Opinion

Untangling the Bollygarch extradition knot

Abhinav Kumar | Updated on June 09, 2021

Mehul Choksi behind bars in Dominica

The Vijay Mallya, Nirav Modi, Mehul Choksi cases highlight the legal hurdles in extraditing fugitive offenders

Fugitive offender Mehul Choksi is once again in the news. He was arrested in the Caribbean island of Dominica for illegal entry. After his arrest, India moved to repatriate him.

However, this whole episode highlights the hurdles in repatriation law and the legal battles that India has to surmount to extradite the runaway billionaire and bring him to justice in India.

Mehul Choksi and his nephew Nirav Modi, wanted in the ₹13,500-crore Punjab National Bank loan fraud case, fled India in January 2018. Choksi, the owner of defunct jewellery giant Gitanjali Group, became a citizen of Antigua through a government-run scheme. The recent allegation is that he was flying to Cuba before getting arrested in Dominica.

Citizenship Act, 1955

Section-9 of the Citizenship Act says about the Termination of citizenship. Clause (1) states that “any citizen of India who by naturalization, registration or otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India.”

However, the proviso states this sub-section shall not apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs.

Lawyers of Mehul Choksi argued the same before Dominica’s judiciary and asked for the bail. However, Indian government stated that he is a fugitive offender and cited the Interpol notice against him.

The legislative intent behind The Fugitive Economic Offenders Act, 2018 was to deter fugitive economic offenders from evading the law in India by staying outside the jurisdiction of Indian courts, to preserve the sanctity of the rule of law in India. According to Section 2 (f) “fugitive economic offender” means any individual against whom a warrant for arrest in relation to a Scheduled Offence has been issued by any Court in India, who:

(i) has left India so as to avoid criminal prosecution; or

(ii) being abroad, refuses to return to India to face criminal prosecution

And according to Section-4 of the same Act of 2018 Application for declaration of fugitive economic offender and procedure regarding the same has been laid down. Section-5 deals with the attachment of property. Choksi’s case is the classic offence under the said Act.

The eight-member team from India consisting of officials from the External Affairs Ministry, CBI and ED flew to Dominica to bring back Choksi if the Dominica court cleared his deportation. However, the Dominica High Court adjourned the hearing on Choksi’s habeas corpus petition. In the separate proceeding for the illegally entering into that country, a Dominica magistrate’s court also refused Choksi bail plea. His lawyers argued and cited that other non-nationals had received bail for similar matters. However, the bail was denied citing the Interpol red corner notice against Choksi.

Meanwhile Antiguan PM Gaston Browne urged Dominica not to repatriate Choksi to Antigua, reiterating that he needed to return to India to face criminal charges.

According to the Ministry of External Affairs, India currently has 47 Extradition Treaties in force. India also has Extradition Arrangements with the 11 countries.

An Extradition treaty is a formal procedure where one state agrees to surrender an accused who fled the parent state to avoid prosecution there. However, the process is difficult and complex.

India does not have an extradition treaty with either Antigua or Dominica so it is difficult to say how this legal battle will pan out. So whether Choksi will be deported or not is unclear despite 313 active Interpol ‘red notices’ issued against him.

The repatriation procedure is based on the guidelines of the External Affairs Ministry, which enables government authorities to bring fugitive offenders from abroad to justice. But the road ahead is filled with uncertainties in the absence of a treaty with the host country. This whole saga exposes the fragility of the law of nations.

The way forward

Fugitive offenders such as Vijay Mallya and Nirav Modi have made a mockery of global legal systems.

The need of the hour is cooperation between international agencies and countries regarding deportation of fugitive offenders.

The Modi-Choksi case is an example of how fugitive offenders use legal loopholes to escape judicial proceedings.

Moreover, there is a need for a global law where extradition treaties can be waived while dealing with fugitive offenders under the guidelines of internal agencies. There should be no safe havens for fugitive offenders. Law must take its due course.

The writer is a Delhi based law and policy expert. Views expressed are personal

Published on June 08, 2021

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