The old proverb from the early 1900s, ‘No one can escape the long arm of the law’ reflects the functioning of India’s extradition framework in bringing back fugitives who have escaped the country. There have been numerous incidents in the past where reliance on the country-specific provisions of the extradition framework has led successfully pulling back fugitives to the home ground who attempted to escape the consequences of their criminality. However, it’s not as easy as it sounds and the process can be a tedious and long drawn one for a government seeking to extradite somebody.
The philosophy of the extradition law is simple; to forbid the repercussions of domestic criminality from becoming international through cross border escape by a fugitive thereby freeing them from prosecution in the home country. Therefore, the Indian law governed by the Extradition Act, 1962 provides a framework governed by a cooperative process between India and other countries for the transfer of criminals.
India’s track record of bringing back high-profile businessmen leaving the country on the heels of a controversy is not one to be proud of. As new scams continue to unfold, the fate of absconding fugitives including Vijay Mallya, Lalit Modi, Nirav Modi, Mehul Choksi, Deepak Talwar lies in the hands of the extradition process. Strategized attempts to bring back these fugitives, however, can be seen to be heating up now more than ever as the country heads closer to the general elections. The BJP government, as it looks to return to power is leaving no stone unturned in playing the ‘ghar wapsi’ card to draw back offenders and make them accountable to the law of the land for the crimes of which they are suspected to have committed. It has ensured that India’s track record in fulfilling its diplomatic relations while dealing with the pending high-profile extradition cases goes a long way in boosting its reputation internationally leading to greater public faith in the country’s law enforcement agencies which in turn is used as a vote bank strategy.
For instance, a person who is accused of sedition in India and escaped to the United Kingdom cannot be extradited as that country does not recognize the criminality of sedition since 2009. Another precondition that the requesting state must fulfill before putting in an extradition request is to check the proportionality between the offence and the punishment for that particular crime. The possibility of a death sentence to the fugitive by the requesting state usually leads to the extradition request being turned down. Fair trial after the transfer of fugitive and assurance that he will be tried only for the crime for which his extradition is sought are other conditions that the requesting government needs to comply with for successful extradition. Some countries also refuse to extradite if the kind of expected punishment is abolished or is not administered under their own law.
The process of extradition is elaborate by itself. It is set in motion by the receipt of information/requisition regarding fugitive criminals wanted in foreign countries by the Interpol wing of the CBI. This is then passed on to the concerned police organizations after which a Red Corner notice may be issued. Although a Red Corner notice may not mean an arrest warrant and is meant to alert the international police for a suspect, it has other consequences such as curtailing of the fugitive’s international travel, closure of bank accounts, etc.
We take an in-depth look at the status of some of the most controversial and highprofile legal cases of extradition to bring back fugitives in the last 5 years:
With general elections inching close, bringing back fugitive Nirav Modi, who is the main accused in the $2 billion PNB fraud case, would be a major boon for Prime Minister Narendra Modi and his BJP party as he tries to reinforce his anticorruption credentials. His extradition case gained pace after his arrest in London a little over a year after he fled the country after allegedly defrauding PNB of $2 billion. His arrest came days following the issue of an arrest warrant against him on ED’s request for extradition and after he was tracked down in London by reporters from the Telegraph newspaper. He is currently behind bars as he was denied bail by the Westminster Magistrates’ Court, a decision he intends to appeal before the next hearing.
Investigative agencies, the CBI and ED had filed their charge sheets against Modi in May last year and an Interpol notice was issued in June. Two extradition requests were sent by the CBI and ED to the UK authorities in August last year. The govt’s strong commitment towards extraditing him back through a legal victory ca n also be gauged by the presence of a joint team of CBI and ED in London that attended Modi’s first extradition hearing last month.
From his end, Modi tried all kinds of tactics to avoid arrest since he fled India. These include his attempts to get the citizenship of Vanuatu. Following the footsteps of his uncle Mehul Choksi, he also applied for citizenship to Antigua, which was also turned down.
