Adani 'Conspiracy to Bribe' Indictment: What Lies Ahead for the Business Tycoon?

'If they manage to convict Adani on SEC fraud, then they'll push for bribery,' a criminal litigator told The Quint.

The indictment, which has been accessed by The Quint, states that Gautam Adani and other associates conspired to bribe Indian government officials between 2020 and 2024 to obtain solar energy contracts – which were expected to generate $2 billion in profits over a period of 20 years.

(Photo: Aroop Mishra/The Quint) 

A political brouhaha has swept Parliament's Winter Session over a US court's indictment of Gautam Adani, his nephew Sagar, and six others in connection with an alleged conspiracy to bribe Indian government officials to the tune of over $250 million in return for solar energy contracts.

While the Narendra Modi government has refused to issue a statement on the case in Parliament, reiterating that the law will take its own course in the matter, the Opposition has refused to let the matter die down.

Meanwhile, the legal technicalities of the case are still up in the air, and there is a lack of clarity regarding which of the people mentioned in the case are accused of what charges.

In this article, The Quint decodes the legal facets of the indictment and explains the various avenues the case against Adani could take.

Simplifying the Legal Facets of the Case 

A total of five counts have been mentioned in the indictment by the US District Court for the Eastern District of New York:

1. Bribery

2. Securities fraud conspiracy

3. Wire fraud conspiracy

4. Securities fraud

5. Conspiracy to obstruct justice

Of these, Gautam and Sagar Adani have not been named in count 1 and 5 – which are the most critical. However, the charges against them (2,3,4) are severe, nonetheless.

The indictment, which has been accessed by The Quint, states that Gautam Adani and other associates conspired to bribe Indian government officials between 2020 and 2024 to obtain solar energy contracts – which were expected to generate $2 billion in profits over a period of 20 years.

Firstly, if the allegations are of an Indian business group conspiring to bribe the Indian government, why have charges been filed by a US court?

This is because Adani and the other defendants have been accused of raising money from US investors and misleading them while the conspiracy plan was allegedly being hatched and carried out. The court states that the offences were allegedly committed "at the expense of US investors". Hence, according to them, the US Foreign Corrupt Practices Act (FCPA) will apply in this instance.

Further, the Securities and Exchange Commission (SEC), which is the regulator for the US' financial markets, has also filed a detailed complaint against Adani for alleged financial malpractices. The complaint has been accessed by The Quint.

How Does the Prosecution Plan to Proceed? 

The charges having been spelt out, how will the case against Adani proceed?

"For now, the US government aims to convict Gautam Adani on the parts that are crystal clear: counts 2,3, and 4. There could very well be enough evidence to convict on the false statements to investors, and therein lies the strength of the case," said US-based criminal attorney Meg Strickler while speaking to The Quint.

"If they manage to convict him on SEC fraud, then they'll push for bribery – probably through a superseding indictment," she added.

A superseding indictment is filed after the original indictment and typically includes additional information, evidence or new witnesses against the accused. The new indictment is usually formed on the basis of the information revealed in a trial following the previous indictment.

"There are almost always follow-up indictments. In this case, a more specifically-charging document can occur in the future, and probably will," Strickler said.

What's Next for Gautam Adani? 

A number of scenarios can play out from this point forward for Adani and the other accused named in the indictment.

• Arrest/extradition

Firstly, given that this is a criminal and not a civil case, the accused persons can be apprehended if they were to step foot on US soil.

"As soon as they enter the US, Gautam and Sagar Adani and the other defendants will be held by authorities and transferred to the eastern district of New York to be processed as that's where the case against them was filed," Strickler told The Quint.

The simple solution would then be for the Adanis to not go to the US in order to avoid arrest. However, there could still be several inconveniences headed their way.

The US has extradition treaties in place with almost all countries in the world. Only a few, such as China, Russia, North Korea and some African countries, have not inked an extradition agreement with Washington.

Hence, even if the Adanis travel to the United Kingdom, the European Union, or anywhere in north or south America, they face the risk of being apprehended and extradited to the US to face trial.

"If the US government puts out a Red Corner Notice on Adani's travel, they can be picked up from pretty much anywhere and extradited. Hence, it's going to be difficult for them to pass through countries," Strickler asserted.

Moreover, the US government can also file a formal extradition request with India. Both the countries signed an extradition treaty in 1997. According to the agreement, for extradition to take place the crime in question must be considered an offence in both the countries and punishable by over one year's imprisonment. Political offences, however, are excluded, barring a few instances.

The US is also said to have issued arrest warrants for Gautam and Sagar Adani, according to multiple reports, making the probability of an official extradition request from them even more likely.

However, whether the Modi government will agree to extradite them is another question altogether. Dozens of extradition requests by India are pending before the US, including of people charged under stringent Indian laws like the Unlawful Activities (Prevention) Act and the National Security Act.

Further, the Indian government's decision to extradite or not depends on their own interpretation of the evidence provided by the US.

• Will a change of government impact the case?

There is yet another factor that could alter the case, and may very well come as a blessing for Adani and the other defendants.

The US is scheduled to go through a change of government in January, when Donald Trump will be sworn in as the next president of the US.

Typically, when the US transitions from a Democrat to a Republican government and vice-versa, staff changes are made across government offices, including the offices of states' attorney generals.

"If the main prosecutors dealing with the Adani case leave or are replaced during the change of government, then this whole prosecution might be abandoned," Strickler said.

• Is there enough evidence to convict?

Last week, two senior Indian lawyers – Mahesh Jethmalani and former Attorney General Mukul Rohatgi – had come to the aid of the Adani Group. While Rohatgi said that the Adanis haven't been named in connection with the more serious charges of bribery and obstruction of justice, Jethmalani said that the indictment was lacking in "concrete proof".

This despite the fact that the indictment and the SEC complaint goes into intricate details of how the alleged conspiracy was carried out. Among the documentation referred to in the indictment was a phone to track specific details of the alleged bribes offered, a picture of a document with details on the various amounts of bribes, and PowerPoint and Excel sheets "that summarised various options for paying and concealing bribe payments".

The indictment also cites two key unnamed persons in the case: Co-conspirator 1 and Co-conspirator 2. It states that Co-conspirator 1 referred to Adani using code names such as "numero uno", "the big man", or "Mr A" during internal communications among the defendants.

Further, the fact that an indictment was filed itself points to the presence of seemingly strong evidence, as an indictment can be filed in the US only after a grand jury reviews the evidence presented by the prosecutors and then decides whether it is enough for a case to go forward.

"The SEC complaint gives a lot of details on the case; the conversations on text, the documents et al are all strong evidence. It also mentions that the defendants lied to the banks in the US. While all of these things taken separately seem minor on the face of it, when you add them up they become big enough to say that the accused broke US laws."

Meg Strickler

• 'No legal request from US': MEA

Meanwhile, India's Ministry of External Affairs (MEA) said on Friday, 29 November, that it had not received any legal paperwork on the indictment against Adani and the other defendants.

"The Government of India was not informed in advance on the issue, and we have not had any conversation on this particular matter with the US government," MEA spokesperson Randhir Jaiswal said.

India and the US have signed an agreement which deals with providing assistance in cases against citizens in each other's jurisdiction, called the Treaty on Mutual Legal Assistance in Criminal Matters. However, Jaiswal said that no formal communication under the purview of the treaty has been conveyed from the US' side.

“Any request by a foreign government for service of summons or arrest warrant is part of the mutual legal assistance. Such requests are examined on merits. We have not received any request on this case from the US," Jaiswal claimed.