LONDON: It’s the way the law is loaded. For a requesting state to succeed in extradition, it must win on all counts; the requested person looking to block extradition needs to win on just one. That the Indian government won on all counts in securing an order to extradite Nirav Modi shows India hitting the winning path at last in an English extradition court.
The court has prima facie accepted India’s charge of fraud, of money laundering, of threatening witnesses, of tampering with evidence. It accepted that Indian courts would give Nirav Modi a fair trial. In a quirky observation, magistrate Samuel Goozee ruled that detention conditions proposed for Nirav Modi in India are not just adequate, but a good deal better than they are in Wandsworth prison where he has been detained for almost two years, since his arrest in March 2019.
Also read: Nirav Modi Trial: How CBI Secured Its Second Big Ticket Extradition After Setbacks For Decades
In response to Nirav Modi’s argument that he is suffering from depression and that he cannot get the care he needs in Arthur jail in Mumbai, the magistrate took the view that a move to the far better option of staying in Barrack 12 could actually lighten his depression. In any case, he observed, a degree of depression in jail is not unusual. Prisons are not expected to be the most cheerful places.
We’ve were reminded, just a few weeks ago, how critical it is to win on all counts. A magistrate denied the US request to extradite Julian Assange after accepting that there was a fair case on the basis of law and evidence to order extradition. It was denied on grounds of depression and a reported proneness to suicide. Those are the very grounds on which Nirav Modi’s legal team sought to block his extradition. Nirav Modi was beaten All to Nil – the only way.
What next?
That winning an extradition case is not the same as winning an extradition has become painfully obvious to the Indian government over Vijay Mallya. After losing the extradition case he sought asylum. Britain has an extradition law and an asylum law, Mallya leapfrogged from one to seek shelter under the other before anyone knew it. Mallya is unlikely to get asylum, but the move has bought him time.
Going by present indications, that escape route will be denied to Nirav Modi. But Nirav Modi is being propelled by his legal team towards yet another loophole – of escaping extradition on medical grounds. An ace of sorts visible already also on Mallya’s sleeves. But that is the shape of the last roadblock ahead in the cases both of Mallya and Nirav Modi before these two gentlemen can move residence to Barrack 12, Arthur Road jail, Mumbai.
The next step will be that the order by magistrate Samuel Goozee will be sent to UK home secretary Priti Patel. She will order extradition, as she must – she has no discretion over the decision. The home secretary only rubber-stamps the court’s order.
Once that order has been made, Nirav Modi’s team can launch an appeal to the high court. The high court would have to admit an appeal, and then consider whether to allow written submissions or oral submissions as well. The time frame for an appeals court order is likely to be months, not years.
If the high court upholds the Westminster court’s order for extradition, that then ends the legal process over extradition. Any appeal to the high court for leave to appeal to the Supreme Court is certain to be rejected, as it was in Mallya’s case. The Supreme Court in Britain is not an appellate court; it considers only issues of law that are of wide public interest.
An appeal could still be made to the European Court of Human Rights if Nirav Modi were to lose his appeal in the high court. That would be a move to buy time, and perhaps not a lot of time. Barring any freak side-stepping to the judicial process ahead, both Nirav Modi and Vijay Mallya should be on flights to India this year, in the company of some officers from the CBI and the Enforcement Directorate.
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