Choksi Circus: India Must Not Get its Hopes High on His Return

Mehul Choksi’s extradition to India hype was misplaced to begin with. It’s unlikely to become reality anytime soon.

File image of Diamantaire Mehul Choksi.

(Photo: The Quint)

A fugitive Indian diamantaire goes missing from an adopted Caribbean country. He sails to a neighbouring country some 100 nautical miles away on a yacht—only to surface behind bars with visible injuries and wounds.

A Bulgarian woman is stated to be ‘girlfriend’ of the conman by the Prime Minister of the island nation from where he went missing. The defence lawyer calls her a ‘honey trap’. The plot involves twists and turns with speculations of abduction attempt for ransom to a possible top secret Indian mission that got botched up.

Adding to the high voltage courtroom drama in the small tropical nation between the French islands of Guadeloupe to the north and Martinique to the south, a Bombardier Global 5000 Qatar Executive business jet lands at the Douglas Charles Airport in Dominica. The domestic politics of two neighbouring Caribbean nations get all riled up over the absconding Indian diamond trader.

The Choksi Circus—They Came. They Saw. They Returned.

A Salman Khan-starrer movie in the making perhaps, except the jet has now returned via Madrid to Delhi with the special agents onboard, but without the wanted Mehul Choksi. If it’s any consolation, the Choksi saga has made it to the Dominican entertainment industry with Calypso singer ‘Trendsetter’ grabbing eyeballs as he hums and asks ‘Well everybody waiting to see, What they going to do with Mr. Choksi?”

The past few days saw whirlwind breaking news drama unfold across most television prime time studios that chose Choksi over Covid. As a diplomat cheekily remarked, perhaps it had forced several scribes to look closely at the world map and figure out where exactly was the thriller being shot and that Antigua & Barbuda and Dominica were different countries. Political opponents, tour operators to local artists in the Caribbean nations enjoyed the overseas spotlight as Delhi-Noida studios reached out to them to enlighten about the blockbuster in the making.

So why exactly did the eight-member multiple agency team including officials of CBI and MEA that flew all the way to Dominica—some 14000 kilometres away, a journey of more than 24 hours—return without the scamster wanted in the multi-crore Punjab National Bank (PNB) fraud case?

Because the hype of Mehul Choksi’s extradition to India was misplaced to begin with and is unlikely to translate into reality anytime soon.

Planned Escape or Abduction?

The action began on 23 May when local media reported that the Indian-born Choksi disappeared from Antigua and Barbuda. He was detained by Dominican police reportedly three days later on charges of illegally entering the island. 62 years old Choksi wanted by CBI and ED on charges of bank fraud, criminal conspiracy, criminal breach of trust, and money laundering bought Antigua and Barbuda citizenship through the Citizenship by Investment Program in 2017 and has been living there since 2018 after fleeing Indian agencies.

Choksi, who is housed in the Dominica-China Friendship Hospital under police guard, faces two separate legal proceedings in the eastern Caribbean island country, a Commonwealth member.

A magistrate’s court in the Dominican capital Roseau has posted for 14 June the hearing on the government’s charge that the businessman entered the country illegally.

Choksi’s lawyers have moved the Eastern Caribbean Supreme Court in the Dominican High Court, alleging that he was abducted and asking him to be sent back to Antigua whose citizenship he has. The higher court that has to decide if Choksi was arrested illegally by the Dominican Police and to which country he should be sent back, is expected to hear the matter only around 1 July.

Choksi’s lawyers are challenging the denial of bail to their client on ‘illegal entry charges’ by the Magistrate Court. Hours after the Dominican home ministry on 27 May suggested that Choksi would be repatriated to Antigua following verification of his Antiguan citizenship details, the High Court had restrained the Dominican government from extraditing Choksi and asked the police to allow him to meet his legal counsel.

Did Indian Team Jump the Gun?

“We cannot put a timeline to it. Portuguese laws laid down reasonably clear-cut timelines within which the processes were to be completed. So we had a clear sense of time. But In most Commonwealth countries there are no timelines prescribed for such processes and the wheels of the judiciary could take their own time to move,” cautions 1992 batch IPS Rupin Sharma, Author of the book Extradition.

The process is further complicated with Antiguan Prime Minister Gaston Browne alleging the opposition of being politically funded by Choksi and his cabinet stating that Dominica should hand over the diamond trader directly to India instead of returning him to the neighbouring country.

So did the Indian team then jump the gun as it landed up in Dominica or is there more than meets the eye in the timing of the arrival of the private jet in Dominica on May 29?

