India's Legal Shield: Why Hasina Extradition Faces Constitutional Hurdles

While briefing on the details of Monday’s proceedings, legal advisor to the interim government, Asif Nazrul, told the media that his administration will send another letter to India for the extradition of Sheikh Hasina to this country.

However, “Section 31 of the Extradition Act, 1962, read with Articles 1, 6, and 8 of the India-Bangladesh Extradition Treaty (2013, amended 2016), provides India with substantial legal grounds to decline Bangladesh's extradition request,” said Aaditya Bhatt of Ahmedabad-based Bhatt and Joshi Associates.

“While Article 1 establishes a general obligation to extradite for crimes punishable by at least one year imprisonment in both jurisdictions, this obligation is not absolute and is subject to critical exceptions embedded in the treaty framework itself,” observed the advocate.

Meanwhile, in a written statement, Hasina has rejected the allegations of crimes against humanity tied to the 2024 crackdown on student-led protests by her administration and said that she never ordered the security forces to fire on protesters. She has called the sentencing in Bangladesh’s International Crime Tribunal (ICT) “biased and politically motivated”.

The ICT, established in 2010 under the International Crimes (Tribunals) Act of 1973, was originally designed to prosecute genocide, war crimes, and crimes against humanity from the 1971 Liberation War. Over time, the 1973 Act has been amended, with several sections added and removed. According to it, if a person is found guilty, there is a provision for the death penalty as the maximum punishment.

Former home minister Kamal, who, like Hasina, is also in exile in India, has also reiterated that the ICT is “invalid and unconstitutional”. According to Bhatt, the “hasty tribunal proceedings”, trial in absentia, absence of independent legal representation, and death sentence imposed following a regime change create credible concerns regarding fair trial guarantees and judicial independence.

“Article 8 permits refusal if the request is not made "in good faith in the interests of justice" or if the accused would be subjected to torture, cruel treatment, or a trial falling below international standards as contemplated by the International Covenant on Civil and Political Rights,” he stated.

“The prosecution of a former head of government within 15 months of ouster, coupled with the interim administration's explicit characterisation of accountability as integral to its political mandate, warrants scrutiny as to whether the underlying motivation is justice or political retribution,” added Bhatt.

The legal expert also observed that these considerations are not mere legal technicalities but reflect international human rights jurisprudence established in precedents such as Soering v. UK, which mandates refusal when there is a real risk of flagrant denial of justice.

Additionally, “India's constitutional jurisprudence, grounded in Article 21 of the Constitution, is applicable to all ‘persons’ including foreign nationals,” he cited, adding that it mandates that deprivation of liberty occur only through fair procedure.

“Indian courts have consistently held that individuals facing extradition retain Constitutional protections requiring independent judicial scrutiny of whether the foreign proceedings meet fundamental standards of fairness – a threshold the Bangladesh proceedings appear not to satisfy given the political context, procedural deficiencies, and proportionality concerns surrounding capital punishment,” he observed.

Meanwhile, tensions ran high in Bangladesh with the capital, Dhaka, reportedly under a heavy layer of security amidst fears of mass unrest.

Hasina, Bangladesh’s longest-serving Prime Minister, was ousted in August 2024 after months of student-led protests against corruption, authoritarianism, and economic mismanagement. The protests escalated into violent clashes, with hundreds reportedly killed.

- IANS