The Chief Prosecutor of Bangladesh’s International Crimes Tribunal (ICT) has announced plans to seek the extradition of ousted leader Sheikh Hasina from India.
- The tribunal was established in 2010 by the former Bangladesh Prime Minister to investigate crimes committed during the 1971 independence war from Pakistan.
Background
- Refuge in India: Ms. Sheikh Hasina sought refuge in India in early August following a mass uprising that forced her resignation.
International Crimes Tribunal (Bangladesh)
- Establishment: The International Crimes Tribunal (ICT) of Bangladesh was established in 2009 as a domestic war crimes tribunal.
- Objective: The tribunal was created to investigate and prosecute those responsible for atrocities during the 1971 Bangladesh Liberation War in which Bangladesh fought for independence from Pakistan.
- Focus of Prosecution: The ICT investigates crimes committed during the 1971 genocide by the Pakistan Army and their local Collaborators like Razakars, Al-Badr, and Al-Shams.
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- Criminal Charges: Since her departure, several criminal cases have been filed against Ms. Hasina and her aides. The charges include: Murder,Torture ,Abduction, Crimes against humanity and Genocide.
- Diplomatic Passport Revoked: The new interim government in Dhaka has revoked Ms. Hasina’s diplomatic passport.
- Bilateral Extradition Treaty Exists: Additionally, India and Bangladesh have a bilateral extradition treaty in place that could allow for her return to face trial.
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Extradition Treaty between India and Bangladesh
- About Extradition: Extradition is the formal process by which one country requests and obtains the surrender of an individual from another country to face criminal charges or serve a sentence for a crime committed within the requesting country’s jurisdiction.
- Difference between Extradition and Asylum: The process of returning the convict or accused to the nation he escaped from is called extradition. Whereas, Asylum is when a country gives protection to individuals who are being prosecuted by another country.
- Extradition Treaty (2013): India and Bangladesh signed an extradition treaty in 2013 to tackle issues of insurgency and terrorism along their shared borders.
- Amendment (2016): The treaty was amended in 2016 to simplify the process of exchanging fugitives wanted by both nations, facilitating smoother extraditions.
- Legal Justification for Extradition: The extradition of Ms. Hasina is deemed critical to ensure the fairness of her trial under the International Crimes (Tribunals) Act, 1973, and for enforcing judicial orders.
- Extradition Precedents:The treaty has already facilitated notable extraditions, including:
- Sheikh Mujibur Rahman Assassination Case (2020): Two convicts involved in the 1975 assassination of Sheikh Mujibur Rahman were extradited to Bangladesh for execution.
- Anup Chetia (ULFA Leader): India secured the extradition of Anup Chetia, general secretary of banned United Liberation Front of Assam (ULFA), after 18 years of imprisonment in Dhaka.
- Extradition Criteria:
- Minimum Sentence Requirement: The treaty mandates the extradition of individuals charged with or convicted of crimes that carry a minimum sentence of one year’s imprisonment.
- Dual Criminality Principle: Extradition requires that the offence be punishable in both India and Bangladesh.
- Since the charges against Ms. Hasina are prosecutable in India and carry substantial penalties, she qualifies for extradition.
- Scope of Offences: The treaty covers not only direct criminal acts but also attempts to commit crimes, as well as aiding, abetting, inciting, or acting as an accomplice.
- 2016 Amendment to the Extradition Treaty:
- Lowered Evidence Requirement: The 2016 amendment removed the need to provide concrete evidence against the offender for extradition.
- Arrest Warrant Sufficient: Under Article 10 of the treaty, an arrest warrant from a competent court in the requesting country is enough to initiate the extradition process.
- Political Nature of the Offence (Article 6)
- Exemption for Political Offences: Extradition may be refused if the offence is of a “political nature.”
- Limitations on Political Exemption: Crimes such as murder, terrorism-related offences, and kidnapping are excluded from being classified as political.
- Ms. Hasina’s Charges: Charges like murder, enforced disappearance, and torture fall outside the political offence exemption, making it unlikely for India to refuse extradition on these grounds.
- Lack of Good Faith or Justice (Article 8): Extradition can be denied if the request is not made in good faith or is not in the interests of justice.
- Military Offences Exemption: Refusal is possible if the offence is a military one not recognized under general criminal law.
- Potential Political Persecution: India may argue that Ms. Hasina could face political persecution or an unfair trial, especially in light of reports of Cabinet ministers being mistreated while under arrest in Bangladesh.
