Can Sheikh Hasina Be Forced to Return?

By Mahima Katal

The remarks by Bangladesh’s Home Minister that the government wants former Prime Minister Sheikh Hasina to return through “legal procedures” have revived a larger legal question: can a former head of government living abroad be forced to return and face trial?

The answer lies at the intersection of extradition law, domestic criminal procedure, political offence exceptions, international human rights obligations, and judicial scrutiny.

This becomes especially relevant because Sheikh Hasina has been living in India since August 2024 while facing proceedings in Bangladesh, including a reported death sentence delivered in absentia by Bangladesh’s International Crimes Tribunal.

Extradition Is Not Automatic

A common misunderstanding is that extradition is a political or executive act. Legally, it is not.

Extradition is a formal legal process through which one state requests another state to surrender an individual for prosecution or punishment for offences committed within the requesting state’s jurisdiction.

India and Bangladesh have a bilateral extradition treaty, which provides the legal framework for such requests.

But the existence of a treaty does not create automatic surrender.

Extradition generally moves through multiple stages:

1.⁠ ⁠Request by the foreign state

2.⁠ ⁠Examination under treaty conditions

3.⁠ ⁠Domestic legal scrutiny in the requested state

4.⁠ ⁠Executive decision following judicial process

Therefore, even if Bangladesh formally seeks Sheikh Hasina’s return, India cannot simply place her on a plane.

The India–Bangladesh Extradition Framework: What Matters?

Under extradition principles reflected in the India–Bangladesh arrangement and India’s domestic extradition law, certain core requirements become important.

1. Extraditable offence must exist

Typically, the alleged conduct should amount to an offence recognised in both jurisdictions (dual criminality).

The focus is usually not on whether the offence carries the same title, but whether the underlying conduct is criminal in both countries.

2. Purpose must be prosecution or execution of sentence

Extradition generally operates for: •⁠ ⁠Criminal prosecution; or

•⁠ ⁠Enforcement of an already imposed sentence.

Bangladesh’s position appears linked to both — prosecution proceedings and implementation of the tribunal verdict.

3. Political offence exception

One of the most debated issues in this case would likely be whether the allegations fall within the political offence exception.

Traditionally, extradition law has recognised that states may refuse surrender where prosecution appears politically motivated.

This principle emerged to prevent governments from using criminal law to target political opponents.

Because Sheikh Hasina is:

•⁠ ⁠a former Prime Minister,

•⁠ ⁠leader of an opposition political party, and

•⁠ ⁠publicly critical of the current administration,

questions could arise over whether the proceedings are viewed as ordinary criminal accountability or political prosecution.

That said, many modern treaties narrow this exception for serious crimes.

Does Asylum Protect Sheikh Hasina?

Public discussion often refers to “asylum,” but legal protection depends on status.

If a person receives formal asylum or refugee protection, extradition becomes more legally complex.

A central principle in international law is non-refoulement — states should not transfer individuals to places where they face serious risks of persecution or prohibited punishment.

India is not a party to the Refugee Convention framework, but refugee and humanitarian considerations can still become relevant through domestic and constitutional principles.

Importantly, mere residence in another country does not itself prevent extradition.

The Death Penalty Question: Could It Become A Barrier?

One of the strongest legal questions in the Sheikh Hasina case concerns the reported death sentence.

Internationally, many states refuse extradition where a person may face execution unless assurances are provided. This links to the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) — often referred to as Optional Protocol II — whose objective is the abolition of the death penalty.

Countries committed to abolition frequently require diplomatic assurances that capital punishment will not be carried out.

India itself retains capital punishment in limited circumstances and is not a party to Optional Protocol II, so the protocol does not directly bind India’s extradition decisions.

However, death penalty concerns can still arise during judicial and executive consideration depending on facts and diplomatic assurances.

Judicial Scrutiny: Why This Is Not Merely Diplomatic

Another important principle is that extradition is not solely an executive or political decision.

Courts generally examine issues such as:

•⁠ ⁠validity of treaty requirements,

•⁠ ⁠identity of the individual,

•⁠ ⁠nature of offences,

•⁠ ⁠procedural fairness,

•⁠ ⁠evidence thresholds,

•⁠ ⁠human rights concerns,

•⁠ ⁠applicability of exceptions.

This is why legal experts often say extradition is a process of judicial scrutiny rather than political depiction or executive preference.

Can Sheikh Hasina Be Compelled To Return?

Legally, yes — but only if the extradition pathway succeeds.

For Bangladesh to secure her return, it would ordinarily need to:

•⁠ ⁠initiate a formal extradition request;

•⁠ ⁠satisfy treaty conditions;

•⁠ ⁠show the case is extraditable;

•⁠ ⁠address political offence concerns;

•⁠ ⁠navigate any human rights or death penalty objections; and

•⁠ ⁠withstand judicial review in India.

If Sheikh Hasina voluntarily returns, extradition becomes irrelevant and the matter shifts entirely to Bangladesh’s domestic legal process.

For now, the issue remains less about political statements and more about whether legal thresholds for extradition can actually be met.