New Delhi: The Delhi Police’s attempted murder and kidnapping case against former R&AW officer Vikash Yadav could block any extradition attempt made by the US over the Gurpatwant Singh Pannun assassination plot, legal experts have told ThePrint.
Professor V. G. Hegde of the Centre for International Legal Studies (CILS) at Jawaharlal Nehru University (JNU) said that when an individual is already facing grave criminal charges in India, their extradition is difficult considering they will be facing trial here. “The cases here need to be resolved here first,” he told ThePrint.
He further said that “there are a number of domestic processes as well as diplomatic procedures that need to be fulfilled for an extradition request”.
Senior advocate Vikas Singh said that an extradition request for Vikash Yadav will be governed by India’s Extradition Act, 1962, as well as the extradition treaty between India and the US, signed in Washington in June 1997.
Since Yadav is now facing criminal charges in India unrelated to the charges brought by the US, advocate Singh referred to provisions of the 1962 law, as well as the extradition treaty, to assert that “in the present facts and circumstances, India does not have an obligation to extradite Vikash Yadav to the USA till his trial on the charges of extortion and kidnapping in Delhi is completed, and if he is convicted, till his sentence is completed”. A pending trial in India can take several years.
Meanwhile, senior advocate Vikas Pahwa said that since Vikash Yadav faces serious charges in both countries, extradition is “theoretically possible” under the US-India extradition treaty. However, he added that Yadav’s involvement in ongoing legal proceedings in India, including his 2023 arrest and bail this April for separate criminal charges, “complicates the matter”.
Pahwa referred to Section 31 of India’s Extradition Act, which allows the postponement of extradition until the completion of domestic proceedings.
Samudra Sarangi, partner at the Delhi-based Law Offices of Panag and Babu, told ThePrint that under Indian law, extradition is a detailed process. The extradition request is placed before a magistrate and the individual whose extradition is requested can object to the request on the ground that a criminal case is pending in India. The accused can then submit details of any pending criminal case in India.
Under India’s Extradition Act, when a magistrate considers an extradition request, it can be denied in specific circumstances. One of these circumstances, Sarangi said, is that the individual whose extradition is requested, is facing criminal charges in India.
Further, the extradition orders can be appealed all the way to the Supreme Court, he said, adding, “Before a magistrate gets involved, requests are filed through diplomatic channels and political will to see through extradition is a factor.”
For example, India has been pursuing the extradition of fugitive businessmen Vijay Mallya and Nirav Modi from the UK for years. A formal request regarding Mallya — accused in a Rs 9,000 bank loan default case over his defunct Kingfisher Airlines — was handed over to the UK authorities in February 2017 through diplomatic channels. The UK approved the request in 2019, and in April 2020, a high court there rejected Mallya’s appeal. However, Mallya continues to live in the UK. In April this year, the Centre reportedly discussed Mallya’s extradition with France, where he has properties, in case the liquor baron flees to the country.
Similarly, in the case of fugitive diamond merchant Nirav Modi, an accused in the Rs 11,000-crore PNB fraud case, India submitted an extradition request in August 2018. The UK home secretary approved his extradition in April 2021. In December 2022, he lost a bid to move the UK Supreme Court against his extradition to India, technically exhausting all his legal remedies to stay in Britain. His fifth bail application was dismissed by the UK high court in May this year. He is currently in a Greenwich prison.
Media reports in January had said that a team of CBI, NIA and ED will be travelling to the UK to expedite the extradition process of Mallya and Modi. Sources said that while extradition may sometimes turn out to be a lengthy process, it also depends on “diplomatic reciprocity” and “politics”.
Vikash Yadav, a former Central Reserve Police Force (CRPF) officer who was deputed to RA&W, has been accused by the US Department of Justice in the “murder for hire” plot against Sikh separatist leader Gurpatwant Singh Pannun, alongwith money laundering. He is also on the FBI’s ‘most wanted’ list.
Yadav was arrested last December on charges of attempted murder, kidnapping, extortion, and Arms Act violations, but was granted bail in April this year. This was weeks after an indictment filed with a district court in New York in November 2023 first mentioned allegations of a plot to murder India-designated terrorist Pannun — head of banned organisation Sikhs for Justice (SFJ) — by an Indian government official in cahoots with an Indian citizen, Nikhil Gupta. This indictment only mentioned Yadav as ‘CC-1’ (co-conspirator). A superseding indictment unsealed three days ago identified ‘CC-1’ as Vikash Yadav.
While Nikhil Gupta was arrested by Czech authorities and extradited to the US earlier this year, any such course of action seems difficult in Yadav’s case due to the pending criminal trial against him.
Pahwa, quoted earlier, told ThePrint that the potential extradition of Vikash Yadav to the US “involves complex legal and diplomatic factors”.
He explained that while the US-India extradition treaty provides a robust mechanism for extradition in cases involving serious offenses like conspiracy to commit murder, the process is not automatic.
“India is not obligated to extradite its own nationals under the treaty, although it has the discretion to do so. Therefore, the decision will likely depend on a careful balancing of legal obligations, the status of the criminal case in India, and diplomatic considerations between both nations,” he explained.
“Ultimately, if extradition is pursued, it will be a test of how the legal systems of both nations manage competing claims of jurisdiction in serious criminal matters like this,” Pahwa added.
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How does extradition happen
The 1962 Extradition Act has to be read with the extradition treaties India has with several countries. The extradition process can be initiated via a request through different modes, including through diplomatic channels between India and the requesting country. All extradition requests in India are handled by the Ministry of External Affairs.
According to experts, extradition proceedings in India are “partly judicial and partly administrative”. When an extradition request is made, the central government first conducts a preliminary inquiry into the validity of the request. Then, if it deems fit, it can issue an order to a jurisdictional magistrate to enquire into the matter. The central government considers the matter after the magistrate’s inquiry is completed as well.
After receiving the magistrate’s enquiry report, if the Centre feels that a fugitive offender is required to be surrendered to the requesting state, a warrant is issued in this regard.
Advocate Pahwa said that both India and US uphold the principle of dual criminality, meaning the alleged crime must be recognised as such in both jurisdictions in order for an extradition request to be made.
(Edited by Gitanjali Das)
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