Two recent developments draw attention to India’s continuing difficulties in extraditing fugitives from Indian law. This is especially so in cases of alleged financial fraudsters. The record of getting back gangster is better.
A team from Britain’s Crown Prosecutorial Service recently visited Tihar jail to examine its conditions. This was because alleged economic offenders have told British courts that they would not be safe in Indian prisons. Separately, there is a matter before the Belgium judicial authorities regarding the extradition of Mehul Choksi, the jeweller who is accused of defrauding Indian banks.
Choksi has also pleaded that because of the Indian jail conditions he should not be extradited. To deny Choksi’s plea, Ministry of Home Affairs, in consultation with the Maharashtra government, has assured the executive and judicial authorities of Belgium that Choksi will be kept in Barrack 12 of the Arthur Road jail, where adequate facilities and safety would be provided to him.
Human Rights and Extradition
European governments’ concerns arise from their so-called general commitment to human rights. More specifically they are rooted in a judicial decision of the European Court of Human Rights.
As scholar Aarshi Tirkey noted in an August 2023 paper, 'Soering v United Kingdom,' a landmark judgment decided by the European Court of Human Rights equated poor prison conditions with “torture” and “inhuman or degrading treatment”.
As a result, the UK and other European countries have often denied extradition requests on the possibility that the requested person will be subject to poor conditions or custodial violence in India’s prisons. The Court’s decision applies also to Indian nationals in European countries because the laws of a country apply to all within its jurisdiction.
This condition about safety in prisons is now being routinely raised. In some cases, such as that of Kim Davy, the self-confessed criminal in the 1996 Purulia arms drop case, it has been taken to ridiculously extreme limits by the Danish courts to quash its government’s extradition order for sending him to India to stand trial. But more on Kim Davy later.
Mallya and Modi’s Extradition Appeals
In the cases of Vijay Mallya and Nirav Modi though, the British courts did not accept their appeals against the orders of their extradition to India. They dismissed their pleas regarding Indian jail conditions.
In a press release on 14 May 2020, relating to Mallya, the Central Bureau of Investigation (CBI) said that the High Court rejected the application to appeal to the UK Supreme Court against its order.
"The decision of the UK High Court to order extradition of Mr Mallya is a Milestone in CBI’s quest for excellence and a reminder that economic offenders, facing probes in large value frauds, cannot consider themselves as above the process merely because they have changed jurisdictions."The Central Bureau of Investigation in a statement
Despite judicial clearance, the British government has not extradited Mallya. In a case before the Supreme Court of India in 2022, the government informed the Court,
"Following the refusal of leave to appeal, VM’s surrender to India should, in principle, have been completed within 28 days. However, the UK Home Office intimated that there is a further legal issue which needs to be resolved before VM’s extradition may take place. The UK side further said that this issue is outside and apart from the extradition process, but it has the effect that under the United Kingdom law, extradition cannot take place until it is resolved. The High Commission was further informed that the issue is confidential and so it cannot be disclosed”.
For the past five years the British have refused to give reasons for not implementing the Court order. He has obviously applied for asylum in Britain and the asylum process is confidential under British law.
Asylum as an Escape Route
In effect, this means that despite the completion of an extradition process, the British have a way to nullify it. Hence, fugitives of all kinds—not only political—have a second avenue to preventing their extradition from Britain. Thus, the Dawood Ibrahim associate Tiger Hanif, who was wanted in criminal cases in India, succeeded also in preventing his extradition to India. And, naturally well-heeled alleged fraudsters like Vijay Mallya and Nirav Modi use the asylum avenue to remain in Britain indefinitely!
In December 2024, the Ministry of Home Affairs informed the Lok Sabha that India had made 178 requests to foreign countries since January 2019. It had succeeded in bringing back 23 persons to face justice.
Most of the persons extradited were gangsters. This process of getting back gangsters has continued this year, too. The countries that have cooperated with India in extraditing criminals this year include Azerbaijan, Cambodia, and the Philippines.
In a notable success India got the United States to extradite Tahawwur Rana in April this year. Rana is a Canadian of Pakistani origin, who was involved in the Lashkar-e-Toiba’s 2008 Mumbai terrorist attack. Another accomplishment was to get Dubai to extradite in December 2018 the British national Christian Michel James who is accused of corruption and forgery in the Augusta Westland Helicopter case. Michel continues to be in jail; charges are yet to be framed against him.
The Kim Davy Precedent
One of the most egregious cases of India’s failure in extradition matters relates to Kim Davy, the Danish national. The case goes back to 1996. Kim Davy is a self-confessed criminal in the Purulia arms drop case. After India gave full assurances that he will get a fair trial and his safety would be ensured that the Danish government issued his extradition order in 2010.
However, the next year Danish courts quashed that order. In effect they did not accept Indian assurances. In response, India froze relations with Denmark. That continued till the UPA government was in power. However, an intrepid Danish ambassador succeeded in persuading the NDA government to normalise ties with Denmark. That happened on the condition that India could seek Kim Davy’s extradition again. India agreed to do so.
As part of the warming of ties, Prime Minister Narendra Modi visited Denmark in 2022 and the extradition process began anew. To assure Danish courts, India agreed that a group of Danish security personnel could accompany him to India and that he would live in government accommodation in Kolkata during the trial and, if sentenced, would go straight back to Denmark to serve it there.
All this was decided during the visit of a Danish official team to India. The Danish government issued an extradition order but the Danish court again quashed it. It is believed that the Appellate Court would not consider the matter before the end of 2026. And, strangely and lamentably, the Indian government seems to be in no hurry.
It remains to be seen if Choksi’s lawyers cite the Kim Davy case in his defence at some stage.
(The writer is a former Secretary [West], Ministry of External Affairs. He can be reached @VivekKatju. This is an opinion piece, and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)