The Bangladesh government has requested the Indian government to send them back to Bangladesh so that they may be put on trial for their alleged serious crimes. The Indian government has reportedly refused to return them because of the absence of a bilateral extradition treaty.

It is reported that the Bangladesh government has asked Interpol (the International Criminal Police Organization, better known by its telegraphic address Interpol) to take necessary action so that the alleged criminals face trial in the court of law in Bangladesh.

The issue is: Can India refuse to return the Bangladeshi alleged criminals/militants on the plea of the absence of an extradition treaty?

In my view, India's refusal is too legalistic in nature, and does not appear to be in conformity with the existing state of friendly relations between the two countries, especially when a non-party caretaker government, which has been engaged in curbing religious extremism and activities of criminal gangs, is running Bangladesh. In my view, India can send them back to Bangladesh if it wishes, despite the absence of an extradition treaty. I shall discuss the issue in the following paragraphs:

What is extradition?
Extradition is the process by which one state (the requested state; India in this case) surrenders an individual found in its territory to another state (the requesting state; Bangladesh in this case) where the individual is wanted, either to stand trial for an offence he is alleged to have committed or to serve a penal sentence already pronounced against him.

Under international law, extradition falls within the ambit of state responsibility and manifests cooperation with other states so that no alleged criminal goes unpunished. The goal is common for both the states, ensuring that alleged criminals get punishment for their crimes. There is an obligation on every state to not allow suspected criminals, who want to avoid a court of law where the alleged crime has been committed, to take refuge within its territory.

The request for an extradition from the requesting state (Bangladesh) is based on the personal jurisdiction of that state over its citizens, while the requested state (India) may exercise its territorial jurisdiction over alien citizens.

There are two options
One option is that, instead of sending them back to the requesting state (Bangladesh), the requested state (India) puts them on trial on the basis of facts available to them.

The other option is, in the absence of an extradition treaty, that the government can take recourse to the procedure or process as required under its own law of extradition for sending back suspected criminals to the requesting country. Domestic extradition law prescribes its own procedure and, normally, a magistrate hears a case of extradition.

Extradition is not normally allowed in the following cases:

• Offence is of a political nature.
• Offence against religion.
• If the offence for which the person is to be extradited is not an offence in the requested state.

It seems that none of these criteria exists in the case of Bangladesh's request to India to send them back.

Bangladesh enacted its Extradition Act in 1974, and it came into effect on May 16, 1975. Bangladesh law provides that the government may extradite a person in the absence of an extradition treaty to requesting states, if it deems it appropriate.

What is deportation?
Deportation is an act of expulsion of an undesirable alien from a country. A distinction should be drawn between extradition and deportation.

Extradition presupposes that the individual is to be prosecuted, while deportation does not. It is merely an administrative act of a government that an undesirable foreigner should not be allowed to live or stay or take refuge in the country.

Other factors in consideration
Paragraph 25 of the New Delhi Saarc Declaration of April last condemns terrorism, including the targeted killing of civilians, in all its forms and manifestations, wherever and against whomsoever committed.

Against this background, if there are militants hiding in India, or taken into custody, India has an obligation to either send them back to the requesting country for meeting justice, or to put them on trial. The main objective is to ensure that militants cannot get away with blood on their hands.

The spirit of good neighbourliness must exist among neighbours, and needs to be nurtured and promoted. Managing bilateral relationship is like looking after a garden: careful attention is required so that weeds are not allowed to spring up to choke those plants which are productive and good. Long-term interests should not obscure short-term interests.

Bilateral relationship should never be taken for granted. It rests on an extraordinary network of long-standing vital interests. These interests are enduring, and they're too important to leave unattended, or to our faith in something as vague as goodwill. A sustainable relationship exists if it's based on shared values.

In the light of the above paragraphs, it is argued that India has a neighbourly obligation to send back the suspected Bangladeshi criminals from India. If it finds legal difficulty in extraditing them, it can easily deport them to Bangladesh as undesirable aliens.

Another interesting fact to be noted is that while Indian authorities are refusing to send the suspected militants/criminals back, some in India's media have accused Bangladeshi militants of being behind the Mecca Masjid bombing in Hyderabad on May18th. The people of Bangladesh are disappointed to see such baseless accusations and display of double standards.

India, arguably, cannot avoid its obligation on the plea of the absence of extradition treaty with Bangladesh. The suspected criminals/militants must not consider India as safe haven.

Barrister Harun ur Rashid is a former Bangladesh Ambassador to the UN, Geneva.