Sheikh Hasina death verdict: What India-Bangladesh extradition treaty says

Bangladesh's interim government has urged India to extradite Sheikh Hasina after a tribunal sentenced her to death, raising questions over what the 2013 treaty permits and when India can refuse

Bangladesh's interim government has urged India to immediately extradite ousted prime minister Sheikh Hasina and her former home minister Asaduzzaman Khan Kamal, after a tribunal court passed a death sentence for the duo, accusing them of "crimes against humanity".

 

In a statement, Bangladesh's Foreign Ministry said the existing bilateral extradition agreement between Bangladesh and India marks the transfer of the two convicts as a "compulsory responsibility for New Delhi". It further added that "granting shelter to individuals convicted of crimes against humanity would be considered an unfriendly act and a disregard for justice".

What does the India-Bangladesh extradition treaty say?

India and Bangladesh signed an extradition treaty in 2013 to strengthen cooperation in combating crime and terrorism by establishing a system for the reciprocal extradition of offenders. 

 

According to the treaty, an offence qualifies for extradition if it is punishable by at least one year of imprisonment in both India and Bangladesh. This includes not only major crimes like murder, terrorism-related acts, kidnapping, and violent offences, but also financial or revenue offences. Aiding, abetting or participating as an accomplice also qualifies.

 

Either of the countries can request extradition when a person accused, charged or convicted of a crime flees to the other country and is found there. Extradition is sought to bring the offender back for trial or enforce a sentence they escaped from.

When can extradition be denied?

The treaty also lists several circumstances under which an extradition can be denied. According to Article 6 (1), extradition can be refused for political offences.

 

However, Article 6 (2) clarifies that serious crimes like murder, terrorism, kidnapping, violent acts, incitement to murder, and firearm offences are not considered political. 

 

Notably, Hasina has been charged for murder, attempted murder, torture and other cruel acts.

 

However, Article 8 states that extradition can also be refused if the person can show that the offence is too minor to justify such a serious step, too much time has passed since the alleged act or escape from justice, or the charges were made in bad faith and not for genuine legal reasons. Extradition may also be denied if the offence is purely military in nature and not considered a crime under normal civilian law. These safeguards exist to ensure extradition is not used unfairly or for the wrong reasons.

What does India’s Extradition Act (1962) say?

Apart from the bilateral treaty, India has its independent Extradition Act of 1962. This Act consolidates and amends the law relating to the extradition of fugitive criminals, and also applies to those taking refuge in the country.

 

Articles 29 and 31, which closely resemble the circumstances in the treaty, outline certain conditions under which extradition can be refused. Here are the key restrictions:

• Extradition is barred if the offence is political or the request is made to punish the person for a political offence.
• Extradition cannot proceed if the case is time-barred in the requesting country.
• The requesting state must guarantee the fugitive will be tried only for the extradition offence, a lesser related offence, or one approved by India.
• A fugitive cannot be surrendered if they are already facing charges or serving a sentence in India until their case or sentence is completed.

What about India's courts?

Notably, the Indian Constitution’s fundamental rights bolster this protective approach. Article 21 of the Constitution guarantees that “no person shall be deprived of his life or personal liberty except according to procedure established by law".

 

The Supreme Court has also held that this right to life and liberty extends to foreign nationals on Indian soil and embodies principles of human dignity and humanitarian law. Indian courts have read Article 21 in harmony with international norms, finding that government action that would expose a person to death or torture abroad can violate Article 21 unless proper legal process and safeguards are ensured.

 

In the landmark case Ktaer Abbas Habib Al Qutaifi vs Union of India (1998), two Iraqi asylum-seekers facing draconian punishment in Iraq obtained protection from deportation. The Gujarat High Court underscored that “the principle of non-refoulement, enshrined in [international law] and reflected in Article 21 of the Constitution, prohibits returning refugees to places where their lives or freedom would be at risk". 

 

Although India is not a party to the 1951 Refugee Convention, the principle is considered part of customary international law and is echoed in treaties like the International Covenant on Civil and Political Rights (ICCPR), to which India is a party.

What has been India's response to Bangladesh's request?

While the Ministry of External Affairs (MEA) has noted the Bangladesh court's verdict, it did not discuss Hasina's extradition. In a statement released on Monday, the MEA said, "As a close neighbour, India remains committed to the best interests of the people of Bangladesh, including in peace, democracy, inclusion and stability in that country. We will always engage constructively with all stakeholders to that end."