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Beyond Politics, the Legal Question of Hasina’s Return

Published : Wednesday, 11 November, 2026 at 12:00 AM

Ahasan Uddin Bhuiyan

A political departure may take hours; a return can demand years of legal and diplomatic negotiations. Sheikh Hasina’s proposed December return, followed by her anticipated applications for a passport and national identity card (NID), has transformed an individual political question into a test of bilateral diplomacy, sovereign discretion and institutional legitimacy.

Bangladesh has invoked its 2013 extradition treaty with India, while New Delhi maintains that the matter must follow due legal process. The central question is how sovereign states reconcile treaty obligations, domestic political imperatives and the rule of law when their interests diverge. Beyond Hasina’s return, the issue concerns the limits of sovereign discretion and the resilience of diplomatic reciprocity under competing political pressures.

The Diplomacy of Extradition

Bangladesh and India signed an extradition treaty in 2013, amended in 2016, to facilitate the surrender of fugitives. Driven partly by cross-border security concerns involving ULFA and JMB operatives, the treaty gained practical significance with India’s extradition of ULFA leader Anup Chetia in 2015.

The treaty covers offences punishable by at least one year’s imprisonment, subject to dual criminality. Article 10(3) provides for an arrest warrant to support an extradition request, while Article 6 permits refusal on political-offence grounds, subject to exceptions including murder, kidnapping, enforced disappearance and terrorism. Article 8 also allows refusal where a request is not made in good faith or would otherwise be unjust or oppressive.

The treaty thus establishes reciprocal obligations without extinguishing sovereign discretion. Extradition is neither automatic nor exclusively political; it remains subject to domestic law, evidentiary requirements and the assessment of competent authorities.

The Politics of Presence

Hasina’s presence in India adds another layer of diplomatic complexity. Indian High Commissioner Dinesh Trivedi explained, “Hasina-ji was the Prime Minister of Bangladesh at the time. Given that it is a neighbouring country, we had little choice but to accept the reality.” He added, “She was not brought here by the Indian Air Force or the Indian Army.”

His remarks distinguish India’s acceptance of her presence from any involvement in her departure, emphasising that she arrived aboard a Bangladeshi military aircraft while serving as Prime Minister. India has since described her stay as being under “special arrangements”. Media reports suggest that she received Identity Certificates from India's Ministry of Home Affairs, although New Delhi has not clarified whether she enjoys formal asylum, refugee status or another legal arrangement.

Does such exceptional accommodation alter India’s extradition obligations? Not necessarily. Political protection does not automatically confer immunity, nor does the absence of an arrest warrant invalidate an extradition request. Her legal status, applicable Indian law and the government's decision to initiate proceedings remain consequential.

Stephen D Krasner’s theory of ‘organised hypocrisy’ explains how states profess international principles while allowing strategic interests and domestic politics to shape their conduct. The Bangladesh-India equation illustrates this tension, with treaty commitments operating alongside security considerations and bilateral pressures.

Krasner and Sovereignty

Stephen D Krasner’s theory of ‘organised hypocrisy’ explains how states profess international principles while allowing strategic interests and domestic politics to shape their conduct. The Bangladesh-India equation illustrates this tension, with treaty commitments operating alongside security considerations and bilateral pressures.

This does not necessarily imply bad faith. Rather, it exposes the tension between international obligations and sovereign discretion. The challenge is to prevent discretion from becoming a pretext for evading commitments. Sovereignty rests not merely on the power to refuse or consent, but also on the responsibility to justify decisions through consistent legal principles.

The Institutional Test of Diplomacy

Institutionalist theory holds that international agreements reduce uncertainty and sustain cooperation despite competing interests. Bangladesh’s extradition treaty with India therefore represents more than a mechanism for transferring fugitives; it embodies a bilateral commitment to procedural cooperation.

Bangladesh has reportedly sent multiple diplomatic notes verbales seeking Hasina’s return, while India maintains that extradition is a legal matter without providing a substantive public response. Although a note verbale formally communicates a government’s position, submitting a request does not complete extradition proceedings. Prolonged ambiguity risks eroding bilateral confidence. India’s assessment must conform to applicable law, while Bangladesh must substantiate its request with legally sustainable grounds. Institutional legitimacy ultimately depends not merely on outcomes but on adherence to agreed procedures.

States, Justice and Obligation

India’s Extradition Act 1962 provides the domestic legal framework, with the Consular, Passport and Visa Division of the Ministry of External Affairs serving as the nodal authority.

The central government may direct a magistrate to examine the allegations and supporting evidence and determine whether a prima facie case exists. The individual concerned may respond in writing. This inquiry is neither a criminal trial nor a final determination of guilt; its findings inform the central government’s decision.

The principle of non-refoulement may also become relevant where extradition exposes an individual to persecution, torture or other serious human rights violations. Its application depends on the circumstances and the states’ applicable international obligations.

Canada’s reported refusal to extradite a convict involved in Sheikh Mujibur Rahman’s assassination, amid concerns over the death penalty, illustrates how human rights considerations can complicate extradition. Accountability and due process are not competing imperatives; a credible legal order must uphold both.

The Paradox of Return

Hasina’s announcement of a December return has intensified debate. Her passport has been revoked, and the government has ruled out issuing her a passport or travel pass while insisting on extradition under the bilateral treaty.

Extradition and travel documentation are legally distinct. Seeking extradition does not necessarily require an ordinary passport, nor does the absence of one preclude every lawful arrangement for return. The government’s position nevertheless warrants clarification. If extradition is the preferred route, the legal and administrative grounds for rejecting alternative arrangements should be explained.

Max Weber’s distinction between an ethic of conviction and an ethic of responsibility is pertinent. Political conviction reflects professed principles; political responsibility demands consideration of their practical consequences. A demand for return must therefore rest on a coherent legal and administrative position.

Even if India considers extradition, the process may entail legal scrutiny, administrative decisions and judicial proceedings. With no formal commencement publicly confirmed, completing it within December appears highly uncertain.

Beyond Individual Politics

Ultimately, Hasina’s possible return will test the diplomatic maturity of both Bangladesh and India.

Bangladesh must pursue accountability through credible evidence, due process and consistent diplomacy. India must reconcile domestic political considerations with its voluntarily assumed treaty obligations. Neither country should reduce the matter to political will or treat extradition as an instrument for one sovereign state to dictate another’s judicial or administrative decisions.

Sovereignty entails more than the freedom to refuse, accept or negotiate; it demands the responsible exercise of authority within the bounds of law and international commitments. Borders define jurisdiction, treaties facilitate cooperation and diplomacy balances national interests. Institutions, however, confer lasting legitimacy on these arrangements.

A treaty’s true strength is not measured when national interests coincide, but when cooperation becomes politically difficult. Sovereignty then finds its most persuasive expression not in disregarding obligations, but in honouring them through law, wisdom and restraint.

The writer is a journalist at The Daily Observer