The Union government is likely to still face an interminable wait in its pursuit of former cricket czar Lalit Modi despite the Enforcement Directorate finally obtaining a non-bailable warrant (NBW) for his arrest from a Mumbai court on Wednesday.
Though the warrant was issued on the grounds that Mr. Modi was not responding to the ED’s summons in an alleged case of money laundering, it is learnt a number of procedural hurdles may come in the way of his extradition from the U.K.
For the ED, pursuing the NBW means a change in procedure. In the usual course, for several other cases pending against Mr. Modi, the ED had to go through the Union Home Ministry to serve summons on him through the U.K. authorities. However, it is an entirely different procedure when it comes to seeking execution of non-bailable warrants against those residing abroad.
A 2009 circular by it stipulates that the Ministry does not undertake service of non-bailable warrants of arrest as it would amount to the extradition of the individual. “The requests for extradition are based on certain legal procedures contained in applicable treaties negotiated on the basis of the International Principal of Extradition. Such requests are to be forwarded to the External Affairs Ministry,” the guidelines say.
This is likely to make things more difficult. One may recall that the External Affairs Ministry has in the past been hesitant to get involved in the tangle surrounding the former IPL commissioner. When his passport was restored by the Delhi High Court in 2014, after previously being revoked by the ED in 2011, there was confusion over who actually had to appeal against the verdict. The Ministry insisted that it was only acting at the behest of the Enforcement Directorate since the matter involved the passport office.
Even under the UPA, in fact, the Ministry never opted to pursue an extradition, though Mr. Modi failed to heed at least three ED summons. One reason given, according to reports, was that “extradition is a tortuous process involving the judicial process of that country”.
The money laundering case, registered by the ED in 2012 on the basis of an FIR filed by the former BCCI chief N. Srinivasan with the Chennai police in 2010, involving about Rs. 2,200 crore, is the ED’s best chance of getting Mr. Modi since, according to officials, money laundering is a criminal offence in both India and the U.K.
Though the dual criminality clause is key to initiating extradition proceedings, the accused have several grounds of defence, as provided under Article 9 of the U.K.-India Extradition Treaty (1993). These include if the extradition request is a facade for the persecution of the person concerned, whether it would be unjust or oppressive to extradite him, the trivial nature of offence, a long delay in making the request or if the accusation has not been made in good faith in the interests of justice.
The last was the ground in which Bollywood music director Nadeem Akhtar Saifi’s extradition was denied by the British House of Lords in 2000. Saifi was wanted for the murder of T-series honcho Gulshan Kumar in 1997.
