This article has been authored by Rishika Saraswat, a first year student at WBNUJS, Kolkata.
Extradition is a procedure in International Law through which a nation-state requests another, to hand over the custody of a fugitive offender. There is no obligation on countries to surrender such fugitives as they uphold sovereignty within their territory and of those living in that territory. Because of this, governments mutually enter into treaties that allow the extradition of offenders on a reciprocal basis. The Belgian Extradition Law of 1883, was the first-ever codification of this procedure. After it, countries all around the world have entered into bilateral treaties exclusively for extraditing such individuals. These treaties find mention of the crimes which are punishable offences under the law of both the countries which are entering into the bilateral agreement with each other through the treaty.
The Westminster Magistrate’s Court’s judgment brought a sense of settlement to India’s long effort to extradite the Fugitive Economic Offender Nirav Modi from the United Kingdom to India. The Indian External Affairs Ministry requested extradition over two years ago, which led to his arrest in London, on March 20th 2019. After multiple extensions of his remand in the UK, the judgement was finally pronounced.
This article aims to analyze the judgment pronounced by the Westminster Magistrate’s Court and map out the further course of action under English Extradition Law and seeks to detail out whether or not the fight to bring back Nirav Modi is over.
It has been over three years since one of the most extensive frauds in the history of Indian Banking came to public notice when the media reported the very first arrest in the Punjab National Bank (“PNB”) scam case. The man in the centre of the fraud amounting to over ₨ 13,000 crore was diamond merchant, Nirav Modi. Unexpectedly, Modi fled the country in January 2018, before the news of his embezzlement hit reports all over the nation. This was possible because of the negligent action on PNB’s part in reporting the fraud to the Central Bureau of Investigation (“CBI”). The Income Tax probe looking into this alleged scam, finalized its report in June 2017. Since, the case was not reported to the CBI, it gave Nirav Modi and his partners an anticipatory opportunity to flee the country. He is accused by multiple agencies, namely the CBI, Enforcement Directorate, and the INTERPOL, for criminal conspiracy, embezzlement, fraud and money laundering, among other charges. Modi was reported to be in London by the UK government in late 2018. This led to an extradition request being made by the Ministry of External Affairs.
The Extradition Law of the United Kingdom
An Extradition Treaty was signed between India and the UK back in the year 1992. Requests of extradition made to the UK are governed by another legislation which is the Extradition Act, 2003. This legislation lays down the comprehensive procedure which must be undertaken in order to extradite an offender. Countries that have bilateral treaties with the UK fall under the Category 2 territories of the Act. India falls under this category, making it necessary for the extradition request to be approved by the courts as well as the Secretary of State.
The procedure for extraditing an offender who has fled to the UK after committing a crime in India has multiple steps, which begin after the request of extradition has been certified by the Secretary of State. On certification, a judge has to decide whether an arrest has to be warranted against the accused, which leads to a preliminary hearing followed by an extradition hearing. Once the court hearing ends in favour of extraditing the accused, the final decision lies with the Secretary of State.
Extradition Hearing’s Verdict
On the 25th of February, the Westminster Magistrate Court, in the case of Government of India v Nirav Deepak Modiallowed for his extradition to India. Judge Samuel Goozee found the evidence provided by India to be sufficient to establish a prima facie case, and he quoted Aitkens L.J from the case of R v. G & F, where the approach of reasonable surety was laid. Judge Gooze summarized this approach by stating that from a combination of factual circumstances based on evidenced adduced by the prosecution, when a judge can conclude that a “reasonable jury” would arrive at a verdict against the accused, a prima facie case is said to be established.On applying the approach in this case, the Judge upheld the assurance of a fair trial provided by the Indian Government and dismissed Modi’s submissions which stated his mental health conditions and poor prison conditions in India as a defense to extradition.
On analyzing this judgment, it is evident that the Court has acknowledged India’s established prison facilities to be of sound standards. This has undoubtedly set a righteous precedent on declaring the conditions in Indian prisons safe and in accordance with human requirements of ventilation and natural light. This would act as a standard in deciding cases that come in, as extradition hearings in the future. It would not only bind future judgements within the United Kingdom but will also hold a persuasive value in other common law jurisdictions if a case of extradition to India is being adjudicated upon.
Another takeaway from the Westminster Court’s judgment is the scope of Equivalent Offence concerning extradition treaties. According to Section 137 Clause 3(c) of the Extradition Act, 2003, the conduct for which the offender is being extradited should be punishable under the laws of the UK as well. This is known as the principle of “dual criminality”.Justice Goozee held that this principle of “dual criminality” does not require identifying an equivalent offence under the English law, but is sufficiently upheld when the offender’s necessary mental element is met and recognized by the Court. Like in the case of Modi, there need not exist in the law of UK, an offence with the exact label of “fraud” or “money laundering”, but an offence with the equivalent mental element would suffice in meeting this criterion.
Legal Recourse Available to Modi
As explained above, India being a Category 2 country under the Extradition Act, 2003, therefore, for the extradition to be confirmed, it is to be ratified by the present Secretary of State, Priti Patel. The involvement of the Secretary of State signifies that the extradition was an act of sovereignty with the final word on surrender being left to the executive. The Secretary may choose to decline ratification if the court is found to have been in abuse of its power. Although, looking at the past cases, it is unlikely for the Secretary to go against the Court’s order. This was also seen in Vijay Mallya’s extradition from the UK to India, when the then Home Secretary, Sajid Javid, had approved the extradition order of the court.
But the case does not end here. Modi will have 14 days from the date of the Secretary’s approval to challenge the Magistrate Court’s order. The appeal would then be heard by the London High Court’s administrative division. The Supreme Court will only hear a further appeal if the High Court declares that the case involves a point of law of general public importance.
What Lies Ahead
As for the Indian Government, if Modi makes no appeal, an extradition order must come in within 28 days of the Secretary of State’s decision. This would lead to him being brought back to India, where he would be held in Barrack 12, Arthur Road Jail, Mumbai.
To give a fair picture of what can be expected, an appeal is likely to come in. Once Modi appeals to the High Court, a series of hearings would follow. What result they bring in, is what time will tell. The procedural delays that an appeal may bring in, would not defeat the essence of the Magistrate’s judgement. It will act as a relevant authority in upholding the precedent favouring future cases falling under the ambit of the extradition treaty between the two countries.