NEW DELHI: “Pulling these various strands together and weighing them in the balance to reach an overall evaluative judgment on the question raised, 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,” said the bench of Lord Justice Jeremy Stuart-Smith and Justice Robert Jay of London High Court on 9 November, while refusing to accept the contention of Nirav Deepak Modi that he was depressed and was likely to commit suicide if he were sent to India.
The court had reserved its judgment on 12 October after hearing the arguments of Nirav Modi and the Government of India over two days. Nirav Modi, along with his uncle, Mehul Choksi, is accused of defrauding the Punjab National Bank (PNB) to the amount of a massive Rs 12,600 crore, much of which the duo took outside of India and which is still in the possession of their family members through various investments and assets. The proceeds of this scam are being used by the duo for their legal expenses. Choksi, in fact, purchased the citizenship of Antigua by using the scam money.
The two main factors that convinced the judges to send Nirav Modi to India—who was arrested by the London police on 19 March 2019 after escaping from India on 1 January 2018 just days before the scam came to light—was the failure of his defence team to prove what is now being called a “fictional theory” that he was depressed to an extent that he would commit suicide if extradited and the detailed and extensive assurances that Government of India (GOI) gave to the court assuring that Nirav Modi, if extradited, would be “well kept” in the prison and that no authority would override or bypass the assurance that GoI had given.
Government of India assured the court, through two separate assurances, that in the event of Nirav Modi’s extradition, he would be held at Barrack number 12, Arthur Road Jail, in Mumbai which is separate from the “general population”. “Aside from matters of personal space and living conditions, medical facilities would be available 24/7, four medical officers, along with four nursing orderlies and two pharmacists, would also be available. There was a prison hospital with 20 beds and outside experts came in when required. There is a public hospital within 3 km of the prison,” the judges, quoting the assurance given by Government of India through the Ministry of Home Affairs (MHA) in June 2019 and September 2020, observed.
The MHA also told the court that Nirav Modi would receive any “relevant and necessary treatment from a private doctor or mental health expert of his choice, including treatment or counseling from psychiatrist, or psychologist, as required and paid for by him, including coming into prison / over video-link for consultations”.
The MHA also provided what the court described as “a very useful video” of Barrack number 12, which was shot in a very detailed manner. “The video certainly gives the impression of a spacious and clean cell with plenty of natural light and a well-appointed en-suite bathroom,” the court observed.
Incidentally, one of the defence lawyers of Nirav Modi has also represented another fugitive, Vijay Mallya, who, too, like Nirav Modi, defrauded banks, and fled to London. In its 35-page judgment, the judges have provided a glimpse of how Nirav Modi was spending time in prison.
The judgment also throws light on how Nirav Modi tried to confuse two psychiatrists (Seena Fazel, who is Professor of Forensic Psychiatry at the University of Oxford, and Andrew Forrester, who is a Professor of Forensic Psychiatry at Cardiff University), who examined him throughout his detention and even managed to convince one of them to some extent that he was “severely depressed”.
During the argument, Nirav Modi’s legal team in fact “criticized” Professor Fazel for not agreeing to Professor Forrester’s assessment that Modi was severely depressed. In the end, the court agreed with the views and evidence presented by Fazel.
Nirav Modi’s defence team, in a bid to stop his extradition, raised the issue of the breach of assurances that Government of India had given to the Government of Portugal in the case of gangster Abu Salem, who was extradited to India in November 2005 after GOI gave an assurance that he would be released once he completed 25 years in prison. Nirav Modi’s lawyers described the assurance given by GoI as “vague” and “unspecific”.
While quoting the evidence given by Justice (Retired) Pradeep Nandrajog on behalf of Nirav Modi on 4 June 2022, Nirav Modi’s lawyer said that GoI’s assurances about access to private healthcare to him, in case he was extradited, should be rejected, as a court order would be required before a private doctor might be permitted to enter Barrack number 12 of Arthur Road Jail in Mumbai.
Before Nandrajog, Justice Markandey Katju and Abhay Thipsay, too, had given evidence in a UK court on behalf of Nirav Modi. However, the statement given by these three former judges failed to make any impact.
The defence team of Nirav Modi also quoted the fact that his mother had committed suicide in front of him when he was 8 years old and that he was taking an anti-depressant drug, Fluoxetine, and that he had become depressed during 2008 when economic depression impacted his business. However, as checked by The Sunday Guardian in 2008-09, his company, Gitanjali Jewels, earned a Profit after Tax (PAT) of Rs 1,268 crore, which was Rs 1,382 crore in 2007-2008.
In the end, all these “superficial” arguments failed to make any impact on the outcome of the case. The evidence presented in court stated that Nirav Modi’s weight had increased from 65 kg to 82 kg, he was sleeping for more than 12 hours a day and was reading multiple newspapers without fail. The court was also told that he would be very happy while speaking to his family members, which was a daily occurrence.
The court, while recognising the assurance given by Government of India, stated, “The GoI will surely appreciate that a failure to honor its assurances would be liable to have a significant adverse effect on the mutual trust that forms the basis of the extradition regime to which India and the United Kingdom are parties.”
The matter had reached the High Court after District Judge Sam Goozee, on 25 February 2021, accepted GoI’s request for extraditing Nirav Modi and sent the case to then Secretary of State Priti Patel, who on 15 April 2021 ordered his extradition to India.
Now there are two options available with Nirav Modi. The first is that he can approach the Supreme Court on a point of law of public importance against the High Court’s decision within 14 days of the High Court verdict. This, legal experts say, can only happen if the High Court certifies that his case involves a point of law that is of public importance. In other words, this can happen only if the court feels that the question of his extradition is of “public importance”.
The second and last option before him is to file an application before the European Court of Human Rights (ECHR), which has 46 countries of the European Council as members and is based in Strasbourg, France, and pray for an order that stops his inevitable extradition. The ECHR interprets the European Convention on Human Rights.
While responding to The Sunday Guardian’s queries, the press team of ECHR said in applications concerning extradition cases that are filed before the ECHR, the Court examines each request on an individual basis and as a “matter or priority”.
“The Court may decide that an applicant or a State should take certain measures provisionally while it examines or continues to examine a case. In the case of a State, this might be to delay extradition or not to return individuals to countries where they might face death or torture. If such an interim measure is decided and indicated to a State, it is common for it to last for the duration of the proceedings before the Court. There is no time limit, as such, for those proceedings, although it is usual for the Court to deal with cases concerning extradition quickly,” the ECHR said.
The Sunday Guardian reached out to Nirav Modi’s legal team for a response on these developments, but did not receive a reply until the time this report went to the press.