Can India Deny Dhaka's Request To Extradite Sheikh Hasina? What Rules Say

After Sheikh Hasina, Bangladesh's ousted prime minister, was sentenced to death in absentia for "crimes against humanity", the interim government in Dhaka urged India to immediately extradite the deposed leader. Hasina has been living in exile in India since she fled Bangladesh on August 5 last year in the face of a student-led uprising that ended her 15-year iron-fisted rule. 

Hasina, along with her former home minister Asaduzzaman Khan Kamal, who is also believed to be in India, was earlier declared a fugitive by the court. 

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Charges Against Hasina

Hasina was convicted on five charges of crimes against humanity and was sentenced to prison until natural death for making inflammatory remarks and ordering the extermination of student protesters through the use of helicopters, drones, and lethal weapons.

She was handed the death penalty on charges of shooting and killing six protesters in Dhaka's Chankharpul area on August 5 last year.

Chief prosecutor Tajul Islam said Hasina was "the nucleus around whom all the crimes (were) committed" during the uprising.

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Hasina's Reaction

Hasina said the charges were unjustified, arguing that she and Khan "acted in good faith and were trying to minimise the loss of life."

"We lost control of the situation, but to characterise what happened as a premeditated assault on citizens is simply to misread the facts," she said Monday in a statement denouncing a verdict she called "biased and politically motivated."

Her Awami League party called for a national shutdown on Tuesday to protest the verdict.

Hasina, 78, cannot appeal the verdict unless she surrenders or is arrested within 30 days of the judgement.

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Bangladesh's Request

"We urge the Indian government to immediately hand over these two convicted individuals to the Bangladeshi authorities," Bangladesh's Foreign Ministry said in a statement.

It said the existing bilateral extradition agreement between Bangladesh and India marks the transfer of the two convicts as a compulsory responsibility for New Delhi.

The ministry also said that granting shelter to individuals convicted of crimes against humanity would be considered an "unfriendly" act and a disregard for justice.

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India's Response

India reacted to the Dhaka court's verdict against Hasina and assured Bangladesh it will engage constructively with all stakeholders, considering peace, democracy and stability in the neighbouring country. The Ministry of External Affairs (MEA) said India remains committed to the best interests of the people of Bangladesh, but it did not comment on Dhaka's call to extradite Hasina.

"India has noted the verdict announced by the 'International Crimes Tribunal of Bangladesh' concerning former prime minister Sheikh Hasina," the ministry said. 

"As a close neighbour, India remains committed to the best interests of the people of Bangladesh, including peace, democracy, inclusion and stability in that country. We will always engage constructively with all stakeholders to that end," it added.

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Will India Extradite Hasina?

Although extradition requests are generally honoured in good faith, it is highly unlikely that New Delhi will extradite Hasina. Both Indian law and the bilateral treaty give India significant discretion, especially in cases when the request could be ruled politically motivated or unjust.

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What Does The India-Bangladesh Extradition Treaty Say?

In 2013, New Delhi and Dhaka signed an extradition treaty as a strategic measure to address insurgency and terrorism along their shared borders. Three years later, in 2016, the treaty was amended to ease the exchange of fugitives wanted by both nations. However, a key requirement for extradition under the treaty is the principle of dual criminality, meaning that the offence must be punishable in both countries. 

Though Hasina's conviction meets the minimum procedural condition for extradition, the clause gives Delhi some room to deny extradition on the grounds that the charges against her don't fit within the template of India's domestic law.

Moreover, Article 8 of the treaty says an extradition request could be refused if the accused was able to prove the move was "unjust or oppressive".

It can be done if the accused can prove that the offence is trivial, too much time has passed, the accusation lacks good faith, the offence is purely military in nature, or the person has been convicted earlier but was not sentenced. Under the clause, New Delhi could potentially refuse Hasina's extradition on grounds that the charges against her have not been levelled in good faith and there is a possibility of her being subjected to political persecution.

Article 6 of the treaty also stipulates that extradition may be refused if the offence is of a "political nature". However, the treaty specifies that serious crimes like murder, terrorism, kidnapping, or offences under multilateral anti-crime treaties cannot be classified as political. 

As most of the charges against Hasina -- from murder, enforced disappearance, and torture -- fall outside the scope of this exemption, it is unlikely that Delhi will use the clause to justify these accusations as political transgressions. 

Another basis for refusal is outlined in Article 7, which says extradition can be denied if India can prosecute the accused instead. 

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India's Extradition Act

The Extradition Act, 1962, also empowers the Indian government to deny extradition, stay proceedings, or discharge the person sought, depending on the circumstances.

Section 29 of the Act clarifies that India can reject an extradition request if it appears trivial or not made in good faith, if it is politically motivated or if the extradition is not in the interest of justice.

The law also empowers the Centre to stay proceedings "at any time", cancel warrants, or discharge the individual sought.