New Delhi: With Dhaka linking the proposed visit of Prime Minister Tarique Rahman to New Delhi with a “propitious environment” and the expedition of the extradition of its former prime minister Sheikh Hasina from India, the Awami League leader is back in the spotlight.
Politics and dynamics of the relationship aside, the million-dollar question is the legality of such a move, and what laws or treaties—domestic, bilateral and international—would govern such an undertaking.
This diplomatic pressure comes against the backdrop of Hasina’s conviction. In November 2025, Bangladesh’s International Crimes Tribunal sentenced her to death in absentia for crimes against humanity, particularly for her role in the violent suppression of the 2024 student quota protest.
The tribunal found her guilty of abetment, conspiracy and complicity in mass killings.
Legal framework
Extradition law in the case of Hasina is anchored in a three‑layered framework: the India–Bangladesh Extradition Treaty of 2013 (notified in 2016), India’s domestic Extradition Act 1962, and the UN Model Law on Extradition of 2004.
The treaty sets out bilateral obligations and exceptions, the Indian Act provides statutory safeguards against politically motivated or capital punishment requests, and the UN Model Law establishes international human rights standards. Together, these instruments ensure that extradition decisions balance bilateral treaty commitments, Indian statutory protections, and global UN safeguards.
The India-Bangladesh Extradition Treaty provides the legal foundation for handling extradition requests between the two countries. In the current context of Hasina’s conviction and Bangladesh’s demand for her extradition, this treaty becomes the central instrument to assess India’s obligations and safeguards.
The treaty obliges both states to extradite persons accused or convicted of extradition offences. It establishes the duty to surrender fugitives found guilty of extradition offences in the territory of the other contracting party. This includes financial, taxation, and banking offences, ensuring that extradition is not limited to violent crimes alone.
Political offence exception
The most critical provision for Hasina’s case is the political offence exception clause covered under Article 6 of the treaty, which states, “Extradition may be refused if the offence of which it is requested is an offence of a political character.”
The treaty, however, narrows this exception by explicitly excluding certain crimes from being considered political. These include: murder and genocide, serious bodily harm using weapons or explosives, kidnapping and terrorism-related offences.
These provision has been covered under both the India–Bangladesh Extradition Treaty and Indian Extradition Act as each provides that extradition may be refused if the offence for which surrender is sought is of a political nature.
Bangladesh frames Hasina’s conviction as crimes against humanity, which under the treaty would not qualify as a political offence.
Under Section 31 of the Act, India cannot extradite a fugitive if the offence is of a political character or if the request is motivated by political persecution
This protection is further reinforced by the UN Model Law on Extradition, which also recognises political offences as grounds for refusal, and prohibits extradition requests motivated by political opinion.
This distinction is crucial in Hasina’s case, where Bangladesh frames her actions as crimes against humanity, while her supporters argue they are politically motivated charges.
Right to prosecute
Under Section 31 of the Act, New Delhi may refuse extradition if the request is unjust, not made in good faith, or politically driven. This discretionary power ensures India does not become complicit in political vendettas.
Article 7 of the treaty states, “Where the Requested State refuses a request for extradition for the reason set out in this Article, (refusal by requested state), it shall submit the case to its competent authorities so that prosecution may be considered. Those authorities shall take their decision in the same manner as in the case of any offence of a serious nature under the law of that State.”
Therefore, it also provides that if extradition is refused, the requested state must consider prosecuting the fugitive domestically. This principle ensures accountability and prevents impunity. For example, if a fugitive accused of terrorism in Bangladesh cannot be extradited due to political concerns, India may still prosecute them under its own laws. This provision strengthens bilateral cooperation without compromising fairness.
This principle mirrors Section 34A of the Act, which reads, “Where the Central Government is of the opinion that a fugitive criminal cannot be surrendered or returned pursuant to a request for extradition from a foreign State, it may, as it thinks fit, take steps to prosecute such fugitive criminal in India.”
The principle also aligns with the UN Model Law which requires refusal of extradition request where the individual faces risks of torture or denial of a fair trial. The UN framework also makes clear that convictions delivered in absentia cannot justify extradition unless the requesting state guarantees retrial rights.
Death penalty safeguard
Section 12 of the UN Model Law on Extradition is a safeguard designed to protect individuals from being extradited to face the death penalty unless strict assurances are provided.
It states that “if the offence for which extradition is requested carries capital punishment in the requesting state, but not in the requested state, extradition must be refused unless the requesting state guarantees that the death penalty will not be imposed or, if imposed, will not be carried out”.
The Indian Extradition Act does not have an explicit death penalty clause for incoming requests (when another country seeks surrender from India) but is designed to regulate outgoing requests (when India seeks extradition abroad).
However, when India is answering a request, it must comply with international obligations under the UN Model Law. Section 7 of the Model law also requires retrial rights if conviction was in absentia.
The Sheikh Hasina case
From this perspective, Hasina’s case raises two key issues. One, political offence exception, when Bangladesh argues her conviction is for crimes against humanity, which are excluded from political protection. India must determine whether the charges are genuinely criminal or politically motivated.
Second, fair trial concerns, when convictions in absentia require retrial guarantees. In Hasina’s case, this safeguard is decisive as she was sentenced to death in absentia. India must insist that Hasina will be retried with full defence rights if extradited, recognised under UN standards.
Therefore, India cannot extradite Hasina without first determining whether the charges amount to a political offence and ensuring that she will be afforded a fair retrial.
(Edited by Nardeep Singh Dahiya)
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