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Diplomatic and Political Implications of the Impending Extradition
- No Guarantee of Extradition: The treaty does not guarantee Ms. Hasina’s extradition, as the final decision will depend on diplomatic negotiations and political factors.
- Diplomatic Relations Impact: Some of the experts argue that even if India declines the extradition request, it would likely be a minor political irritant and would not significantly damage bilateral relations.
- Bilateral Trade: Bangladesh is India’s largest trade partner in South Asia, with bilateral trade reaching $15.9 billion in the fiscal year 2022-23.
- Comprehensive Economic Partnership Agreement (CEPA): Prior to Ms. Hasina’s ouster, both nations were preparing to begin discussions on a CEPA to further strengthen economic ties.
- Post-Regime Change Support by India: After the regime change in Dhaka, Indian Prime Minister Narendra Modi spoke with the new interim government’s Chief Adviser, Muhammad Yunus, pledging continued support for ongoing development projects.
- Post-Regime Change Support by India: After the regime change in Dhaka, Indian Prime Minister Narendra Modi spoke with the new interim government’s Chief Adviser, Muhammad Yunus, pledging continued support for ongoing development projects.
India and Extradition Treaties
- India has extradition treaties with numerous countries. These Extradition treaties are governed by the Indian Extradition Act of 1962.
- Indian Extradition Act of 1962:
- The Indian Extradition Act of 1962 is a comprehensive law that governs the extradition of fugitive criminals between India and other countries.
- It extends to the whole of India.
- The Act also covers composite offences, which are acts that occur partly in India and partly in a foreign state but constitute an extradition offence when considered as a whole.
- Principles of Extradition
- Offences Covered: Extradition applies only to offences specified in the treaty.
- Dual Criminality: The offence must be recognized as a crime in both the requesting and requested countries.
- Prima Facie Case: The requested country must be convinced that a prima facie case exists against the accused.
- Specific Offence: Extradition is granted only for the offence for which it was requested.
- Fair Trial Guarantee: The accused must be ensured a fair trial.
- About Extradition Treaty (Section 2(d), Indian Extradition Act 1962): An ‘Extradition Treaty’ is a treaty, agreement, or arrangement between India and a foreign state for extradition fugitive criminals.
- Binding Nature: Such treaties are binding on both India and the foreign state involved.
- Nodal Authority: This division of the Ministry of External Affairs administers the Extradition Act and processes extradition requests (both incoming and outgoing).
- Types of Cases: Extradition can be initiated for under-investigation, under-trial, and convicted criminals.
- Precautions for Investigation Cases: In cases under investigation, law enforcement must ensure they have prima facie evidence to substantiate the allegations in the foreign court.
- Current Extradition Treaties:
- As of September, 2024, India has extradition treaties (A formal, legally binding agreement between countries) with 48 countries, including the USA, UK, UAE, Canada, and Australia.
- Additionally, India has extradition arrangements (A less formal understanding between two countries, often used when there is no existing treaty) with 12 other countries, such as Armenia, Fiji, Sri Lanka and Singapore.
- Landmark Extradition Cases:
- Savarkar Case: In 1910, Vinayak Damodar Savarkar was being brought to India from Britain for his trial on a charge of treason and murder. He escaped from British custody in France but was mistakenly recaptured by a French policeman without proper legal procedures. France asked Britain to return him for a formal extradition, but Britain refused. The court acknowledged the mistake but dismissed France’s request due to a lack of clear international law.
- Vijay Mallaya’s Case: Vijay Mallya owed over ₹6,000 crores to Indian banks, fled to the UK in 2016 to avoid arrest. India sought his extradition, which was approved by a UK court in 2018, but legal delays have prevented his return. In 2019, he was declared a ‘Fugitive Economic Offender.’
- Nirav Modi Case: In 2018, Nirav Modi was accused of defrauding Punjab National Bank of ₹11,400 crores and fled to the UK. After an extradition request from India, a UK court ordered his extradition in 2021, following Interpol’s Red Corner Notice.
- Re Castioni’s case: In 1891, England refused to extradite a murderer who had fled from Switzerland, ruling that the crime was politically motivated. Thus, England was not required to extradite him.
- Re Meunier’s case: In 1894, England initially refused to extradite a fugitive who had fled from Paris after a bombing. However, the court later ordered England to proceed with the extradition because the crime was not politically motivated.
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September 19, 2024
