UK-India Extraditions: Ripe for reform?

New Delhi - India and Britain signed an extradition treaty in 1992, but since then there have been only rare returns of India’s most wanted. As the Vijay Mallya and Nirav Modi cases roll on, it may be time to reform the template.

By Prasun Sonwalkar

Published: Sat 8 May 2021, 9:51 PM

Last updated: Tue 6 Jul 2021, 2:26 PM

How it started…how it’s going: The contours of a popular meme format are useful to put the story of extraditions from the UK to India in context. When India’s home minister S B Chavan and British foreign secretary Ken Clarke signed an extradition treaty on September 22, 1992, the backdrop was Sikh and Kashmiri separatism. The pact took effect from November 1993, with much hope that it would prevent India’s most wanted from seeking a safe haven in the United Kingdom. But the simple truth is that New Delhi has since sought over 40 individuals facing a range of criminal charges from Britain, but only two have made the return journey to face justice: one Samirbhai Vinubhai Patel, wanted in a 2002 Gujarat riots case, and cricket bookie Sanjeev Chawla. It started well, but it clearly hasn’t exactly gone well. At almost every bilateral event, Indian interlocutors remind British counterparts about the pending cases; the latest occasion when it was raised was the virtual summit between Prime Minister Boris Johnson and Prime Minister Narendra Modi on Tuesday.

For all the enthusiasm in official circles in New Delhi in the early 1990s, the issue of extradition of Indians from Britain did not figure high in Indian public discourse. In several cases, the paperwork did not hold up to the threshold required in UK courts, besides others lapses and bureaucratic delays. Over the years and decades, India succeeded in securing the extradition of several individuals from the UAE and other countries, but the success rate with Britain has been negligible. Except for intermittent reports of failed extradition cases of music director Nadeem Saifi, underworld don Iqbal Mirchi or former navy officer Ravi Shankaran, other cases of India’s most wanted did not hit the headlines.

Cut to February 2017 and the high-profile arrests in London of businessman Vijay Mallya and later of diamantaire Nirav Modi in March 2019 — both facing charges of fraud and major financial offences — brought extradition into the spotlight, aided by the cut-and-thrust of politics around their cases back home. Driven by overweening public interest in India, their cases have been covered closely by London-based Indian journalists, prompting the quip that the long-drawn hearings in the Westminster Magistrates Court and the high court have made them experts in extradition law. Mallya was granted bail after the arrest, attended most hearings, and often used the media scrum to present his version of the case. But Modi, having failed in successive attempts to seek bail, despite offering millions of pounds as surety, remains in the Wandsworth jail in west London.

Their cases have progressed through Britain’s judicial and executive system with India, for a change, winning at various stages due to better quality of paperwork and evidence presented, but it is still unlikely that the two would make the return journey any time soon. Mallya has exhausted all legal avenues to resist extradition and has reportedly applied for asylum, which remains mired in a large backlog of such applications in the Home Office, and, if granted, would rule out extradition. Modi lost in the first stage in the magistrates’ court and has applied for permission to appeal in the high court. Both processes — Mallya’s asylum bid and Modi’s appeals — could drag on for months, if not years.

Says academic Paul Arnell from the Law School at Robert Gordon University, Aberdeen, whose research includes a focus on extradition: “Extradition from the UK to India remains frustratingly slow. It is understandable that a degree of frustration has arisen at what appears to be the largely ineffective extradition relationship between India and the UK. While extradition law has the two conflicting aims of facilitating international criminal justice and offering a degree of protection to requested persons, Indian prosecutors and commentators may well feel the latter too often and unwarrantedly trumps the former.”

Why Indian bids fail

There are several reasons why India’s most wanted have successfully resisted extradition by thwarted New Delhi’s efforts in UK courts. If the initial paperwork submitted to extradite a person is in order and the matter reaches the court, an arrest warrant is issued. The judge then has to determine whether any legal bars exist to the extradition and recommend to the Home Secretary to proceed with the extradition or not. This judicial determination involves several hearings, in which volumes of documents are presented by both sides, including video, witness statements and cross-examination of experts. A key element of this determination is whether a prima facie case exists against the person requested; the judge’s task is not to reach a conviction, but satisfy that prima facie cases exists and there is a case to answer in Indian courts when extradited.

The process also includes the requirement to ensure that the person’s human rights (at various levels) would be protected, if extradited; that a fair trial is possible in the country; and that the person would not be tried for crime other than that mentioned in the extradition request. Under the 1993 treaty, the crime for which a person is sought should also constitute a crime under UK law (for example, one Indian charged with dowry offence in India successfully resisted extradition in 2018 because there is no corresponding crime in English law).

The complex extradition process was cut short in the case of Samirbhai Vinubhai Patel who, at the first court hearing, when asked if he consented to be extradited or opposed it, agreed to it, and was flown to India in October 2016 to face justice in a case of rioting at Ode village in Anand district of Gujarat on March 1, 2002. Not consenting to the extradition sets off the prolonged legal and executive process of judgements and appeals. Besides, if much time has elapsed between a crime committed by an individual and a country seeking extradition, the court can refuse to extradite on the principle of ‘passage of time’.