To be sure, the wheels of the extradition process are in motion but the entire process is expected to be a long drawn one. Nirav Modi’s case, however, may not be as tedious since it has liquor baron Vijay Mallya’s extradition case as a template and most of the homework on Modi’s case has already been done by the investigative agencies. As per UK’s 2003 extradition act, India is a ‘Category 2’ country, which requires assent from both the judiciary and the secretary of state for the home department for extradition requests. Once the judge of the lower court is satisfied with the procedural requirements being met, and that none of the statutory bars to extradition apply, the case will be sent to the secretary of state for a decision to be taken on whether to order extradition.
Under the law, there isn’t much the secretary of state can do. He can refuse extradition only if the requested person faces the death penalty, there is no “specialty arrangement” with the requesting country or that the person has already been extradited to a third party. If none of these three prohibitions apply, the secretary of state has to compulsorily order extradition.
Even though the UK’s lower court may have decided to send the case forward to the secretary of state, he will be able to able to exercise his right to appeal that decision. Modi will be able to appeal only after he has taken permission from the high court within two weeks. This appeal will be heard together with an appeal against the decision of the state of secretary if any. If he does not appeal the decision of the lower court, he will be extradited to India within 28 days from the state of secretary’s decision.
Modi will also be able to appeal the decision of the secretary of state if he orders for extradition, which will be heard together with the appeal against the judge’s decision in the UK high court. As a final recourse, the appeal from the UK’s high court decision will be heard by the UK Supreme Court.
Modi’s case is expected to follow a similar trajectory as that of Mallya. One thing going in favor of this extradition is that Sajid Javid who is the secretary of state has already certified the extradition request. The outcome of the extradition trial will be affected by the how forcefully the CBI and the ED are able to contest his opposition to India’s extradition request. His lawyers will also have to come up with new support arguments as earlier arguments of charges being politically motivated and the inhuman conditions of Indian jails were rejected by the UK court last year in the similar drawn extradition case against Mallya. “Hopefully there will not be any new citizenship status that he acquires, as that will cause confusion due to the presence of international treaties at play and throw off the entire extradition process”, said a legal official who deals with extradition cases.
While the extradition process may not be completed in time for the kick-off to the 17th general elections, it is no doubt a big milestone for India’s investigative agencies and a politically handy tool for the Narendra Modi led – BJP government who can leverage it in line with its anticorruption campaign of ‘main bhi chowkidaar’ for securing votes. The timing of his arrest also conveys the BJP party’s strong-headedness to tackle corruption in the Indian banking system and set it out as an example for years to come. This win, if secured in time for elections will be a strong factor to turn the tide in support of the ruling BJP government.
In comparison to Nirav Modi’s extradition process that is imminent and mirrors that of liquor baron Vijay Mallya, India may have to wait just as long to get Mallya back even though his process is a leg ahead. Apart from the culpability of banks’ dues, defunct Kingfisher Airlines also owes ` 300 crore in salaries to employees. Facing charges of defrauding loans and money laundering of over ` 9,000 crore, Mallya’s fate inched closer to being extradited as the United Kingdom home secretary gave the go-ahead to have him sent to India. With the home secretary formally having signed the extradition order, Mallya exercised his 14-day window of appeal and moved the UK high court against the lower courts’ decision to extradite him. This could take anywhere between 6-8 months. There are circumstances where the appeal can be extradited but only if grounds of urgency can be shown. If he appeals the high court’s order to the Supreme Court after getting applying for the right to do so, it could easily take over a year until a final decision.
“The conduct would constitute the offences of making false representations to make a gain for himself, conspiracy to defraud and money laundering. The conduct is punishable in India by imprisonment longer than 12 months,” the chief magistrate said while delivering the verdict. He also took a tough stance against his flashy lifestyle. Although Mallya who is currently out on bail may not make it back in time for the general elections, the movement of his extradition process a step further during the BJP government’s regime is seen as a significant political win it can rely on.
The extradition of Christian Michel, one of the alleged middlemen wanted by investigative agencies in connection with the AgustaWestland chopper scam worth Rs 36,000 crore almost 2 years after India placed an extradition request to the UAE is one of the biggest feathers in BJP’s pocket ahead of the general elections. While some question the timing of extraditing the fugitive, others see it as a political opportunity and ammunition being used by the BJP against the UPA. In a statement given to the Dubai prosecutors, Michel denied his role in the VVIP chopper scam and said that he was being extradited to India in order to testify against the previous government.
