Context: The Dhaka-based International Crimes Tribunal on October 17 issued arrest warrants for Ms. Sheikh Hasina (former Prime Minister of Bangladesh) and 45 others including former Cabinet ministers, advisers and military and civil officials. Bangladesh has recently formally requested India to extradite the former Prime Minister.
Relevance of the Topic: Prelims: Key aspects of India Bangladesh Extradition Treaty.
Background:
- After leaving Dhaka on August 5, 2024, Ms. Hasina was declared an absconder for not surrendering. A first information report was filed on August 13, 2024, against her and other former associates.
- She has been charged with conspiracy to eliminate the students involved in protests, and the mistreatment and killing of hundreds of the protesters, which are labelled as genocide and crimes against humanity.
- Subsequently, on December 23, 2024, Bangladesh formally requested India to extradite former Prime Minister Sheikh Hasina, who fled to New Delhi amid anti-government protests in August 2024.
Legal Framework
- Bangladesh's legal system allows for trials in absentia, but there are complexities regarding International law and Common law jurisdictions as accused must be present in Court (physical or virtual) for the trial.
- India has not yet commented on the extradition request. India has a bilateral extradition treaty with Bangladesh but is not obligated to extradite Hasina due to claims of political offenses.
- India's Supreme Court in National Human Rights Commission vs State Of Arunachal Pradesh & Anr. (1996) has ruled that non-citizens are entitled to protection of Article 21 under the Constitution, which could influence decisions regarding Hasina's extradition.
Options before India
- House Arrest: India can place Hasina under house arrest while allowing her participation in her trial via video conferencing, ensuring cooperation with Bangladesh's investigation.
- ICC Jurisdiction: ICC jurisdiction can be invoked due to the nature of the alleged crimes. However, since Bangladesh is pursuing domestic legal action, ICC intervention may not be necessary unless there are concerns about the fairness of the proceedings.
- Refuse extradition: India can refuse extradition, citing lack of “good faith” or “interest of justice” and related concerns. Article 8 lists out multiple grounds for refusal including cases in which, an accusation has not been made in good faith in the interests of justice or in case of military offences which are not an offence under the general criminal law.
Way Forward for India
- Maintain diplomatic engagement with the new government in Bangladesh.
- Avoid hasty decisions to ensure long-term strategic and economic ties with Bangladesh.
- Stand by Sheikh Hasina without openly antagonising the interim government.
- Leverage the structural linkages with the party in power as well as association and geographic realities to sustain favorable relations.
Ultimately, the decision to extradite is going to be political and diplomatic and not legal.
India Bangladesh Extradition Treaty
- Establishment: Signed in 2013 and amended in 2016 for faster and easier extradition of fugitives between the two countries.
- Background:
- India sought the treaty to address insurgents from the North-East operating from Bangladesh.
- Bangladesh aimed to address the presence of groups like Jamaat-ul-Mujahideen Bangladesh (JMB) in India.
- India extradited Anup Chetia, a United Liberation Front of Assam (ULFA) leader, in 2015.
Provisions of the Treaty:
- Extraditable Offences:
- Crimes carrying a minimum punishment of one year imprisonment, including financial crimes.
- Offences must fulfill the principle of dual criminality (punishable in both countries).
- Includes attempts, aiding, abetting, inciting, or participating in the commission of an extraditable offence.
- Exceptions:
- Extradition can be refused if the offence is of a political nature.
- However, the treaty specifies a long list of offences not considered political, including:
- Murder, culpable homicide, assault, explosions, use of firearms, property damage intending to endanger life, kidnapping, hostage-taking, incitement to murder, and terrorism-related offences.
- Amendment in 2016 to Simplify Extradition Process
- Requirement to provide evidence of the offence was removed; only an arrest warrant from a competent court is now required.
- Since Sheikh Hasina faces multiple arrest warrants issued in Bangladesh, it makes her case eligible under the amended treaty.
Key Principles:
- Both countries commit to extraditing individuals wanted by courts for criminal charges, prosecution, or conviction in the requesting country.
- The treaty intends to enhance cooperation in combating terrorism and transnational crime.