The admissibility of evidence presented by India through the Crown Prosecution Service has long been a major issue. Saifi was discharged when it was held that the translation of certain evidence was inadmissible because it was not independently done and the original material was not included in the request. The court is also required to refuse extradition where it is made for the purpose of prosecuting or punishing an individual on account of his/her political opinions or that the trial or punishment will be prejudiced for those reasons.

Besides, individuals seeking to resist extradition have frequently raised the issue of prison conditions in India, the risk of torture, degrading treatment, over-crowding and challenges in access to medical facilities. In the Mallya and Modi cases, the Indian side has had to submit video and other detailed evidence about the Arthur Road jail in Mumbai, where both are to be lodged, if extradited. Their defence team led by Claire Montgomery has raised a plethora of concerns about prison conditions, including space, natural light and availability of drinking water. India’s submission in the form of a sovereign assurance from the Union home ministry that Mallya and Modi would face no risk of torture or degrading treatment and would be provided all facilities, including access to private healthcare if needed, has been accepted by the courts.

The reputation of fairness of the UK’s judiciary based on its independence and its focus on human rights and fair trial has attracted several high-profile individuals facing charge in from various countries, such as Mallya and Modi, with deep pockets to hire the best lawyers to represent them. India and other countries seeking extradition are represented by the Crown Prosecution Service in UK courts. Says Ruhi Khan, co-author of Escaped: True Stories of Indian Fugitives in London that explores the issue of extradition: “London is an alpha city, holds a high position in the global capitalist world economic and political order and is perceived to be a safe ‘reservoir’ for foreigners to invest in. There is no doubt that London has emerged as a place of refuge for those escaping the law in India. It began perhaps due to a sense of familiarity that the Indians shared with the British, the influence of the British culture on Indian life, the proximity to India and the ease of travel and migration. Yet the safety net comes from the faith in the British judiciary to test the requirement of a prima facie case and safeguard the human rights of the accused. This, many hope, will help them escape extradition.”

Adds Danish Khan, co-author: “Extradition is a complex process. In the case of India, a prima facie case against the requested person has to be established. This entails collection and submission of large volumes of evidence. While the high-profile cases of Mallya and Modi were keenly fought and went in favour of India, there have also been cases which have been lost due to shoddy paperwork or unprofessional approach by Indian agencies. But overall, the sovereign assurances by India and the reputation of the judiciary have worked in its favour. While it may seem that India’s political and judicial systems go on trial during the extradition proceedings with the defence raising several uncomfortable questions, the fact is that each case is determined on its merit and much depends on how effectively the evidence is presented against the requested person.”

The way forward

The UK’s has extradition arrangements with over 100 countries, broadly divided into two categories: One, comprising members of the European Union, and the rest (including India) in Category Two. There is also a vital differentiation in Category Two, which is sub-divided into Type A and Type B countries: those in Type A do not need to establish the key prima facie case in UK courts while seeking extradition, while those in Category Two need to establish the prima case to support their requests for extradition. Since India is in Category Two, most of the bureaucratic energy and time is spent in establishing that prima facie case exists against the individuals sought (Mallya at one stage lost his appeal in the high court on several grounds, but won on the prima facie issue). Another differentiation is that the judge’s decision on extradition requests made by Category One countries is final, whereas in the case of Indian requests, the final decision is the Home Secretary’s.

Arnell believes the time is ripe to reform the UK-India extradition template: “Evidential difficulties and the passage of time, for example, have frustrated Indian requests. These can be immediately addressed with improvements in practice and processes. The relationship would also, however, benefit from India being designated under the Extradition Act 2003 as not being required to provide evidence in support of a prima facie case with its requests. There is precedent for this under the Fugitive Offenders Act 1881 and provision for it under the Commonwealth Scheme. The central and most weighty argument in favour of reform is simply that extant law and practice is not meeting its purpose.” Arnell believes that reform is also desirable in the light of India’s emergence as a leading power, the UK’s departure from the European Union and the new political will in both countries to enhance criminal co-operation.

Changes and improvements at the India end would also improve the situation. Mumbai-born Sarosh Zaiwalla, a leading London-based lawyer, notes that only two individuals have been extradited since the treaty was signed: “So, what is the solution? I do not believe amending the extradition treaty is practical as the UK is bound by European Court of Human Rights. The only practical, and possibly enlightened, solution I see is for the Indian Parliament to amend the Indian Criminal Procedure Code (CPR) to make special provision for: one, housing the accused on his extradition until the final verdict after a trial in a secured detention centre and not in a general jail with basic facilities to permit the accused to conduct his usual business from his detention; and two, make special provision in the CPR for the criminal proceedings in India against the accused to be conducted on an expedited time frame (say maximum 12 to 18 months) until the final verdict with the accused allowed to conduct his commercial business as any ordinary person.”

(Prasun Sonwalkar is a London-based journalist)

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