The CBI has approached Interpol for assistance in locating Nirav Modi and his family, and will be communicating with Interpol’s member countries to find him and bring him back to India. His passport has been revoked, and his properties are being raided and attached.
Looks good, right? I mean, the whole PNB loan fraud scam looks terrible, but at least the wheels of justice are turning, and Modi, Mehul Choksi, and the devious bankers who helped them pull off this monumental scam will soon face consequences for their actions, right?
India’s Extradition Record
Sure, NiMo and Mehul Bhai may be found, their ill-gotten gains in India seized by the taxman, and all sorts of notices and circulars issued about them. But bringing them back to face trial is, by no means, a foregone conclusion. Let’s look at it this way, the wheels of justice can turn as much as they like, but when those wheels are attached to an exercise bike, you’re not really going anywhere.
Which is nothing new for India when it comes to the extradition game.
In terms of sheer numbers available from the Ministry of External Affairs, we have extradited 62 fugitives from foreign governments since 2002 (no details of previous extraditions are available). That doesn’t sound too terrible. However, when, according to an RTI response from the MEA, there are 121 extradition requests still pending, that’s a 33 percent success rate. Which is just dismal. In fact, since it’s arguable that this doesn’t include the rejected requests, the number is probably even lower.
When it comes to high-profile cases, the record looks even worse. We’ve been asking the US for 26/11 main accused David Headley for years, to no avail. The same is applicable for his friend Tahawwur Rana, even though India has argued that they’re charging them for separate crimes than those they’ve been convicted of in the US (otherwise double jeopardy would apply).
We have had an extradition treaty with UK since 1993, during which time, only one person has ever been extradited to us by them – Samirbhai Vinubhai Patel, accused of committing crimes during the Gujarat riots – and that too because he didn’t challenge his extradition.
The government has discussed a dozen other cases with the UK government multiple times, to no effect. There’s Dawood Ibrahim aide Tiger Hanif, whose extradition we asked for in 2010, but who’s still not been extradited, even though he has lost all legal challenges he could have mounted.
In October 2017, our extradition request for UK-based alleged bookie Sanjeev Chawla, the main accused in the Hansie Cronje match-fixing scandal, was turned down by the UK. The same month also saw the same judge, who is now hearing Vijay Mallya’s case, refuse an extradition request for Jatinder and Asha Rani Angurala, who had defrauded the Bank of India in Jalandhar back in 1990-93.
The Mallya Challenge
Speaking of Mallya, the attempt to get the former liquor baron back to the country is a perfect example of how poorly we do these things. India’s first attempt to extradite the Kingfisher kingpin in April 2016 was based on the loan defaults by his company – an utterly daft thing to do, because in law, a company is separate from its owners. This obviously failed, and Mallya settled in to the London life resignedly, forced into the agony of watching live cricket matches and hosting F1 parties at his house.
Even though the CBI wised up and finally based their extradition request in early 2017 on allegations of fraud, things haven’t gone very smoothly. After finally submitting the relevant documentation – they’d been admonished by the UK court for not doing so on time – the proceedings started towards the end of the year.
Only for the CBI’s very credibility to be undermined in court, thanks to the damning judgments in the Aarushi Talwar and 2G scam cases – the Indian courts had lambasted the CBI for numerous lapses, and even manipulation of witnesses in these two cases.
To make matters worse, the evidence being relied upon to argue that the CBI had a good case, included things which were not admissible as evidence – privileged communications between him and his lawyer, and statements under section 161 by witnesses to the police, which used the same language over and over.
Mallya’s lawyer Clare Montgomery had a field day criticising this ‘evidence’, and it is difficult to imagine that Chief Magistrate Arbuthnot, who has already rejected one Indian extradition request, will be much impressed by the CBI’s showing.
Incompetence by Indian Authorities
Mallya’s case isn’t the only one where Indian authorities humiliated themselves.
The most embarrassing was perhaps our attempt to get Ottavio Quattrocchi extradited from Malaysia, Argentina and Italy. We couldn’t get him from any of these countries, despite spending crazy sums of money – the Argentina attempt alone cost Rs 40 lakh, but failed because, according to the judge, ‘India did not even present proper legal documents’.
The incompetence of the Indian Ministries and authorities has also been a cause of frustration for the Supreme Court of India. In December 2017, a bench headed by Justice Arun Mishra criticised the Centre and MEA for their failure to make any headway in the Ritika Awasty case, saying:
“What is this attitude? You don’t even bother about the orders of the Supreme Court. We have been virtually extending threats to the officers in the Ministry of External Affairs (MEA), but you still don’t act…”
“Somebody has run away, but the government isn’t doing anything about it. We have been issuing orders in this case for last eight months, but you have done nothing. You should tell us what the undercurrent is. Why are you not acting?”
Those are pretty strong words for the Court to use, but appear to be well-merited. The authorities’ failure to make official extradition requests for Dawood Ibrahim or Hafiz Saeed (as of May 2017, responses by the MEA to an RTI query) boggles the mind, especially given all the chest-thumping done about them.
And what about Lalit Modi? Various ministers have spoken to the UK government, asking for cooperation in the 12 extradition requests we’ve made to them, during which they inevitably mention the former IPL-mastermind, wanted for all manner of financial skullduggery – but yet again, the MEA have not yet even made a formal extradition request to the UK!
With this kind of lackadaisical approach, is it any surprise that our extradition record is so poor?
Institutional Problems and Legal Position Coming Back to Bite Us
It is clear that far too many of our extradition requests get rejected. While I know this may be because they look like they’ve been put together by a chimpanzee that broke into the bakery of an Amsterdam ‘coffee shop’ – to put it mildly – this is not the only reason for the rejections.
Another delightful reason which will surely make every Indian proud, comes down to human rights concerns. Most countries will not extradite someone to a country where they feel their human rights will be violated, whether it’s because they won’t get a fair trial, or because the jails aren’t considered safe – meaning the accused could suffer death or torture (take your pick).
These are often the grounds on which Indian extradition requests flounder – the aforementioned bookie Sanjeev Chawla’s extradition was rejected because of concerns over jails.
Vijay Mallya has the same prisons expert, Dr Alan Mitchell, whose testimony clinched things for Chawla, testifying for himself, arguing that his human rights will be violated if forced to spend time in an Indian jail. Mallya’s lawyers and experts have also argued that the charges against him are politically motivated, quoting a former Supreme Court judge to say that the CBI is a “caged parrot” of the government. The recent CBI fiascos in court have also been used to show that Mallya won’t get a fair trial.
Another sticking point for India is that we still allow the death penalty – countries which have abolished this system (like those of the EU), can’t extradite a person to a country where they could be given the death sentence.
This doesn’t make extradition impossible – take for instance Abu Salem, who Portugal agreed to extradite – but it does impose conditions on us (Portugal insisted that we say in the extradition agreement that we wouldn’t give him the death sentence), and opens us up to further legal challenges which cost time and money.
All in all, through a combination of factors that are pretty much in our control, we’ve gotten ourselves a pretty dismal extradition record. Sadly, there are no plans in the pipeline to fix any of these issues, which strike to the heart of our justice system. And unless we start fixing it soon, scams like Nirav Modi’s will continue to damage us and go blithely unpunished.