E-Paper
Why Delhi can refuse to extradite Sheikh Hasina
Authoritarian rulers should be held accountable. But, under no circumstances should the principles of due process and human rights be compromised in doing so
The death penalty handed down by Bangladesh’s International Crimes Tribunals (ICT) to the ousted Prime Minister (PM) Sheikh Hasina, who is in India, for perpetrating crimes against humanity, has kicked up a storm. Ironically, Hasina revived the ICT in 2010, allowing in absentia trials, which the Mohammad Yunus regime weaponised against her. While Hasina’s sympathisers have denounced the verdict, calling the entire process reminiscent of a kangaroo court, the ruling has left India in a diplomatic predicament. It has revived the debate on Hasina’s extradition from India to Bangladesh.
The propensity to bring politics into discussions about Sheikh Hasina is inescapable. However, the problem arises when foreign policy commentators selectively employ the law to validate their political positions, leading to partisan analysis. Thus, it is imperative to dispassionately segregate the legal wheat from the political chaff and address conspicuous misconceptions. First, some argue that under the 2013 India-Bangladesh extradition treaty, any extradition request must be accompanied by evidence of the crime committed. This is not correct. While the original text of the treaty, in Article 10(3), included this requirement, along with other provisions such as the sharing of arrest warrants, the 2016 amendment removed it. Article 10(3) of the India-Bangladesh Extradition Treaty now requires only an arrest warrant and evidence that the person requested for extradition is indeed the person for whom the arrest warrant has been issued. This amendment, enacted when Sheikh Hasina was the Bangladeshi PM, aimed to expedite the processing of extradition requests. Ironically, Hasina has been at the receiving end of the same amendment when Bangladesh formally requested India to extradite her in December 2024, based on arrest warrants issued against her.
Today, this provision does not apply to Hasina’s case as she has already been convicted. Bangladesh will need to submit a new extradition request to India. The relevant provision for this is Article 10(4) of the treaty, which applies to a person who is already convicted or sentenced. This article mandates two conditions for a convicted person to be extradited: First, a certificate of conviction or sentence must be provided; and second, the person must not be able to challenge the conviction or sentence. Since Sheikh Hasina can challenge the ICT’s verdict, a request for her extradition may not be made under Article 10(4) until she has exhausted all her legal remedies under Bangladeshi law.
Another key misconception concerns the political exception to extradition requests. Article 6 (1) of the India-Bangladesh Extradition Treaty states that an extradition request may be refused if an offence is of a political character. This has led many to argue that India can refuse Bangladesh’s extradition request because Hasina is charged with political offences. This, again, is incorrect. Article 6(2) of the treaty categorically states that certain criminal offences, such as murder, are not political offences. Since Hasina has been accused and convicted of crimes against humanity, her case does not fall under the political exception.
So, is there any other provision in the Extradition Treaty that India can rely on if it wishes to refuse Bangladesh’s request for extradition? The answer is yes. Article 8(1)(a)(iii) of the treaty states that a person may not be extradited if “he satisfies the requested State that it would, having regard to all the circumstances, be unjust or oppressive to extradite him” because “the accusation against him” has not been made “in good faith in the interests of justice”. This provision may apply to Hasina’s case. Given the circumstances in which the trial against Hasina proceeded and the manner in which ICT convicted her, without following necessary procedural safeguards, it demonstrates deep-rooted vendetta and political animosity. Thus, her conviction is not in good faith and does not serve the interests of justice.
Another argument being advanced by some is that the interim government of Mohammad Yunus is unelected and thus illegitimate. Accordingly, an illegitimate government has no mandate to oversee a trial of this nature. While one may question the procedural and substantive fairness of the ICT’s trial against Hasina, the unelected nature of the interim government, by itself, does not render the trial or the sentence invalid under international law. Yunus’s regime is the de facto government of Bangladesh, with which most countries, including India, maintain diplomatic relations. While it lacks democratic legitimacy, Yunus’s regime effectively controls Bangladesh. Thus, it is a legal government under international law.
Finally, what about the chatter on the International Criminal Court (ICC)? Hasina has repeatedly challenged the Yunus regime to refer the case to the ICC at The Hague. But this isn’t as straightforward as some may think. Conceptually, the ICC does not replace or displace the jurisdiction of domestic courts. It functions on the principle of complementarity, firmly enunciated in the Rome Statute, the founding treaty of the ICC. The initial responsibility and the right to prosecute international crimes is of national courts. The ICC has secondary jurisdiction.
In Hasina’s case, since Bangladesh’s ICT was already seized of the matter, the ICC could not have heard it. Only if the domestic court is unable or unwilling to hold the perpetrators of international crimes accountable can the doors to the Hague be opened. One ground for establishing unwillingness of the domestic court is if the proceedings are not conducted independently or impartially. In Hasina’s case, it can be argued that the ICT’s proceedings were neither impartial nor independent; therefore, the matter is admissible to the ICC, subject to other conditions being satisfied.
Authoritarian rulers should be held accountable for their abuses. But, under no circumstances should the principles of due process and human rights be compromised in doing so. In navigating the Hasina conundrum, India should be guided by its national interests, the rule of law, and its moral compass.
Prabhash Ranjan is professor and vice dean (research), Jindal Global Law School, O P Jindal Global University. The views expressed are personal
