Siddharth R Gupta, Advocate of the Supreme Court, studied the laws of UK and India for News18 and explained the legal hurdles related to the extradition of Nirav Modi. According to Gupta, there is still a long way of extradition due to legal provisions. However, the Government of India is also fighting the case with full force. The court has referred the matter to UK Foreign Minister Preeti Patel. Now she will take a final decision whether Modi should be extradited or not.
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First know the legal framework of extradition1. Extradition Act, 1962 (Extradition Act) governs extradition process in India. Under its Section 3 (3), there is a legal basis for extradition from those countries with which India has an extradition treaty.
2. In the UK Extradition Act 2003, the extradition process is in categories 1 and 2. India falls in category 2, so upon receipt of extradition request from India, there is a need for the decision of the nominated court as well as the UK foreign minister.
3. In the case of extradition to Category 2 country (as is the case in India) the process of extraditing the person concerned is something like this. In this, the UK Magistrate Court (District Court) should be satisfied that there is sufficient evidence against the accused under section 84 of the UK Act. Also, Article 3 and Article 6 of the European Convention on Human Rights conform to the Convention rights. In such a situation, the court decides to allow extradition and sends the case to the foreign minister under section 87 (3). This is what the court has done right now.
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4. The Foreign Minister will now have to decide whether to extradite the person or not within 2 months as per Section 93 mentioned in the Act. However, the Foreign Minister will have to consider the reasons stated in this section. The main reason for this, in the Category 2 country (India) for the crime for which the case is being prosecuted, the accused will not be extradited if there is a death sentence there. Similarly, the type of crime has to be seen. As such, he will be prosecuted only for the crime for which he has been extradited. That is, he will not be prosecuted for any other crime in India.
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Action will be taken in this way in Nirav Modi case
The Magistrate Court of Westminster has referred the case to the Foreign Minister under section 87 (3) of the UK Extradition Act of 2003. That is, Britain’s Foreign Minister Preeti Patel will decide on whether Modi should be extradited eventually. Under the provisions of s 92 (2) (a) and (b) of the Act, Nirav Modi will be informed that he has the right to appeal to the UK High Court against the decision of the Magistrate Court. The notice of appeal to Modi should be given as per the rules of the court within 14 days of receiving information under S. 100 (1) or (4) regarding the decision on extradition from the Foreign Minister. Such an appeal before the High Court will go for hearing only after the Foreign Minister has taken a final decision. After the decision of the UK High Court, Modi can appeal again to the UK Supreme Court. However this right is not absolute and if the UK Supreme Court refuses to pray for leave, then the appeal will be dismissed.
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Modi may take cover of extradition cases including Julian Assange
Modi can make several strong arguments to defend the Westminster Magistrate Court’s order to extradite India.
These defenses are as follows:
1. If the physical or mental condition of the accused is not right that extraditing him would be unjust or oppressive. Based on this logic, Wikileaks founder Julian Assange was not extradited from Britain. However, the Magistrate Court has already considered the issue that Nirav Modi will have proper medical facility in Arthur Road Jail, Mumbai. Therefore, on the basis of this argument, he will not be able to defend easily before the Appellate Court. Nevertheless, a diplomatic note of assurance is to be filed by the Government of India in this regard before a UK court.
2. Article 3 of the European Convention on Human Rights sets certain conditions regarding the condition of prison in the country of extradition. The poor condition of the prisoners and the crowded prisons are always pleaded by the person being extradited from the UK to India and Modi can certainly present it in his favor. This argument was also given by Sanjeev Chawla who was extradited in February 2020. Since District Judge Samuel Goozy has already mentioned in his judgment that natural light and ventilation conditions at Arthur Road Prison are better than London’s Wandsworth Prison, this argument may also prove to be weak in the UK High Court.
3. Prima facia cases are not mandatory for EU member states and Category 2A countries. But India is a country coming under category 2B, so it is important to prove that there is prima facie evidence in the case of convicting Modi in India. Modi can firmly say in the court that the facts the Indian government is telling are not worthy of prosecution.
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These methods can save Modi in legal betting tricks
1. Asylum means to apply for a refugee
To ensure protection from any prosecution in your country, a request to remain as a ‘refugee’ in the UK is called asylum or asylum. Modi can claim asylum under Section 121 of the 2003 Act. It clearly mentions that a person cannot be extradited until a final decision is made on the plea to grant him as a refugee. To seek asylum, he has to prove very clearly that the punishment for the crime related to India will be more than that of Britain. The jail situation in India is very bad or it will be politically oppressed in India.
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2. Measures to go to European Court of Human Rights
Modi can also appeal to the European Court of Human Rights (ECHR) on the basis of not having a fair trial in Britain. After Modi’s extradition to India, India can also go to the ECHR on the possibility of his ‘right to fair trial’ being violated.