India is not legally bound to extradite Sheikh Hasina to Bangladesh. Here’s why

On Monday (November 17), Bangladesh’s International Crimes Tribunal (ICT) sentenced former Prime Minister Sheikh Hasina to death for perpetrating ‘crimes against humanity’. It’s a significant moment for the country — this is the first time that Dhaka has sentenced its leader to the gallows.

But the sentencing of Hasina has also posed a diplomatic quandary for India where the ousted PM is residing since fleeing Dhaka last year following the students’ uprising. In fact, shortly after the verdict was delivered in court, Bangladesh’s interim government made an extradition request to India, with the Bangladesh Ministry of Foreign Affairs saying in a statement, “If any country gives shelter to these individuals convicted of crimes against humanity, it will be an extremely intolerant act and a disregard for justice.”

So, what options does India have? Will it extradite Hasina to Dhaka? We explore and get you the answers.

A death sentence and an extradition request

On Monday, the ICT delivered the death sentence to Sheikh Hasina and Asaduzzaman Khan Kamal, Bangladesh’s former home minister, after nearly five months of hearings. Both Hasina and Kamal were tried in absentia, as they had been living in exile. Hasina escaped to New Delhi after she had been ousted from office after 15 years in power in Bangladesh.

ICT’s Judge Golam Mortuza Mozumder told the crowded courtroom that she had been found guilty on three counts and that the court had decided to impose a single punishment which was the sentence of death.

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Following the verdict, Bangladesh’s Foreign Ministry noted in a statement, “We urge the Indian government to immediately hand over these two convicted individuals to the Bangladeshi authorities.”

It added that the bilateral extradition treaty 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.

India’s reaction to Hasina’s verdict

India remained non-committal to Bangladesh’s extradition request, saying it remains committed to the best interests of the people of the neighbouring country. In a statement, the Ministry of External Affairs noted in a statement, “India has noted the verdict announced by the ICT concerning former Prime Minister Sheikh Hasina.

“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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The statement reflects India’s uncertainty on extraditing Hasina, who has been “an honoured guest” since last August. New Delhi has old ties with the ousted leader and it seems unlikely that it would follow through with Dhaka’s request.

In fact, Veena Sikri, who served as India’s High Commissioner to Bangladesh from 2003 to 2006, was quoted as telling The Hindu, “Let us be clear that so far India has not received a single formal extradition request. A press statement is not a formal request - the process for an extradition is very complex and legal.
As a “first step”, she said, a formal request would have to include the ICT’s Monday order along with all the evidence provided, explaining the legitimacy of the court itself and the trial process details as well.

The Hindu further reported that once the request is received, the government will have to assess it against its obligations under the 2013 agreement signed by then-Home Minister Sushil Kumar Shinde during a visit to Dhaka.

The India-Bangladesh treaty in question

The Hasina verdict has shone a spotlight on the India-Bangladesh extradition treaty, which was agreed upon 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.

However, the 2013 extradition has several exceptions the government could use to defend its grant of refuge to Hasina.

Article 6 of the treaty stipulates that extradition may be refused if the offence is of a “political nature”. With Hasina ousted by a political uprising and replaced by a Yunus-led interim administration, there are grounds to argue that the accusations, trial, and verdict are inseparable from Bangladesh’s political situation.

There’s also Article 8, which sets out more than six other grounds for the refusal of an extradition request and says that if the accused “satisfies” the requested state (in this case, India) that the charges are “unjust or oppressive” or “not made in good faith in the interests of justice”, the extradition may be denied.

The grounds covered by Article 8 are:
>> The offence is trivial
>> Too much time has elapsed
>> The accusation lacks good faith
>> The offence is purely military in nature
>> The person has been convicted earlier but was not sentenced

Speaking on the same, south Asian analyst, Michael Kugelman noted on X, “The India-Bangladesh extradition treaty’s political exemption clause relates to political offences, not political personalities. Not easy to argue crimes against humanity is a political offence. So Delhi would likely argue the entire case was political.”

Many experts also point to Articles 1 and 2 of the treaty that speaks on dual criminality. What this means is that for the extradition request to be considered valid the offence must be punishable under the domestic laws of both countries.

Hasina has been found guilty of ‘crimes against humanity’ in Bangladesh. However, India interprets this crime differently. This opens a possibility for India to turn down the extradition.

And if India refuses Hasina’s extradition to Bangladesh, its stance is strengthened by the fact that the ICT’s verdict has been questioned by international organisations such as the United Nations Office of the High Commissioner for Human Rights (UNHRC), Human Rights Watch and Amnesty International.

The UNHRC said that her sentencing for crimes against humanity marked an important moment for the victims but added that she should not have been sentenced to death. Meanwhile, Human Rights Watch said that “while Indian authorities should support accountability efforts in Bangladesh, any extradition request should allow for the individuals who sought to contest the extradition in legal proceedings in India that meets due process standards. No one should be extradited if they would face a trial abroad that does not meet international fair trial standards and could result in the death penalty”.

Additionally, Amnesty International South Asia stated that the “trial and the sentencing of Sheikh Hasina was neither fair nor just”, while maintaining that “those responsible for crimes against humanity” in 2024 should be prosecuted. “The victims of July 2024 deserve far better. Bangladesh needs a justice process that is scrupulously fair and fully impartial beyond all suspicion of bias and does not resort to order further human rights violations through the death penalty. Only then can genuine and meaningful truth, justice and reparations be delivered,” it added.

India’s other options in the Hasina matter

New Delhi has other options too if it chooses to reject Dhaka’s extradition request on Hasina.

While it has no official refugee policy, it does have a history of providing shelter to those who request it. For instance, the Dalai Lama was granted refuge in India in 1959. It has also granted refuge to Sri Lankan Tamils in the ’80s, to Afghans fleeing the Taliban in 1996, and the Rohingyas from Myanmar in 2010.

Now, it’s a wait and watch game to see what happens next.

With inputs from agencies