Even if the ED files a chargesheet, he can cite Vasundhara Raje’s witness statement and ask the British courts to refuse extradition for want of good faith on India’s part
The media, in chorus with some opposition parties, has begun demanding the extradition of Lalit Modi – now in temporary residence in Britain – to face charges levelled against him by the Enforcement Directorate. Bharatiya Janata Party spokespersons have also been declaring their intention of extraditing Modi, contrasting this with the failure of the erstwhile UPA government to bring the former IPL commissioner back to India.
Extradition, however, is not a simple matter. Let us consider the nature of the ‘charges and court cases against Lalit Modi in India’, as enumerated recently by India Today magazine. These include three show-cause notices sent by the ED: (1) for contravention of the provisions of the Foreign Exchange Management Act, 1999 to the extent of Rs. 8 crore; (2) for FEMA contravention in accepting a deposit of Rs. 20 crore from Emerging Media (IPL) based in the UK; and (3) for the payment of Rs. 243 crore made by BCCI to Cricket South Africa for IPL 2009.
Besides these cases against Lalit Modi, the ED is also probing
(1) an amount of $80 million paid by Multi Screen Media (MSM) to World Sports Group (WSG) as facilitation fees to withdraw from the telecast rights contract;
(2) whether $25 million of this amount was diverted to the accounts of Modi and others;
(3) an allegation that Modi favoured selected bidders in the first IPL auction 2008;
(4) whether Modi has used illegal money to buy his corporate jet through a Cayman Island Company;
(5) Four Seasons Hotel (Mumbai) owner Ramesh Govani’s transactions vis-a-vis Modi;
(6) an investment of Rs. 10 crores made by his wife, Minal Modi in Indian Heritage Hotel through a Mauritius-based company;
(7) a group of cases relating to FEMA violations, such as ownership of an IPL franchisee, the nature of foreign investments and valuation of shares and transfers thereof in respect of some franchisees.
There are a few other cases against Modi, including one involving an IT department notice of 2010 for having entered into some high value financial transactions during 2008-2009 without quoting his PAN number. The Mumbai Zonal unit of the Directorate of Revenue intelligence has also summoned him to give evidence and produce documents relating to the import of aircraft by M/s Golden Wings Pvt Ltd.
These are all serious matters that need investigation. So far, however, the ED has not managed to file a chargesheet in any of these cases.
‘Extradition’ refers to the process by which one state hands over a person accused or convicted of an extraditable offence to another within whose territory the offence was committed or alleged to have been committed. This is done at the request of the latter state and is usually based on a bilateral extradition treaty. Between friendly countries, an extradition may take place on the basis of reciprocity, even without a treaty. In general, however, extradition is possible only if the person sought is an accused or a convict of a criminal offence specified in the extradition treaty.
The relevant questions then are whether Lalit Modi has been accused or convicted of a criminal offence committed in India, and whether the said criminal offence is an ‘extradition offence’ under the Indo-UK Extradition Treaty of 1993?
Article 2 of the treaty clarifies that any offence, which under the laws of each country is punishable by a term of imprisonment of at least one year, is extraditable. The phrase ‘each country’ means that the offence must be an offence in both countries – this is known as the principle of double criminality that is common to extradition treaties worldwide. Article 2 further says: “An offence may be an extradition offence notwithstanding that it relates to taxation or revenue or is one of a purely fiscal character.” In other words, a criminal offence arising from or related to taxation, revenue or fiscal matters is extraditable. Yet there has to be a criminal offence, and that offence must be so recognised under the laws of both countries. No criminal offence, no extradition under the treaty.
Grounds for refusal
Article 9 of the Extradition Treaty specifies four grounds for refusal of extradition. These are if the person to be extradited satisfies the requested country:
- That the request was a facade for persecution of the person concerned on account of his race, religion, nationality or political opinion;
- That prejudice will be caused to his trial or that he is likely to be punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality or political opinion;
- That “it would, having regard to all the circumstances, be unjust or oppressive to extradite him” by reason of –
- the trivial nature of the offence,
- long delay in making the request, or
- “the accusation against him not having been made in good faith in the interests of justice” (This was the ground on which Bolywood Music Director Nadeem Akhtar Saifi’s extradition was denied by the British House of Lords in 2000.); or
- That the offence is a military offence, and “not an offence under general criminal law”.
Challenge facing India
All that the above ED-IT cases indicate is that Modi is suspected of having committed violations, even large-scale violations, of taxation/revenue/fiscal laws. However, for the Extradition Treaty to be invoked, it has to be established, under our criminal laws, that Modi is “accused” of a criminal offence under Article 2; the offence must also pass the test of double-criminality, i.e., it must a criminal offence in both the UK and India; and that none of the grounds for refusal of extradition – especially that “the accusation against him not having been made in good faith in the interests of justice” – apply to his case.
In an alleged ‘Witness Statement’ filed by Rajasthan Chief Minister Vasundhara Raje in the UK on behalf of Lalit Modi, she seems to have claimed that he was being unfairly targeted with ED/IT investigations. If this document is true and admissible, it will almost certainly be used by Modi in his defence were India to initiate formal extradition proceedings in the UK after the relevant cases are filed back home. Citing Raje’s statement, he can ask the British authorities or courts to refuse extradition for want of good faith on India’s part, to the utter embarrassment of the Narendra Modi government.
Apart from the failed Saifi extradition, one recalls the case of Ravi Shankaran, a relative of former Navy chief Admiral Arun Prakash, who ran off to London after the CBI registered the war room leak case in 2006. The UK Home office issued an order of extradition against Shankaran but he moved the local courts. The Crown Prosecution Service, which represented India, argued before the UK High Court that the CBI had substantial evidence proving Shankaran’s active role in leaking Indian war room secrets to arms dealers and that hence he deserved to be extradited to India. However, the Queen’s Bench division of the UK High Court held last year that the British Home Office order of extradition was invalid for want of a prima facie case. This was in view of the CBI’s reliance on hearsay evidence, in regard to certain critical e-mails.
The court also held that the European Human rights standards of Articles 5 (personal liberty) and Article 7 (fair trial within reasonable time) of the European Convention on Human Rights (ECHR) have not been met. Being a democracy, India is bound by these international standards, the Court said. In view of the ECHR-related observations, the Crown Prosecution Service advised India not to go on appeal to the UK Supreme Court, advice India has accepted. It is interesting to note that during the extradition proceedings, “the District Judge at first instance was of the view that, but for adequate undertakings, extradition potentially followed by many years’ pre-trial detention, would constitute a ‘flagrant breach’ of the Appellant’s rights under Article 5 ECHR,” a fact pointed out by the House of Lords Select Committee on Extradition Law in its Second Report of February 25, 2015.
Five years after Lalit Modi fled India, it is unfortunate that the ED – operating under successive governments – has yet to file a chargesheet in any of the cases against him. Unless the Government of India does its homework and prepares its case thoroughly, it is clear that all talk of extraditing Lalit Modi is premature.
The writer is a former Professor of International Studies, JNU Jaipur, currently Director, School of Law & Governance, Jaipur National University, Jaipur