India And Bangladesh: Extradition Treaty

What is context?

• The chief prosecutor of Bangladesh’s International Crimes Tribunal (ICT) has announced plans to seek the extradition of ousted leader Sheikh Hasina from neighbouring India.
• Hasina had sought refuge in India in August after a mass uprising compelled her to step down.
• Since her departure, numerous criminal cases have been lodged against her and her aides, encompassing charges of murder, torture, abduction, crimes against humanity, and genocide.

The ICT

• was established in 2010 by Ms. Hasina to investigate crimes committed during the 1971 independence war from Pakistan.
• Under the International Crimes (Tribunals) Act of 1973, Bangladeshi courts can proceed with criminal trials even in Ms. Hasina’s absence.

About the Extradition treaty:

• In 2013, India and Bangladesh signed an extradition treaty as a strategic measure to address insurgency and terrorism along their shared borders.
• It was amended in 2016 to ease the process of exchange of fugitives wanted by both nations.
• The treaty mandates the extradition of individuals charged with or convicted of crimes that warrant a minimum sentence of one year’s imprisonment.
• A key requirement for extradition is the principle of dual criminality, meaning that the offence must be punishable in both countries.
• Since the charges against Ms. Hasina are prosecutable in India, and the penalties for her alleged crimes are also substantial, she qualifies for extradition on these grounds.
• Additionally, the treaty encompasses within its ambit attempts to commit, as well as aid, abet, incite, or act as an accomplice in such crimes.
• Notably, the 2016 amendment to the treaty substantially lowered the threshold for extradition by removing the requirement to furnish concrete evidence against the offender.

• Under Article 10 of the treaty, only an arrest warrant issued by a competent court in the requesting country is sufficient to initiate the extradition process.
• The treaty has facilitated the transfer of several notable political prisoners. For instance, in 2020, two convicts involved in the 1975 assassination of Ms. Hasina’s father, Sheikh Mujibur Rahman, were extradited to Bangladesh for execution.
• Similarly, India successfully secured the extradition of Anup Chetia, the general secretary of the banned United Liberation Front of Assam (ULFA), who had spent 18 years imprisoned in Dhaka

Can extradition be refused?

• Article 6: of the treaty stipulates that extradition may be refused if the offence is of a “political nature”.
• However, there are stringent limitations on this particular exemption.
• A host of offences such as murder, terrorism-related crimes, and kidnapping, are explicitly excluded from being classified as political.
• Given that several of the charges against Ms. Hasina —such as murder and enforced disappearance— fall outside the scope of this exemption, it is unlikely that India will be able to justify them as political transgressions to deny extradition.
• Article 8: Article 8 permits denial of a request if the accusation is not “made in good faith in the interests of justice” or if it involves military offences not considered “an offence under general criminal law.”

What are the potential implications?

• That the treaty does not guarantee Ms. Hassina’s extradition, as the final decision will hinge more on diplomatic negotiations and political considerations.
• “Even if India were to decline the extradition request, it would likely serve as a minor political irritant rather and is unlikely to dent bilateral relations, especially in critical areas of cooperation between the two nations.
• Bangladesh is India’s largest trade partner in South Asia, with bilateral trade estimated at $15.9 billion in the fiscal year 2022-23.

Nodal Ministry:

• The Ministry of External Affairs is the Nodal Ministry for extradition matters and for the implementation of the Extradition Act, 1962 which regulates extradition of fugitive criminals from India.
• Generally any offence which is punishable with an imprisonment of one year or a more severe penalty is an extraditable offence.
• Fugitives can be extradited pursuant to a bilateral extradition treaty or arrangement or an applicable international convention.
• Till date, India has signed extradition treaties with 50 countries and has extradition arrangements with 12 countries.

India has signed Extradition Treaties with the following Countries:

1. Australia 2. Netherlands 3. Bahrain 4. Oman 5. Bangladesh 6. Philippines 7. Belarus 8. Poland 9. Portugal 10. Bhutan 11. Republic of Korea 12. Brazil 13. Russia 14. Bulgaria 15. Saudi Arabia 16. Canada 17. South Africa 18. Chile 19. Spain 20. Egypt 21. Switzerland 22. France 23. Tajikistan 24. Germany 25. Thailand 26. Hong Kong 27. Tunisia 28. Indonesia 29. Turkey 30. Kuwait 31. UAE 32. Malaysia 33. UK 34. Mauritius 35. Ukraine 36. Mexico 37. USA 38. Mongolia 39. Uzbekistan 40. Nepal 41. Vietnam, 42. Belgium

India has Extradition Arrangements with the following Countries:

1. Croatia 2. Fiji 3. Italy 4. Papua New Guinea 5. Peru 6. Sri Lanka 7. Singapore 8. Sweden 9. Tanzania

Transfer of Sentenced Persons (TSP)

• India has signed Agreement on Transfer of Sentenced Persons (TSP) with 31 countries.
• Under the provisions of TSP, Indian prisoners lodged in foreign countries can be transferred to India to serve the remainder of their sentence and vice-versa.

Countries with which India has signed the Agreements on Transfer of Sentenced Persons are:

• Australia, Bahrain, Bangladesh, Bosnia & Herzegovina, Brazil, Bulgaria, Cambodia, Egypt, Estonia, France, Hong Kong, Iran, Israel, Italy, Kazakhstan, Korea, Kuwait, Maldives, Mauritius, Mongolia, Qatar, Russia, Saudi Arabia, Somalia, Spain, Sri Lanka, Thailand, Turkey, United Arab Emirates (UAE), United Kingdom and Vietnam.
• India has also signed two multilateral conventions on transfer of sentenced persons, namely:

1. Inter-American Convention on Serving Criminal Sentences Abroad and
2. Council of Europe Convention on Transfer of Sentenced Persons, by virtue of which sentenced persons of member States and other countries which have acceded to these conventions can seek transfer to their native countries to serve the remainder of their sentence.
3. The Extradition Arrangements with Italy and Croatia confine to Crimes related to Illicit Traffic in Narcotics Drugs and Psychotropic Substances owing to the fact that India, Italy and Croatia are parties to the 1988 UN Convention against Illicit Traffic in Narcotics Drugs and Psychotropic Substances