "prosecution" in the question.
Listing instruments without saying whether they are binding.

Practice it now

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Model answer

UPSC Law Optional Paper 1 | Question 5(c) | 10 Marks.

Answer: Asylum as a Right of the State, Not of the Individual

Introduction : Asylum is the protection or refuge granted by a State, on its territory or in premises under its control, to a person who comes to seek it. Asylum and extradition are closely linked: asylum stops where extradition begins. In international law the right of asylum belongs to the State as an incident of its territorial sovereignty; the individual has no right to receive it. Asylum is therefore not a fundamental right of a person in a foreign State, and it does not shield him from prosecution for ordinary crimes.
Kinds of Asylum
Territorial asylum is granted by a State within its own territory. It is an exercise of territorial sovereignty, and its grant is not an unfriendly act towards the State of origin. The Caracas Convention on Territorial Asylum, 1954 recognises that every State has the right, in the exercise of its sovereignty, to admit into its territory such persons as it deems advisable, without giving rise to complaint by any other State. An asylum seeker is a person whose claim has not yet been finally determined; every refugee is initially an asylum seeker, and recognition declares rather than creates refugee status.
Extra-territorial or diplomatic asylum is granted within the premises of an embassy, legation or warship situated in another State. Here the refugee is within the territory of the State where the offence was committed, so the grant derogates from that State's sovereignty. The Vienna Convention on Diplomatic Relations, 1961 makes mission premises inviolable but does not recognise a right of diplomatic asylum, and Article 41(1) obliges diplomats not to interfere in the internal affairs of the receiving State. Diplomatic asylum is thus exceptional: it rests on treaty, as among Latin American States under the Caracas Convention on Diplomatic Asylum, 1954, on a binding local custom, or, as writers suggest, on urgent humanitarian grounds where the refugee's life is in imminent danger.
Position in International Law
In the Asylum Case (Colombia v. Peru), I.C.J. Reports 1950, p. 266, Colombia had given diplomatic asylum in its embassy at Lima to Haya de la Torre, a Peruvian political leader accused of military rebellion, and claimed the right to qualify the offence unilaterally and to a safe-conduct. The Court rejected both claims. Diplomatic asylum involves a derogation from the sovereignty of the territorial State, and such a derogation cannot be recognised unless its legal basis is established in each particular case. Colombia had not proved a constant and uniform usage binding on Peru, which had not ratified the Montevideo Conventions of 1933 and 1939. In Haya de la Torre (Colombia v. Peru), Judgment of 13 June 1951, I.C.J. Reports 1951, p. 71, the Court held that the asylum, having been irregularly granted, must cease, but that Colombia was under no obligation to bring this about by surrendering him to Peru; the manner of ending it was left to the parties, guided by courtesy and good-neighbourliness.
Article 14(1) of the Universal Declaration of Human Rights, 1948 recognises the right of everyone to seek and to enjoy in other countries asylum from persecution; it does not speak of a right to be granted asylum, and as a declaration it does not bind States. Article 14(2) excludes prosecutions genuinely arising from non-political crimes or acts contrary to the purposes and principles of the United Nations. The UN Declaration on Territorial Asylum, 1967 leaves the evaluation of the grounds for a grant to the granting State.
The 1951 Refugee Convention and its 1967 Protocol create no right to asylum either. Their core is Article 33, non-refoulement: a refugee shall not be returned to territories where his life or freedom would be threatened. Article 33(2) withdraws that protection from a refugee who is a danger to the security of the country, or who, having been convicted of a particularly serious crime, is a danger to its community. Article 1F excludes from refugee status any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime outside the country of refuge prior to his admission, or acts contrary to the purposes and principles of the United Nations.
Position in India
India is not a party to the 1951 Convention or the 1967 Protocol and has no refugee statute; UNHCR conducts refugee status determination in New Delhi for asylum seekers from certain countries. Section 31(1)(a) of the Extradition Act, 1962 bars surrender for an offence of a political character. In Hans Muller of Nurenburg v. Superintendent, Presidency Jail, AIR 1955 SC 367, the Constitution Bench held that the Foreigners Act, 1946 confers an unfettered discretion on the Union to expel foreigners. Louis De Raedt v. Union of India, (1991) 3 SCC 554, held that a foreigner's fundamental right is confined to Article 21 and does not include the right to reside and settle, which Article 19(1)(e) gives only to citizens.
Article 21, however, protects every person. In NHRC v. State of Arunachal Pradesh, (1996) 1 SCC 742, Chakma refugees faced threats of forcible eviction. The Court held that the State must protect the life and liberty of every human being, citizen or not, and the Chakmas could not be evicted except in accordance with law. In Mohammad Salimullah v. Union of India (I.A. No. 38048 of 2021 in W.P.(C) No. 793 of 2017, order dated 8 April 2021), Rohingya detainees sought a stay of deportation relying on non-refoulement. The Court refused interim relief, holding that "the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e)", but directed that deportation follow the prescribed procedure.
Recent Developments (2025)
On 31 July 2025, in the batch led by Jaffar Ullah v. Union of India, W.P.(C) No. 859 of 2013, with which Mohammad Salimullah is tagged, a Bench of Surya Kant, Dipankar Datta and N. Kotiswar Singh JJ. recorded the issues broadly raised: whether the Rohingyas are entitled to be declared refugees and, if so, to what protection; if they are illegal entrants, whether their deportation is justified, whether they may be detained indefinitely or released on bail, and whether the Union and the States are obliged to deport them in accordance with law; and whether those in camps receive basic amenities consistent with Article 21.
Internationally, in its Advisory Opinion on the Obligations of States in respect of Climate Change (23 July 2025, para 378), the International Court of Justice stated that, in the view of the Court, States have obligations under the principle of non-refoulement where there are substantial grounds for believing that return would expose individuals to a real risk of irreparable harm to the right to life under Article 6 of the ICCPR. The Immigration and Foreigners Act, 2025, in force from 1 September 2025, repeals the Foreigners Act, 1946 and allied laws, but still provides no asylum procedure.
Critical Evaluation : Sovereign Discretion with Humanitarian Limits
The position protects sovereignty and security, but it leaves the asylum seeker without a legal claim. In the absence of a statute, protection in India varies from group to group, and treating the right not to be deported as part of Article 19(1)(e) narrows the reach of Article 21.
Yet the limits are sound in principle. Article 14(2) of the UDHR, Article 1F of the Convention and the political offence exception ensure that asylum does not become a refuge from ordinary prosecution. The ICJ's reading of non-refoulement as a duty grounded in the right to life shows the obligation widening, while the grant of asylum itself remains a sovereign choice.
Conclusion : India could enact a refugee law that retains the State's discretion to grant asylum but lays down a fair procedure for determining status, recognises non-refoulement subject to security exceptions, and excludes persons accused of serious non-political crimes. The pending Rohingya batch gives the Supreme Court the occasion to settle these standards under Article 21, read with the respect for international law that Article 51(c) enjoins.