Can Sheikh Hasina be extradited to Bangladesh from India?

Can Sheikh Hasina be extradited to Bangladesh?

That’s the question people are asking after Muhammad Yunus, the leader of Bangladesh’s interim government, said she should ‘keep quiet’ until the country wants her back.

Hasina fled to India on August 5 after resigning as Bangladesh’s prime minister.

“No one is comfortable with her stance there in India because we want her back to try her. She is there in India and at times she is talking, which is problematic. Had she been quiet, we would have forgotten it; people would have also forgotten it as she would have been in her own world. But sitting in India, she is speaking and giving instructions. No one likes it,” he said.

“It is not good for us or for India. There is discomfort regarding it,” he added.

Yunus was apparently referring to Hasina’s statement on August 13 in which she demanded “justice”, saying those involved in recent “terror acts”, killings and vandalism must be investigated, identified and punished.

Thus far that is the only statement made by Hasina. It was put up on the X handle of her son Sajeeb Wazed Joy.

Bangladesh’s Hindu minority population has seen their businesses and properties vandalised and their temples destroyed during the student-led violence that erupted following the ouster of Hasina.

But can the former Bangladesh prime minister be extradited?

Let’s take a closer look:

Can Hasina be extradited?

As per The Conversation, Bangladesh could request her extradition.

The two countries signed an extradition treaty in 2013. That treaty was later changed in 2016 to make the process simpler.

According to Indian Express, the treaty states that the two nations are supposed to extradite individuals “who have been proceeded against… or have been charged with or have been found guilty of, or are wanted for… committing an extraditable offence” by a court of the requesting country.

The piece noted that at the time, two of the convicts in the 1975 assassination of Hasina’s father Sheikh Mujibur Rahman were in hiding in India.

The Hasina government had wanted both men extradited so it could execute them.

According to Indian Express, the treaty states that the two nations are supposed to extradite individuals “who have been proceeded against… or have been charged with or have been found guilty of, or are wanted for… committing an extraditable offence” by a court of the requesting country.

It also calls for extradition to be granted if there is an “attempt to commit or aiding, abetting, inciting or participating as an accomplice in the commission of an extraditable offence.”

The treaty allows for extradition for people charged with crimes in which the punishment is a minimum of one year in prison, as per The Conversation.

The offence must be punishable in both India and Bangladesh.

“The accusations against Hasina are prosecutable in India, and the punishments for her alleged crimes are also substantial, so she can be extradited on these grounds,” the piece noted.

Extradition is extremely easy under Article 10 of the treaty.

Article 10 says an arrest warrant from a court will suffice for extradition to be carried out and that no proof is required against the offender.

However, it’s not that simple.

As per Indian Express, the treaty has a provision which states that extradition can be denied if the offences are “political in nature”.

Such offences are also defined expansively to include murder, manslaughter or culpable homicide; assault; causing of an explosion; the making or possession of an explosive substance or weapons by a person intending to endanger life; the use of a firearm with intent to resist or prevent arrest; damaging property with intent to endanger life; kidnapping or taking of a hostage; incitement to murder; and any other offence related to terrorism.

Another twist is that though Hasin can claim political asylum, some of the crimes she has been charged with including enforced disappearance, and torture are not covered by the provision.

So will India have to send Hasina back?

Again, not necessarily.

The newspaper quoted Article 7 of the treaty as stating that “the request for extradition may be refused by the Requested State if the person whose extradition is sought may be tried for the extradition offence in the courts of that State.”

This is not applicable in Hasina’s case.

It also quoted Article 8 as laying out grounds to refuse extradition including in which an accusation has not been “made in good faith in the interests of justice” or for military offences which are not “an offence under the general criminal law.”

What has India said?

India has not publicly commented on the issue.

Hindustan Times quoted External Affairs ministry spokesperson Randhir Jaiswal as saying this was in the “realm of hypothetical issues.”

“As we stated earlier, the former prime minister of Bangladesh came to India at very short notice for reasons of safety. We have nothing further to add on that matter,” Jaiswal added.

Experts say India will take its own interests into consideration before acting.

“Do our critical interests lie in handing over Hasina to Bangladesh? They don’t. The legalese of the treaty does not matter. There are lawyers on both sides,” a former Research and Analysis Wing (RAW) officer, who has dealt closely with Bangladesh, told Indian Express.

The officer said a “balancing act” is not needed.

“There are enough interests in Bangladesh who would want to have good relations with India. The Awami League has not been finished. It has deep roots. It will rise again. There is an administration and a military that values Bangladesh’s relations with India. So, we have a critical mass that favours good relations… Then there are geographic realities. Bangladesh is surrounded by India. There are enough structural linkages between the two countries. The last word has not yet been written on the direction of these relations,” he added.

A former diplomat also added his voice.

“First of all, this is an interim government. Its statements should not bother India much. It is a regular government that India will look to engage with in the long term and thus pay heed to. Also, as of now, only FIRs have been filed. The case will have to be investigated, chargesheeted, and then the court will take cognisance following which the extradition process will start. A lot of water would have flown down the Teesta by then,” he told the newspaper.

“Beyond diplomacy, having a treaty means its legal provisions have to be satisfied. Then there are multiple examples of relations between two countries being healthy despite pending extradition requests,” he added.

This isn’t the first time Bangladesh has made such statements about Hasina’s extradition.

Bangladesh’s foreign affairs advisor Mohammed Touhid Hossain, in August told Reuters TV that the country could ask India to extradite Hasina “since there are so many cases” against her

“Her staying in Delhi, in India, the question comes that…there are so many cases (against Sheikh Hasina) that could be… again some speculating, I am not a person right to answer this, if there is a request from there (Ministry of Home and Ministry of Law) we have to ask for her, you know, return to Bangladesh,” he said.

Hossain said if there is a demand from Bangladesh, that creates an embarrassing situation for the Indian government. “So I think the Indian government knows this and I am sure they will take care of it.”

Hossein added that Yunus is “very unhappy” about Hasina’s statements.

“So whatever actually is there, unless there are some, there are some secret points could be there. Otherwise, we want to make things public. And we have - I have just told him about the displeasure of the chief adviser and let us hope that they take care of it.”

With inputs from agencies