Nirav Modi Arrested: What Happens Next in the Extradition Process?

Now that the fugitive diamantaire has been arrested, here are the next steps in the extradition process.

This comes as a major boost to India’s efforts to bring back the fugitive diamantaire.

(Photo: The Quint)

Nirav Modi, the main accused in the billion-dollar PNB scam case, has been arrested in London, Scotland Yard said on Wednesday, 20 March. This comes as a major boost to India's efforts to bring back the fugitive diamantaire.

The arrest came days after a London court issued an arrest warrant against him in response to a request by the Enforcement Directorate for his extradition in a money-laundering case.

Here’s what comes next in the extradition process.

Nirav Modi Extradition: What’s Been Done So Far

• Appropriate authority from India sends extradition request to UK – DONE
• UK Secretary of State certifies the request, sees if formalities have been complied with, sends the case to the Magistrate’s Court – DONE
• UK Magistrate’s Court reviews request to see if extradition offence made out, conditions for arrest satisfied – DONE
• UK Magistrate’s Court issues arrest warrant – DONE
• Nirav Modi arrested – DONE

What Happens Next?

Nirav Modi as been produced before the Westminster Magistrate’s Court for preliminary hearing and to fix dates for the hearings – the court has set 29 March as the next date of hearing.

In a surprise move, the court has rejected his bail plea, meaning he will remain in custody till 29 March.

CLARIFICATION: On the basis of previous cases, the video above notes that Modi was likely to get bail, but now we know that he hasn’t been granted bail. However, this does not affect the rest of the extradition process as described in the video and explained below.

Proceedings Before Magistrate’s Court

• Hearings will eventually take place in the Westminster Magistrate’s Court. UK’s Crown Prosecution Service will argue that there is prima facie evidence to show that Modi has committed an extradition offence (in this case, fraud) and that there are no bars to extradition – they will use evidence provided by Indian authorities for this, including the CBI, and Enforcement Directorate. Modi will argue that there is no evidence to show that he has committed an extradition offence, that the case is politically motivated, and that extraditing him would lead to a violation of his human rights.
• Westminster Magistrate’s Court will assess whether there is prima facie evidence to show that Modi has committed the offences he is accused of. The Magistrate will also assess Modi’s arguments against extradition, including whether his human rights would be violated. UK courts have denied extradition on the basis that jail conditions in India are inhumane – but this argument was not accepted in Vijay Mallya’s case, and was rejected on appeal in Sanjeev Chawla’s case as well.
• One potential complication in this case is that Modi has allegedly filed an asylum application. India is generally considered ‘safe’ for asylum purposes in the UK, but he can still argue that he is being prosecuted for political reasons, and will be mistreated in prison.
• Timeframe: If the UK authorities decide to hear the asylum application, the extradition proceedings will be delayed till this is completed. The extradition proceedings in the Magistrate’s Court will take at least a year, if not longer, and could be delayed by another year if the asylum application is heard.

Decision of Home Secretary

• If the Magistrate’s Court finds that the extradition request has merit, it will be forwarded to the UK Secretary of State for Home Affairs.
• The Home Secretary has to see if there are any statutory bars to extradition. These are very limited, and include the person potentially getting the death penalty, or being tried for other offences rather than just the extradition offence.
• Modi can also submit arguments to the Home Secretary as to why he shouldn’t be extradited.
• Timeframe: If there are no statutory bars, the Home Secretary will approve Nirav Modi’s extradition. The process is supposed to be completed within 2 months, though it can be extended at the Secretary’s discretion.

Appeals

• If the Magistrate’s Court forwards his case to the Home Secretary, Nirav Modi can appeal this in the UK High Court within two weeks of the Magistrate’s decision. However, this appeal will not be heard immediately, and will only be heard one the Home Secretary has made a decision.
• If the Home Secretary approves Modi’s extradition, he can appeal this in the UK High Court within two weeks of the Secretary’s decision. The UK High Court will then hear this appeal as well as his appeal against the Magistrate’s decision together. Modi will be able to make all his original arguments again on why no extradition offence is made out, and why his rights would be violated.
• If the UK High Court upholds the decision to extradite him, then Modi can appeal to the UK Supreme Court within two weeks of the High Court’s decision. The Supreme Court will only hear the appeal if it involves a significant question of law.
• Timeframe: The appeals will add at least another year if not more to the process.
• NB: India can also file appeals in these courts if extradition is refused.

Extradition by Home Secretary

• Once all avenues of appeal are exhausted, the extradition request returns to the Home Secretary, who has to make the final order for extradition.
• Timeframe: They are supposed to order extradition within two months, though this can be deferred at their discretion. This is what has happened in the case of Tiger Hanif, for instance.