NIRAV- EXIT: ANOTHER UK OBLIGATION?

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*Avantika Verma

AN UNRAVELLING OF EVENTS

India has requested for the extradition of its national Nirav Modi when he was tracked down in the west end of London after he fled from India. It is now before the Westminster Court in London to see if it is a fit case of Extradition. This request was made by the Indian government because this 48-year-old diamantaire was accused of fraud and money laundering of over 1.4 billion USD from State-run Punjab National Bank of India. The Bank stated that from one of its branches, few officials have fraudulently and unauthorisedly issued Letter of undertakings on behalf of companies belonging to Nirav Modi group to avail credit from overseas branches of Indian banks. After the fraud was detected, the bank then went on to file a police complaint against him. This was followed by an inquiry by the Central Bureau of Investigation. The Enforcement Directorate has attached all his assets worth ₹1873 crore under the Prevention of Money Laundering Act and has also seized the assets linked to him and his family. Post India’s request for extradition, UK has issued a provisional arrest warrant against him and has also rejected his plea for bail. But if we look at the extradition history between both the states, UK has only extradited one individual out of 28 requests since 2000. This is because of the several checks and balances in their legal system when it comes to extradition. But in our present case, it should be noted that UK is obligated to extradite this economic offender to India for various reasons stated hereafter.

HISTORY OF EXTRADITION BETWEEN INDIA & THE UNITED KINGDOM

Extradition is a process under which states surrender the offender to the requesting state where the offender has committed the crime. Treaties act as a basis for the enforcement of such a process between states. This further reflects common interest of the world to fight against crime and impunity. At various instances, it was held that a state is not under an obligation to extradite the offenders until bounded by a treaty to do so. And, in our present case, India and UK had signed an extradition treaty in 1992, which became effective in 1993. Since there exists an applicable extradition treaty between both the states, UK is bound to extradite the offender in the present dispute.

Additionally, the famous maxim ‘Aut dedere aut judicare’ (Latin: “either extradite or prosecute”) obliges the State parties to extradite the offender to the requesting state under International Customary law. To provide credence to the argument for customary status of this obligation, two justifications have been provided. Firstly, it has been observed that the principle has consistently appeared in multilateral treaties like Hague Convention, 2003, UN Convention against Corruption, which subsequently proves the customary status of the principle. Secondly, it has been suggested that the rule underlines an international duty to cooperate and fight against impunity. Due to the widespread recognition of this principle, many scholars even go to the extent of regarding it as a peremptory norm of international law.

Moreover, if we further observe, the general duty to cooperate is a well-established principle of International law and is frequently found in various legal instruments. Security Counsel Binding resolution 1373(2001) obligates the states to deny safe havens to criminals. Several successive Resolutions like 1456(2003) and 1566(2004) strengthen the obligation to bring the offender to justice by extraditing them to requesting state. It is an abuse of right to fight against impunity if one refuses extradition of a wrongdoer. The various binding resolutions of Security Counsel indicate that the UK, in the present dispute, should deny safe havens to India’s economic offender.

THE REQUEST FOR ASYLUM & THE OBLIGATION OF EXTRADITION

Nirav Modi has applied for political asylum in the UK with an intention to avoid prosecution charges that he will face in India, if extradited. It is very hard to succeed in an asylum claim from a democratic country like India. But, if Modi proves that there are chances of unfair trial or that India’s request is politically motivated, his claim for asylum may succeed. However, it is noted that courts normally presume the bona fide nature of the courts and refuse to inquire into the criminal justice system of the requesting state. This rule of non- inquiry prevents the fugitive from producing evidence to show that he will be denied fair trial, discriminated against on grounds of religion, political opinion or will be subjected to inhuman treatment in the requesting state. The Extradition Judge cannot go on to state that the trial in the requesting state would be unfair as it would indirectly question the competency of the judicial authorities of the requesting state. The interests of international community are not well served when the foreign nation requires the requesting state to prove its fairness of law and its enforcement. It was seen in In re Arton case that the court cannot allow the fugitive to argue on the lines that the requesting state will not act in good faith while making the request for extradition. The court is not competent to entertain such questions. Similar reasoning was also observed in the case of Mobarik Ali, where the offender was accused of fraud and forgery when he fled. The Supreme Court of India was of the view that refusing to extradite the offender on the basis of unfair trial would show Indian courts in bad light. Even in Jhirad v. Ferrandina the court opined that it is not the affair of the court to question the integrity of the judicial system of another democratic nation. Similarly, in our present dispute too, the UK must extradite the offender without having a doubt about the competency of judicial authorities in India.

REASONS WHY THE UK MUST NOT REFUSE EXTRADITION

Under the International law, state countries must not refuse extradition of an offender because of various reasons stated hereafter. Firstly, it is very important that the state countries must fight together to bring the offender to justice as he may pose serious peril mankind. It is only possible when there is international cooperation among states. Secondly, the requested state must follow the principle of reciprocity and extradite the offender as all international relations exist on this principle. Thirdly, it is more practicable to extradite the offender to the place where the offence is committed for better administration of justice and ascertainment of truth. Lastly, with the development in nations and improved conditions of criminal justice system, there are less chances of prejudice, thus creating an atmosphere for extradition of nationals to the requesting state. Similarly, it is now incumbent on the UK to not withhold Modi any longer, due to various legal and moral obligations stated above. Further this decision of extradition will pave way for better international relations between both the states and would also serve the interest of justice. Moreover, it would set a perfect example of international co-operation among states whenever there is threat to mankind.

Avantika Verma is a 4th year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow.

 
 

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