Nirav Modi has lost the first step of his appeal against his extradition confirmed by the magistrate's court earlier this year. But he hasn’t lost all the way through the appeal process yet, and if he does, he still has the asylum track left to switch to.
Nirav Modi’s written appeal to the High Court against the extradition order was rejected on Tuesday of this week. He would have five working days from then to make an application for an oral hearing.
In a similar move earlier, Vijay Mallya’s written appeal had been rejected. But he was allowed to make an oral appeal. It does not follow that Nirav Modi will be allowed to make an oral appeal but if he is, a date will then be set for a hearing to take place typically over a day, though in Mallya’s case it stretched over three days.
If Nirav Modi were to win his appeal following an oral hearing, he stays. But if he loses that appeal, it does not follow that he goes.
Nirav Modi would certainly seek leave to appeal to the Supreme Court. But his case would not go up to the Supreme Court, as Mallya’s did not. The Supreme Court in England is not a final appellate court as in India. It only rules on fundamental issues of law that are in the public interest. That would not cover an extradition case such as this.
Nirav Modi lost his extradition case on February 25 of this year. As the legal process goes, the court cannot actually order extradition because it is not an executive authority. It can only, as it did with Nirav Modi, write to the Home Secretary recommending his extradition. The executive order would be for the Home Secretary to sign, which she (Priti Patel) did on April 16.
It is on that basis that Nirav Modi filed an appeal against the extradition which was rejected at its first stage this week.
A confirmation of his extradition by the High Court would still leave two cards up his sleeve. One, the asylum route which Mallya has played. Second, the medical route which both Mallya and Nirav Modi are certain to play at some stage—if the asylum application in one case, and a likely asylum application in the other is rejected.
Mallya is seeking asylum on grounds of human rights, claiming the need for political protection against what he has called a political and media witch-hunt in India, an unfair legal process, and less than acceptable detention conditions. All these arguments were raised, and rejected, through the course of his extradition hearing. These were raised and rejected again in appeal.
And yet those very arguments are being raised and heard all over again in Mallya’s case by another court under another law. The stated view of the British government is that it is the executive and can do nothing in the face of a legal process in the courts that is independent of the government.
On the face of it, and in the here and now, this is an undoubtedly correct position to take. But it is the government that has created the present web of cases and the law that makes it easy for a wanted offender to stay on and on. For a government seeking extradition, the course is as difficult as it is expensive.
Nirav Modi is being represented by the same set of lawyers that Mallya had engaged. Anand Doobay, the main solicitor engaged by Mallya and Modi, has co-authored a book that includes a section on invoking the asylum law after losing on extradition. This was an ace waiting to be played all through the extradition process for Mallya, and through the Modi hearings, though in the Nirav Modi case the time for actioning the asylum process is not here yet – though it may not be far off.
And all that may yet not be the last word. There are still medical issues that both Mallya and Modi can raise at the last stage to block extradition. Preparations for those have been made all through the extradition hearings in each case. The wanted person has advantages at every stage—because the UK government has set up those advantages.
— London Eye is a weekly column by CNBC-TV18’s Sanjay Suri, which gives a peek at business-as-unusual from London and around.Read his other columns here
(Edited by : Ajay Vaishnav)