Michel’s extradition was one that was a quiet affair until the news of his landing in India broke in December last year. It is a fine example of intense diplomacy undertaken by India’s national security advisor Ajit Doval and India’s ambassador to the UAE Navdeep Suri. Both Doval and Suri played a big role in meeting their aim of securing his extradition which could have been tricky considering he’s a British national. Suri is known to have been in liaison with the UAE government in regular touch with the prosecution system in Dubai, while Doval made frequent trips and calls to solidify the process through the year. The CBI had got a red notice issued through Interpol against Michel back in November 2015 but India upped diplomatic pressure on bringing Michel back after the Dubai’s top court refused to entertain his appeal against extradition. He had opposed the extradition request on the grounds that he stood exonerated from British courts from the same charges and due to the possibility of inhuman treatment, both of which were rejected. Following his extradition, the Indian authorities granted consular access to him as was sought by the British high commission. A Delhi court has allowed the ED to question Michel who is currently lodged in Tihar jail in relation to the chopper scam. During one of the court hearing, he told the court that the CBI had asked him in Dubai to implicate certain persons, failing which he would be made to suffer in jail. Pursuant to his extradition and arrest, Michel has prayed for a fair trial after ED’s chargesheet filed this month claimed that he has confessed to receiving kickbacks in the chopper deal following a liaison with party leaders, bureaucrats from the then UPA government. The total value of kickbacks in the deal has been estimated at 70 million euros.
Before Vijay Mallya and Nirav Modi joined in, former IPL chief Lalit Modi was in line to get extradited back to India. What strangely stands out common between these fugitive businessmen is that they all chose to abscond to London to avoid the criminality of their actions in India. The reason behind this may have been India’s abysmal record in extraditing fugitives from the UK. India’s only successful extradition request so far from the UK has been of getting back Samirbhai Vinubhai Patel, an accused in the 2002 Gujarat riots.
Lalit Modi left India in 2010 following alleged financial irregularities in the 2009 season of the Indian Premier League. He took refuge in London. While Indian security agencies pursued his case, no formal request for his extradition was made to the ministry of external affairs until 8 years later in 2018. This was discovered in response to an RTI query. His passport was revoked after he failed to pay heed to three notices from the ED and a Blue Corner Notice issued against him, which sounds strange by itself since his address in London was common knowledge.
This is one case which political parties diplomatically played to no extent to sustain public faith and save their image in the process even if that meant putting Modi on a free leash. It is believed that the Manmohan Singh led UPA government did not wish to seek his extradition as it did not want to weaken its political game against the BJP. Among a host of reasons for not actively pursuing this case is its complexity and how it could have left every political party scarred. Eminent names such as Rajiv Shukla, Sharad Pawar and Arun Jaitley who was a Delhi cricket official until he joined the Narendra Modi government could have been dragged into the controversy. As it stands today, there is a higher probability of Nirav Modi and Vijay Mallya being brought than Lalit Modi who will continue enjoying the perils of a failed extradition by Indian authorities.
After Christian Michel’s successful extradition in December last year, in yet another breakthrough India’s investigative agencies used its diplomatic relations with the UAE to secure the extradition of Rajeev Saxena, an accused in the AgustaWestland VVIP chopper scam and lobbyist Deepak Talwar in January.
In October last year, a Dubai court had issued a non-bailable warrant against Saxena after the ED informed it of his failure to join the investigation after repeated summons. According to ED, three of Rajiv Saxena’s companies, namely, Interstellar Technologies (Mauritius), UHY Saxena (Dubai) and Matrix Holding (Dubai) reportedly received kickbacks from Gordian Sarl (Tunisia) and IDS Technologies (Tunisia), a firm set up by AgustaWestland accused Gautam Khaitan. The agency also claims that Saxena had full knowledge about the bribery involved. Similarly, Talwar is claimed to have been used his connections with the then civil aviation minister to move money around for the chopper deal. The AgustaWestland helicopter deal, finalized during the UPA regime under then Prime Minister Manmohan Singh was scrapped in 2013 as it got mired in kickbacks allegations.
