Why it is Still Not Going to be Easy for India to Extradite Nirav Modi

Fugitive jeweller Nirav Modi may have been arrested and captive in jail in London for now, but it’s not going to be simple for Indian authorities to extradite him to India, say legal experts familiar with the case as well as extradition treaties between the UK and India.

Nirav’s defence is likely to be built on the following arguments: That he is not an Indian citizen. Because he has a European country passport, he is subject to the laws in the European Union; that he is a victim of political vendetta; that the condition of the prison cell he will be incarcerated in will be subhuman and like other high-profile prisoners — Rajan Pillai, stockbroker Harshad Mehta, and Indrani Mukerjea — he too could be vulnerable to illness, death, and maybe murder.

As defined by the Supreme Court of India: “Extradition is the delivery on the part of one state to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and are justifiable in the courts of the other state”.

An extradition request for an accused can be initiated in the case of under-investigation, undertrial, and convicted criminals. In cases under investigation, abundant precautions have to be exercised by the law enforcement agency to ensure it is in possession of prima facie evidence to sustain the allegation before the courts of law in the foreign state.

Therefore, extradition, one lawyer says, is “an exercise of sovereign power by each state, which means when one country asks another to hand over another, it is an impingement on another nation’s framework of law and is an exercise in diplomacy, which is to say it’s not a pure judicial process.”

In essence, a court is leasing out its functionality on the behalf of the executive. A person may be found to to be a fit case for extradition, but that doesn’t guarantee the process will be swift, smooth, and without bumps.

India would have made a request to the Secretary of State in England and through their foreign offices would exchange ‘note verbales’, essentially polite letters, which is how governments speak to each other. Treaty obligations will be considered and the alleged offence will be noted, and emphasis made on ensuring there is no case of misidentification

Nirav was arrested by British authorities in London’s Holborn and was remanded in custody until March 29. He has been denied bail on the vice that he is at flight risk and is being represented by Barrister George Hepburne-Scott and Solicitor Anand Doobay.

Ultimately, it is up to the nation state harbouring the criminal that takes the final call, but if history is anything to go by, more developed Western nations do not extradite individuals to lesser developed economic countries in a hurry for multiple reasons that also include details in the treaties they have with that nation. The UK and India have an extradition treaty that was created in 1962.

Sarosh Zaiwalla, founder-partner at law firm Zaiwalla & Co, adds it is in India’s stand on pursuing “big-money individuals who have left the country.”

“It is in India’s national interest as it was Indian money which should have remained in India and used to grow the Indian economy and create more jobs in India rather than be used elsewhere in countries whose economies are already developed.”

Where do the proceedings go from here?

Much will depend on the arguments that are being made by Nirav’s counsel in the magisterial courts there as well as his status from an immigration perspective. That he is a European passport holder is known, but it is unclear if he has sought political asylum in the UK.

If he did, the process simply requires that an applicant demonstrates that he faces a serious risk to his freedom because of his political belief or that he or she will be treated in a way which would not respect human rights.

That could include torture or a situation where judges are controlled by the executive of a state. In the UK, it normally takes around a year to decide if asylum is to be granted, Zaiwalla adds. “If he did seek asylum, then the way forward for the government would have been to make a representation to the Home Office and put information in front of the asylum decision-makers and explain that this not a case of political asylum and ask them to expedite the decision soon,” says Zaiwalla.

What’s clear is that Nirav will be spending several hundreds of thousand pounds on lawyers and as one lawyer describes it, it will be basically “trading time for money, and that those funds would have gone much further in India.”

Courtesy: Business Standard