The Extradition Conundrum

It is not the first time that Indian agencies have perhaps tried counting the chicken before they arehatched. There have been more than half a dozen cases where despite assurances and claims Indian agencies have returned back with no success in extradition cases, experts say. Some cases of fugitives being handed over by the Emirates or Saudi were exceptions with assurances from the all prevailing monarchy kept and judicial processes not posing an obstacle.

More than a decade and half ago a five member team, that landed up in Portugal immediately after the arrest of Abu Salem in Lisbon, to get the 1993 Mumbai blasts convict back to India, rubbed off the Portuguese government the wrong way. Unhappy with the FBI being brought into play the Portuguese government sent a message to to the Indian embassy in Lisbon to ask its security officials to take back off. That team returned empty handed.

Key to any successful extradition is the process which commences with an administrative examination of the request which in this case is missing since India is yet to send a formal request to the Dominican government. This initial step is usually followed by a judicial process and an executive decision.

Choksi No Stranger to Legal Loopholes

India’s request with Antigua with which it worked out an extradition arrangement in 2018, is sub judice with the next hearing scheduled in November of 2021. Unlike some Arab countries in the Middle East where there may be scope of circumventing the process, a judicial determination of the request is common to most Commonwealth nations. This is followed by executive decisions to be signed off by the host government.

But like in the case of Vijay Mallya or Nirav Modi, even when the decks are cleared by the Home Office, writ jurisdiction arguing on grounds of human rights to prison conditions or fear of persecution could be used as shields by the defendants to prevent, thwart or delay their extradition. Choksi is no stranger to these legal ropes as his case is heard in Antiguan courtrooms.

Another big challenge for any extradition case is ‘dual criminality’. An act which is alleged to be crime committed on the soil of a requesting country must be an offence under law of the requested country, too, for the wanted fugitive to be arrested.

The arrest—if made at all—will also require a prima facie offence to be established by a court of law in the host country. An Interpol Red Corner Notice in the absence of dual criminality and also Extradition Treaty is of little use unless the fugitive’s whereabouts are unknown.

“If the whereabouts of a fugitive are known, it is better to send an extradition request straight away rather than going for a Red Corner Notice” said Rupin Sharma. A case in point is banned televangelist Zakir Naik who continues to be harboured by Malaysia despite India’s efforts to extradite him on charges of inciting communal violence and hate and money laundering.

“Let me emphasise that India remains steadfast in its efforts to ensure that fugitives are brought back to India to face justice,” said MEA spokesperson Arindam Bagchi recently.

Next Steps for Indian Government

It is important to note that as per section 19 of the Dominican Extradition Act, even after warrant for surrender is signed by the executive, the fugitive is allowed 15 days to appeal in a higher court or file a writ for habeas corpus. India presently does not have an extradition arrangement with Dominica but provisions under the Commonwealth framework can apply if and when the judicial process is completed, and the Dominican government gives a nod to deport or extradite Choksi.

“India should request the Antiguan government to revoke Choksi’s citizenship since this is a pending matter and the Prime Minster has already given a notice to Choksi that he has obtained Antiguan citizenship by misrepresentation.

“India should pursue extradition proceedings in Antigua anyway even in Choksi’s absence. Once Antigua revokes his citizenship, his default citizenship by birth can be claimed by New Delhi to strengthen its cases, for deportation” suggests Rupin Sharma “If citizenship hangs in balance and he remains a stateless citizen, that does not preclude Dominica from extraditing any person to a country where he has committed a crime. Citizenship is important for deportation not for extradition,” he adds.

Indian Government Should Not Waste Time

“Since he is in Dominica, make an extradition request straight away and not lose time. Even if there is no bilateral treaty currently with Dominica, we can fall back on Commonwealth laws or reciprocity to form the basis of our extradition requests. If we don’t make this request and wait for the current court proceedings in Dominica to end, then we are only delaying the process further. Importantly we must press upon Dominica that Choksi is a high flight risk category (having already absconded from law in India and Antigua) and so must remain in prison till a decision is made on the extradition request,” says Rupin Sharma who has played a key role in getting back some of India’s most wanted fugitives.

So, despite India’s best efforts, it will be some time, maybe a long time, before the public can sit back with popcorns to watch the return of the native on TV screens.

For now can we go back to focusing on our pandemic challenges please?

(Smita Sharma is an independent journalist and tweets at @Smita_Sharma. This is a report and analysis. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)