India-UK extradition

I thoroughly enjoyed delivering a two-part lecture on the India-UK extradition framework to students of Chanakya National Law University, Patna. Over the last few years, high profile cases of Vijay Mallya and Nirav Modi have generated much interest in the process of extradition.

Although in the UK it has been extradition requests from the US that garner a lot of media attention and buzz among legal professionals, extradition requests from India feature prominently in case law. It was in this context that four years ago I co-wrote hashtag Escaped: True Stories of Indian Fugitives in London which takes a close look at some of the major cases of extradition since 1950.

The students were eager to understand the (limited) role of the executive in extradition requests coming from Category 2 Type B countries, which includes India among others. There were also questions on sovereign assurances, human rights conditions, and the necessity to establish a prima facie case. Countries like US, Canada, Australia do not have to show a prima facie case, but that does not mean that extradition requests from these countries are not fiercely contested.

As far as India is concerned the bar is very high to show that extradition to India will breach an individual's human rights. Arguments revolve on Article 3 ECHR - in the context of prison conditions in India - but courts give their approval based on assurances that the extradited person will be provided every facility to ensure their human rights are protected. In the Nirav Modi case the high court observed that the facilities promised to the jailed billionaire in Arthur Road jail were better than Wandsworth prison in the UK.

The bar for Article 6 ECHR (right to a fair trial) is perhaps much higher than Article 3 which explains why requested persons tend to argue forcefully on the latter than the former. Appearing before Justice Chamberlain, who heard Nirav Modi's appeal against the trial court's decision to extradite him, Helen Malcolm, representing Govt of India, told the court that there has never been a successful Article 6 claim relating to India.

However, in the latest case of Sanjay Bhandari the high court overturned the Westminster Magistrates' Court order and discharged him on Article 6 ECHR. Interestingly, it was the Section 54 of the Black Money Act 2015 that made the court arrive at this conclusion. The high court ruled that the reverse burden and standard of proof amounts to a fundamental breach of Article 6 and hence Bhandari got away.

It has been four years since Escaped: True Stories of Indian Fugitives in London hashtagwas published, but preparing notes for these two lectures reminded me of the several hours spent listening to complex arguments and submissions from the top names in the field like Anand Doobay, Edward Fitzgerald, Ben Watson, Claire Montgomery, Toby Cadman, Ben Keith, Mark Summers, Aaron Watkins, Jessica Jones, Peter Caldwell.