The timing of their extradition could not have been better for the BJP government as its heading towards general elections. Having specially crafted a covert operation under the supervision of NSA’s Ajit Doval that was able to deport not one but two of the accused in the multi-crore scam goes a long way in reinforcing the party’s commitment to an anti-corruption India and signaling that economic absconders will not be spared.
Fugitive jeweler and diamond merchant, Mehul Choksi who along with his nephew, Nirav Modi is a key suspect in defrauding Punjab National Bank of $2 billion and had fled the country before accusations arose, is one step closer to being brought back to India as the extradition process against him officially began in Antigua last month. A Red Corner Notice has also been issued against him by Interpol which means that if Choksi tries to flee from Antigua, he can be detained and deported to India. India’s investigative agencies, namely the CBI and ED have sent across documents to authorities in Antigua to get them to send Choksi back to India. In August last year, India handed over Antigua a request for Choksi’s extradition. In a smart move, Choksi absconded from India into Antigua and surrendered his Indian passport in a bid to escape being extradited. He took up the citizenship of Antigua in exchange for investing in the country and expected to not be extradited since he would no longer be an Indian citizen. While some say that this was a delay tactic, legal experts are of the view that the extradition process would remain unaffected by this citizenship status and that the framework of the international law was strong enough to catch up to him. With the extradition process in motion, his return to India is dependent on how fast it moves, considering the judgment of the Antigua court and his right to appeal it.
Fugitive Indian diamond merchant Jatin Mehta has accused of owing Rs 6,800 crore to 15 banks through his company Winsome Diamonds and Jewellery and group form forever. This is the second largest loan default after that pulled off by Kingfisher airlines.
Running parallel to Nirav Modi’s case who is also accused of fleeing the country after duping banks while state-run banks continued to bear the brunt of losses, Mehta, at present, is a citizen of St Kitts and Nevis in the Caribbean Islands since 2013 and India does not have an extradition treaty with the island nation.
While the BJP govt continues to hit back at Congress saying that the bank loans were granted during the UPA government and that they let him flee India on an illegally acquired passport of Saint Kitts, Mehta’s strong political family connections to the Adani’s also cannot be sidelined; granting Mehta the perfect safety net.
Winsome first defaulted on loans in 2013 and cited$1 billion derivative losses suffered by its UAE clients as the reason for default. In 2016, India had sent LR to the UAE. CBI needs help from the UAE to verify Winsome’s explanation for its inability to repay Indian banks.
The plan was very simple. Winsome had imported gold on the back of standby letters of credit given by Indian banks in favor of international bullion banks which supplied the gold. Winsome used the gold to make jewelry that was exported to 13 clients in Dubai, payment from whom could be used to pay back banks. These buyers, however, failed to pay up.
Another absconder’s extradition case that the ED seems to be tightening its noose around is that of Sanjay Bhandari who is wanted in the country for offences ranging from violation of foreign exchange rules to routing of kickbacks in defence deals and for moving black money. The ED which has been trying to establish the link between him and Robert Vadra, brother-in-law of Congress President Priyanka Gandhi, is gearing to initiate proceedings to declare him as a “fugitive economic offender”.
Attention is being drawn once again as Bhandari was recently spotted by a reporter in London raising the question of whether his case will follow a similar turn as Nirav Modi who was arrested shortly after being tracked by the media.
The trail between Vadra and Bhandari was easily traceable. It is believed that the absconding arms dealer aided Vadra by purchasing benami properties in London for him in lieu of kickbacks that he received from defence and petroleum deals. The ED which is in possession of several email exchange between the two also claims that the two met in London several times. Vadra has denied any business association with him.
Bhandari’s troubles began when certain classified documents related to a defence deal and plans were seized in an income tax raid on his premises in 2016. By the time an FIR was filed and the CBI got involved to discover that his firm had received 7,50,000 swiss francs from the Swiss Pilatus company in 2010, Bhandari had fled to London. The efforts of the police to get a red corner notice against him went in vain as the Interpol refused to do so in 2017.
Since then, his properties worth Rs 20 crore have been attached and the ED has also seized his assets worth over ` 23 crore on counts of FEMA violations. He is restrained from selling disposing his properties abroad under the attachment order.
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