Sheikh Hasina Wazed, an elected Prime Minister of Bangladesh legally arrived in India in August 2024 after being forced to resign her post in wake of violent demonstrations against her government and refusal of the Bangladesh Armed Forces to contain these violent demonstrations. Since her arrival in India on and off reports kept emanating from Bangladesh that Bangladesh ad hoc Administration will seek her extradition to Bangladesh. Now it was reported on 18th October 2024 in Indian media that the Bangladesh International Crimes Tribunal issued an arrest warrant on 17th October to produce her before the Tribunal on 18th November 2024. Now the extradition proceedings in India will commence after a letter rogatory issued by a competent Criminal Court of Bangladesh is handed over by the Bangladesh High Commission in New Delhi to the Ministry of External Affairs along with supporting documents. So far no such letter rogatory appears to have been delivered by the Bangladesh High Commission.
There are such provisions stipulated in the Extradition Treaty 2013 between India and Bangladesh that may make it too difficult for the Bangladesh Government to get Sheikh Hasina extradited from India.
The very first question after receipt of the letter rogatory before the Government of India will be whether an unelected ad hoc administration can seek extradition of a person who was a democratically elected Prime Minister of Bangladesh. Generally democracies do not allow such extraditions on request of unelected administrations.
Secondly, Articles 2(1) and 2(3) of the Extradition Treaty stipulate the principle of dual criminality i.e. an offence for which extradition is sought should also be an offence under Indian laws in eyes of Indian criminal court which will examine the letter rogatory transmitted by the Ministry of External Affairs, and Indian court will adjudicate only after giving fair hearing to Sheikh Hasina side. In India no Prime Minister has so far been charged of murder of persons killed during firings by Indian Police to control mobs. So the first burden of the Bangladesh side will be to prove dual criminality before the Indian court.
Thirdly, the Article 6 of the Extradition Treaty reads: “The Political Offence Exception 1. Extradition may be refused if the offence of which it is requested is an offence of a political character.” So it will be the duty of the Government of India under this Article 6 first to determine (after receipt of proper letter rogatory) whether the offences leveled against Sheikh Hasina are of political character, and, if so, the Government of India may refuse extradition of Sheikh Hasina, and not transmit letter rogatory to a criminal Court in India.
Fourthly, the Article 8 of the Extradition Treaty reads: “Refusal of Extradition 1. A person may not be extradited if: (a) he satisfies the Requested State that it would, having regard to all the circumstances, be unjust or oppressive to extradite him by reason of : …………(iii) the accusation against him not having been made in good faith in the interests of justice; ” So the Government of India may refuse extradition under this Article if Sheikh Hasina places these arguments before the Government of India to the satisfaction of the Government of India.
As Sheikh Hasina’s status is a “legally arrived foreigner on the Indian soil”, her fundamental rights of life and liberty on the Indian soil are protected under the Article 21 of the Constitution of India as per many Indian Supreme Court case laws. Therefore she has the option as well as legal right to move an Indian Court to get these rights enforced. This will be another hurdle in her extradition.
Furthermore, it will be in long term political and diplomatic interest of India to stand with those political leaders of neighbouring countries who were/are not habitually hostile to India. Extradition request will give an opportunity to the Modi Government to mediate between the Sheikh Hasina side and her political opponents in Bangladesh for an amicable settlement of issues so that Bangladesh keeps marching on her economic progress under an elected government.
(Writer is a retired Indian Ambassador and views expressed are his personal views. He handled extradition matters also in the MEA as Director/Joint Secretary during 1988-91)
By AMBASSADOR OP GUPTA (RETD)
(The content of this article reflects the views of writers and contributors, not necessarily those of the publisher and editor. All disputes are subject to the exclusive jurisdiction of competent courts and forums in Delhi/New Delhi only)
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