Nirav Modi Extradition to India: The Way Forward

“Further to the Vijay Mallya case, India now has a template to refer to when dealing with the extradition procedure of Nirav Modi from the UK. The good news is that the UK’s Home Secretary – Sajid Javid, has already set things in motion, by agreeing to the extradition request. However, if Nirav Modi has applied for asylum, then the extradition proceedings will not likely begin until the asylum application has been rejected. A person who applies in the UK for asylum is given interim asylum and his status as a legal resident of UK remains until his application is finally determined and he is given asylum or refused. The next step which the Indian government needs to take is to make formal written representation to the relevant asylum department at Home Office setting out the grounds why Nirav Modi should not be granted asylum. Granting an asylum to a person facing an allegation of fraud in India would be an abuse of process.

Mr Modi is now reportedly operating another diamond business from Soho in Central London, and that would imply him having successfully secured a National Insurance Number – a form of tax reference for operating a business / working in the UK. This is despite the fact that there is an Interpol red notice in place – to locate and provisionally arrest an individual pending extradition.

It has to be clarified that an Interpol red notice is not an international arrest warrant, but merely a provisional request to detain an individual. Interpol cannot compel any member country to arrest the individual and it is purely optional and dependent on local laws.

All in all the next steps are straight forward. Once Mr Modi’s asylum application is rejected, he will be subjected to a re-run of the Vijay Mallya case proceedings – starting from being directed to Westminster Magistrate, taken into provisional custody, applying for bail, and then the court will hear his plea. Once the court rules for his extradition, the Home Secretary will be expected to once again sign the order for compliance.

At this stage, the case looks straightforward, and complications can only arise if Mr Modi had acquired any European or other international citizenship. In such cases, there might be a long battle ahead, subject to various international and extraterritorial legalities involved.”

Sarosh Zaiwalla, Founder and Senior Partner at Zaiwalla & Co. LLP

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