Explained: How Nirav Modi can avoid extradition to India even after losing appeal

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After over two years, Nirav Modi, the fugitive diamond businessman, who fled the country and took refuge in London is a step closer to being extradited to India. On Wednesday, the High Court in London ruled that his risk of suicide is not such that it would be either unjust or oppressive to extradite him.

Lord Justice Jeremy Stuart-Smith and Justice Robert Jay, who presided over the appeal hearing at the Royal Courts of Justice, said in their verdict that District Judge Sam Goozee’s Westminster Magistrates’ Court order from last year in favour of extradition was “sound”.

“Pulling these various strands together and weighing them in the balance so as to reach an overall evaluative judgment on the question raised by Section 91, we are far from satisfied that Mr Modi’s mental condition and the risk of suicide are such that it would be either unjust or oppressive to extradite him,” states the ruling, handed down remotely.

“It may be that the main benefit of the appeal has been to obtain the extensive further [Indian government] assurances that we have identified in the course of this judgment, which render the position clear to Modi’s advantage and the District Judge’s decision supportable,” the judges ruled.

The 51-year-old Modi, who is facing charges of fraud and money laundering, amounting to an estimated $2 billion (Rs 13,758 crore) in the Punjab National Bank (PNB) loan scam case, is currently lodged at Wandsworth prison in south-west London.

Does this mean Nirav Modi will be brought to India where he will be lodged at Mumbai’s Arthur Road Jail? Is this the end of the long saga of bringing back the fugitive diamond merchant home?

According to legal experts, that’s not the case and it’s not over yet. So, what’s exactly is next for Nirav Modi?

Appeal Britain’s Supreme Court

All is not lost for Nirav Modi after he lost his appeal against his extradition to India.

According to legal experts, the 51-year-old still has a few options before he’s extradited to Mumbai’s Arthur Road prison. One of the possibilities is to appeal before Britain’s Supreme Court.

If Nirav Modi chooses this route, he has only 14 days to make his appeal. However, it’s not as easy as just filing an appeal. The appeal can happen only if the High Court agrees that his case involves a point of law of general public importance.

This means that Nirav Modi’s legal team will have to prove that his case is of public importance for the court to even hear him out.

Human Rights Barrister and head of Trent Chambers, Usha Sood, was quoted as telling India Today that this was no easy task and, “extremely difficult to surmount”.

She said, “In most cases lawyers do not advise this route.”

Appeal to European Court of Human Rights

Another option for Nirav Modi and his team is to take the matter to the European Court of Human Rights.

Based in Strasbourg, France, the European Court of Human Rights (ECHR) is the court of law of the Council of Europe. It ensures that member states of the Council of Europe respect the rights and guarantees set out in the European Convention on Human Rights.

Individuals who believe their human rights have been violated and who are unable to remedy their claim through their national legal system may petition the ECHR to hear the case and render a verdict.

This means that Nirav Modi can approach the ECHR and apply for an injunction against the UK government on the basis of his fundamental human right being at stake.

Political asylum

If these two options don’t work out, the diamantaire can also seek political asylum in UK.

Political asylum is the right to live in a foreign country, and is given by the government of that country to people who have to leave their own country because they are in danger of persecution.

Nirav Modi would need to prove that he is in danger of persecution in India if he chose this route.

Interestingly, Modi had reportedly pursued this route back in 2018. According to a Financial Times report, Nirav Modi had tried to claim asylum from what he said was political persecution. Moreover, NDTV had reported that the jeweller had attempted to hire a lawyer who could help him apply for asylum in the UK. He had reportedly approached at two law firms in London.

Nirav Modi case

Nirav Modi’s extradition to India is based off the PNB scam. Modi and his uncle, Mehul Choksi — who has taken up citizenship of Antigua and Barbuda — are accused of routing transactions of about Rs 13,700 crore through fraudulent Letters of Undertaking (LoUs) of Punjab National Bank (PNB).

Both of them left India in the first week of January 2018, weeks before the scam was revealed.

In May 2018, the Central Bureau of Investigation and Enforcement Directorate had registered FIRs against the fugitive diamond merchant, and in March 2019, he was arrested in central London by UK authorities and imprisoned at Wandsworth Prison in south-west London.

In February 2021, his extradition was approved by the court and in April of that year, the UK government too had agreed to his extradition. However, his legal team filed an appeal in the High Court in London on the grounds of his mental health. His defence team argued that his mental condition had deteriorated.

With inputs from agencies

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