Human Rights, Legal Precedents: Getting Mehul Choksi Extradited Is a Tall Order

Despite the India-Belgium treaty, 'discretionary powers' can be used to deny Mehul Choksi's extradition.

Mehul Choksi, a diamond trader wanted in India for allegedly defrauding the state-run Punjab National Bank (PNB) to the tune of over Rs 13,000 crore, had been living in Belgium's Antwerp over the last few months with his wife, who is said to have Belgian citizenship.

(Photo: Vibhushita Singh/The Quint) 

"We can confirm that that Mr Mehul Choksi was arrested on Saturday, 12 April, and that Indian authorities have introduced an extradition request for him," a representative of the Belgian Federal Public Service of Justice told The Quint on Monday, 14 April.

Choksi, a diamond trader wanted in India for allegedly defrauding the state-run Punjab National Bank (PNB) to the tune of over Rs 13,000 crore, had been living in Belgium's Antwerp over the last few months with his wife, who is said to have Belgian citizenship.

While the arrest is being seen as a major victory for the Indian government and central agencies, who hope to extradite the 65-year-old businessman and try him for the alleged financial frauds, the process of getting him to India to face justice is going to be a long and arduous one.

Advantage India 

Starting with the advantages for the Indian government, Belgium and India have an extradition agreement in place as opposed to Antigua and Barbuda, where Choksi had initially fled in 2018 before the fraud came to light.

Indian authorities had failed to get custody of him from the Caribbean nation due to the absence of any formal agreements between the two countries.

The India-Belgium extradition agreement, which was initially signed between Britain and Belgium in 1901 and extended to India as well, was ratified by the Narendra Modi government in March 2020.

Its provisions state that both countries commit to hand over individuals who have been accused or convicted of offences which are punishable by imprisonment of at least one year in either country. The offences include those relating to tax fraud, financial embezzlement et al – crimes which Choksi has been accused of.

"The India-Belgium extradition treaty is the operative legal instrument in Choksi's case," immigration lawyer and Supreme Court advocate Karan Thukral said while speaking to The Quint. "The treaty’s enumerated offences, including fiscal fraud and embezzlement, fall squarely within the scope of extraditable crimes."

Also, according to a report by Caribbean news outlet Associated Times, Choksi had secured an 'F Residency Card' (residence permit for family members of EU citizens) in Belgium by submitting "fabricated" documents to Belgian authorities, including false declarations and forged papers.

Hence, all of these factors taken together make up for corroborated evidence supporting Choksi's arrest and increases the probability for his timely extradition to India.

Advantage Mehul Choksi

However, there is a flipside.

While the India-Belgium treaty spells out in clear terms the conditions for extradition, which unequivocally apply to Choksi, several subtle characteristics of the agreement will be used by Choksi's defence team to grant him bail.

Discretion plays a major part in the agreement. In other words, if a country is not satisfied with the evidence provided by the other or feels that the human rights of the accused may be violated if extradited, then extradition can be refused.

For instance, if the crime of the accused is perceived to be "political" in nature or the person is being charged on the basis of their race, nationality, political views et al, then extradition can be denied.

Hence, perception is key in this regard.

"Extradition is a heavily discretionary process. Various factors, including the nature of the offense, the existence of treaties, and the laws of both the requesting and requested states, determine whether extradition will be granted," immigration lawyer Ravneit Kaur Brar said while speaking to The Quint.

Similarly, Belgium is a signatory to the 1951 Refugee Convention, which includes the principle of "non-refoulment". The principle essentially prohibits a country from returning a person to a place where they have a well-founded fear of persecution or fears of any other serious human rights violations.

In this regard, the strongest argument in Choksi's armoury will be the citation of the abysmal condition of prisons in India and the alleged physical risk he may face if extradited. This argument has been used by Choksi's legal team in the past as well, and quite successfully.

In a major blow to India, a Red Corner Notice (RCN) issued by Interpol against Choksi had been cancelled in 2022 after he submitted an appeal raising concerns over alleged human rights violations in India and political targeting.

An RCN is an alert issued by Interpol at the request of a member country to provisionally arrest any individual wanted in connection with serious crimes.

However, Choksi had argued that the RCN was being used as a tool to harass him instead of one in the pursuance of justice. The RCN's revocation had allowed him to move to Belgium from Antigua and Barbuda.

"The cancellation of the RCN can go against India because Choksi's appeal was accepted by a respected international policing body. This will be cited by his defence while fighting extradition," Brar said.

Recent Court Rulings Complicate Matters

To further compound matters for India, the London High Court issued a ruling on Tuesday, 8 April, refusing the Indian government's application to go to Britain's Supreme Court to appeal the high court's rejection of arms dealer Sanjay Bhandari's extradition to India, where he is wanted in connection with alleged money laundering and tax evasion charges.

Bhandari argued that he would be at a "real risk of extortion, torture or violence in Tihar jail from other prisoners or prison officials".

The ruling sets a precedent, and is sure to be used by the defence teams of other accused persons whom India seeks to try, including Choksi and his nephew Nirav Modi, a co-accused in the PNB bank fraud case who is currently imprisoned in the UK.

According to Karan Thukral, the London High Court's decision in Sanjay Bhandari’s case underscores the increasing judicial emphasis on the protection of human rights, particularly Article 3 of the European Convention on Human Rights, which prohibits extradition where there is a real risk of inhuman or degrading treatment due to prison conditions.

"Extradition can be lawfully refused if the requested state's judiciary is satisfied that the fugitive faces a real risk of treatment contrary to human rights obligations," he told The Quint.

Apart from fears of alleged human rights violations, the overcrowding of Indian prisons is another major concern and can be cited as a reason to refuse extradition. According to data published by the National Crime Record Bureau in 2022, the average occupancy rate of Indian prisons is at a staggering 131 percent. This is majorly because undertrials constitute 75 percent of the total prisoners in India.

Speaking to the media on Monday, 14 April, Choksi's lawyer Vijay Agarwal had said that his client's human rights will be "greatly affected" if he is extradited to India.

He further added that the extradition would be challenged on two major grounds: the "political" nature of the case and Choksi's health concerns.

The businessman is reportedly suffering from blood cancer and had plans to move to Switzerland from Belgium to receive treatment in a reputed hospital there.

"This is a political case. My client is not a flight risk and is gravely ill," Agarwal had said.

However, immigration lawyers argue that while the human rights angle may work in Choksi's favour, the other arguments provided by his defence are unlikely to hold up in court.

"The argument that Choksi is not a flight risk is weak," says Ravneit Kaur Brar.

"He fled from India and went to the US in 2018 and acquired Antiguan nationality in anticipation of a potential criminal case against him. Thereafter he fled to Belgium. Irrespective of his health concerns, he has the motive, means and resources to flee."

Ravneit Kaur Brar

The Indian government has also countered Choksi's argument against his extradition due to health concerns, stating that if he was capable of flying from Antigua to Belgium to receive treatment, he could also come to India, where adequate cancer treatment facilities are available.

In conclusion, the Indian government's case against Choksi presents a mixed bag of pros and cons. While the extradition request can go either way, one thing is for certain: the process is going to be a long and arduous one.

"The India-Belgium extradition treaty provides a robust legal framework for Choksi's surrender, but the process is subject to multifaceted judicial review, encompassing treaty obligations, exceptions for political offences, humanitarian considerations, and compliance with international human rights standards. Each defence raised will be adjudicated on its merits, with the burden on the requesting state to dispel concerns regarding due process and humane treatment."

Karan Thukral