If Dhaka wants Delhi to extradite Hasina

Ever since Sheikh Hasina, the former prime minister of Bangladesh facing mass protests at home, resigned, fled, and taken refuge in India, the demands for her extradition have been doing the rounds.

This demand took concrete legal shape when the chief prosecutor of Bangladesh's International Crimes Tribunal (ICT), which was re-established in 2010 by the Sheikh Hasina government, said that the legal process to bring Hasina back to Bangladesh had started.

Complaints have been filed against Hasina under the ICT for committing genocide and crimes against humanity. Hasina has also been slapped with several other cases for a variety of crimes ranging from murder and torture to enforced disappearance. In this regard, if and when Bangladesh (the requesting State) makes a formal request to India (the requested State) to extradite Hasina, what are New Delhi's legal options?

Apart from India's Extradition Act of 1962, the pivotal legal instrument in the current case is the India-Bangladesh Extradition Treaty signed by the Sheikh Hasina government in 2013. Section 12(2) of the 1962 Extradition Act extends the relevant parts of India's extradition law to Bangladesh.

Bangladesh may rely on the 2013 treaty to request Hasina's extradition. Article 1 of the treaty obligates Bangladesh and India to extradite not just those individuals in their territories who have been found guilty of committing an extraditable offence (an offence punishable under the Indian and Bangladeshi laws by at least a one-year jail term) in the other country's territories. But it also extends to those individuals who have been charged with committing crimes. Thus, Hasina can be extradited even if she is yet to be proven guilty in the Bangladeshi courts. Charging her of these crimes is sufficient to trigger the process of her extradition from India.

Moreover, under Article 10(3) of the India-Bangladesh Extradition Treaty, to seek extradition, it is sufficient for the requesting State to produce a warrant of arrest issued by a competent authority. There is no need to share the evidence of the crime committed with the requested State. It is critical to note that this is due to an amendment made to the treaty in 2016. The original treaty required the requesting State to share the evidence along with the arrest warrant with the requested State. The requirement to share the evidence of the offence was done away with in 2016 to expedite the extradition of the accused.

Thus, India is under a legal obligation to extradite Sheikh Hasina if Bangladesh makes such a request. However, the India-Bangladesh Extradition Treaty mentions certain exceptions to extraditing an individual. First, Article 6 provides that extradition may be refused if the offence is of a political character (the political exception). Section 31(1) of the 1962 Extradition Act also provides for this political exception. So, can India rely on these provisions to deny Hasina's extradition? The answer is no because Article 6(2) of the treaty specifically excludes crimes like murder and other crimes that international law recognises such as genocide and crimes against humanity from political offences.

Second, Article 7 allows the requested State to refuse the extradition request if that person would be tried in its courts for the extradition offence. This provision too will not apply to Hasina because there is nothing to show that she will face trial in Indian courts.

Third, 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". The same principle is reflected in Section 29 of the 1962 Extradition Act. This provision may apply to Hasina's case. Given the circumstances in which she was unseated from power and the fact that her political opponents are running affairs in Bangladesh and baying for her blood, it can be argued that the charges levelled against her are influenced by vendetta and political hostility. If she is returned to Bangladesh, arguably, there is a high risk of her not getting a fair trial. Thus, her extradition will be oppressive and unjust. This interpretation may not be acceptable to the Bangladeshi side who would claim that holding Hasina to account for her autocratic rule is in the interest of justice. The India-Bangladesh Extradition Treaty does not provide for any binding adjudicatory mechanism. Thus, both sides can stick to their legal interpretations of Article 8(1)(a)(iii), without any dispute settlement body deciding whose interpretation is correct.

India has another legal option, which will be an extreme one. Article 21(3) of the treaty empowers India to terminate this treaty at any time by giving a notice. The treaty shall cease to have effect six months after the date of the notice. There is nothing in the treaty which says that extradition requests received before the termination will have to be processed by the requested State after the treaty ceases to exist. Whether India will exercise this option would depend on how much India values Hasina, who has been a friend of New Delhi. While New Delhi would like to stand with Hasina, unilaterally terminating the treaty might sour its relations with Dhaka, which India can ill-afford for a variety of strategic and diplomatic relations.

At the end of the day, the call on Hasina's extradition is about politics, not so much about law. But whatever decision India takes, it should dexterously employ international law language to serve its political needs and justify its decision.