'Major exception in treaty': Why India is not bound to extradite Sheikh Hasina

After Sheikh Hasina's conviction, Bangladesh's foreign office on Monday sought the former prime minister's immediate extradition from India. While the Yunus-led interim government insists it's India's "obligatory duty" under the bilateral treaty, former Indian High Commissioner to Bangladesh Pinak Ranjan Chakravarty says the legal grounds are far from clear.

India, he explains, is under no immediate obligation to hand over the ousted Bangladeshi leader, given that the treaty includes a major exception for political offences. "The current government in Dhaka will now say she (Hasina) has been convicted, now hand her over. Handing her over on extradition is a legal process. So, they will have to go through the legality, which means going to court in India, filing extradition charges, and getting an order from a court. If an Indian court orders it, then of course the government of India will comply," Chakravarty said while speaking to news agency ANI.

He said Bangladesh would need to follow due process before India could act. "I don't think that has happened yet. So we'll have to wait and see what they do. And of course, the fact that she has been in India is not new. She's been in India since last August, when she was overthrown, and they were demanding even at that time to hand her over. We said no, you go through the extradition process. She was not a convicted criminal when she came here. It was they who drove her out, and they brought her here. We did not do anything to invite her here to come and take refuge. She decided and we agreed," he added.

When asked if India was legally bound to hand over Hasina after the tribunal's verdict, Chakravarty said, "No...not yet." He explained that extradition is a legal process that can only move forward after Bangladesh files a formal request through the courts.

"There has to be a formal Bangladesh government, which is an interim government, and many regard it as unconstitutional. So, whether they will file an extradition request with the Indian government, because there is a provision in the bilateral extradition treaty. However, there is a very, very major exception in the treaty, which is regarding political crimes or political kind of charges that are brought, and everybody knows that these are political charges and the verdict is also kind of part of the vendetta politics," he said.

Exception in the treaty

As per Article 6 of the treaty signed in 2013, "extradition may be refused if the offence of which it is requested is an offence of a political character". The treaty, however, also states what does not constitute political character and those are: any acts or omissions which are punishable as a criminal offence according to the obligations under multilateral treaties to which both Contracting States are Party; murder; and manslaughter or culpable homicide.

Article 8 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 by reason of: (i) the trivial nature of the offence of which he is accused or was convicted; or (ii) the passage of time since he is alleged to have committed it or to have become unlawfully at large; or (iii) the accusation against him not having been made in good faith in the interests of justice.

'It was all fixed'

Chakravarty also questioned the fairness of the trial, describing it as "fixed." "It was all fixed because the judiciary itself was overhauled, and all the Supreme Court judges were, in fact, asked to resign at gunpoint. A new judiciary was created under the same old ICT, but the judges were changed, and then this whole trial took place. How free and fair the trial was, everybody's asking the same question. After all, who defended her? She's being accused and convicted of murdering somebody somewhere. She's the prime minister. She didn't go and murder anybody. But they are blaming her for having ordered that to the police and others," he said.

On Bangladesh's political future, Chakravarty said that for any upcoming election to be credible, the Awami League must be allowed to participate. "If they want elections to be regarded as free, fair and inclusive, then they will have to allow the Awami League to participate. You cannot have a free and fair election or an inclusive election in Bangladesh by banning the largest party, the Awami League. Now you may give Hasina the death sentence, but the party remains. They have suspended their registration as a political party; if they do that, then the elections are a foregone conclusion. Then there is nothing free, fair, and inclusive about it."

Earlier on Monday, Bangladesh's International Crimes Tribunal sentenced Hasina to death for "crimes against humanity" over her government's crackdown on student-led protests last year. The verdict described her as the "mastermind and principal architect" of the violence that killed hundreds of protesters.