The judgement in arms dealer Sanjay Bhandari’s case, and the grounds relied on by the court, are likely to be cited by other economic offenders who are fighting their extradition to India, including Mehul Choksi and Vijay Mallya.
NEW DELHI: The UK High Court has blocked the extradition of arms dealer Sanjay Bhandari, who fled to London in 2016, despite affirming that his alleged financial
The decision, delivered on 28 February, cited “severe” human rights risks to Bhandari if extradited.
The court found that extraditing Bhandari would violate his fundamental rights because of “appalling prison conditions” in Tihar and the “unfair legal proceedings” he would face in India.
The High Court of Justice King’s Bench Division, among other things, relied on the alleged delay in the trial of UK nationals Christian Michel and Jagtar Johal and the death of gangster Tillu Tajpuriya, who was murdered in May 2023 in a gang-related incident inside Tihar prison.
The judgement in this case, and the grounds relied on by the court, are likely to be cited by other economic offenders who are fighting their extradition to India including Mehul Choksi and Vijay Mallya.
As per court documents, Bhandari faced two extradition requests from the Government of India.
The first request concerned allegations of money laundering under Section 3 of the Prevention of Money Laundering Act 2002 (PMLA), while the second related to charges of wilfully attempting to evade taxes under Section 51 of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act 2015 (BMA).
In his appeal at the High Court, Bhandari had raised six key grounds for appeal challenging his extradition that was ordered by the lower court in November 2022.
Bhandari argued that the alleged offences did not qualify as “extradition offences” under UK law. This ground focused on whether the conduct alleged in India would also constitute a criminal offence in the UK, a crucial “dual criminality” requirement. The High Court, however, dismissed this ground, affirming the District Judge’s finding that the alleged conduct did meet the criteria. The court determined that the actions described in the extradition requests, particularly the alleged false representations regarding foreign assets, would constitute offences under English law, specifically, fraud.
The second ground raised by Bhandari challenged the existence of a “prima facie case” against him. He argued that the evidence presented by the Indian authorities was insufficient to warrant a trial. However, the High Court dismissed this ground too, upholding the District Judge’s assessment that there was sufficient evidence to establish a prima facie case.
The third ground raised by Bhandari, however, proved pivotal in stopping his extradition.
Bhandari, through his lawyers, had argued that his extradition would violate Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and inhuman or degrading treatment.
He presented evidence regarding the appalling conditions within Tihar prison, where he would likely be detained. While measuring this, the court found a “real risk” of ill-treatment, including potential violence, extortion, and severely inadequate living conditions.
The fourth ground raised by Bhandari concerned the fairness of the legal proceedings that he would face in India. He argued that certain provisions within the BMA and PMLA placed an unfair “reverse burden” of proof on him, violating his right to a fair trial under Article 6 of the ECHR. The High Court agreed to this too, finding that these provisions, which required the accused to prove their innocence rather than requiring the prosecution to prove guilt, were incompatible with fundamental principles of justice.
Bhandari had also argued that excessive delays in the Indian criminal justice system would violate his right to liberty and security under Article 5 of the ECHR. The court dismissed this ground, finding that while delays existed, they did not reach a level that would render his extradition incompatible with Article 5.
Finally, Bhandari had claimed that the statutory prohibition on bail under the PMLA would violate his Article 5 rights. The court also dismissed this ground, determining that the bail provisions, while restrictive, did not in themselves constitute a violation of his rights.
The court’s decision to allow grounds 3 and 4, relating to severe human rights concerns, ultimately led to the blocking of Bhandari’s extradition.
The Indian government, in its effort to secure the extradition of Sanjay Bhandari, presented a range of submissions aimed at reassuring the UK High Court about the conditions he would face in Tihar prison including formal diplomatic assurances, pledging that Bhandari’s fundamental human rights would be fully protected. These assurances encompassed guarantees of his safety and security within the prison, access to necessary medical care, protection from torture or ill-treatment, and adherence to international standards for prisoner treatment.
To bolster these assurances, the Indian government provided detailed information about Tihar prison itself, including descriptions of its infrastructure, facilities, and security protocols. Additionally, the government submitted information on India’s legal and regulatory framework concerning prison conditions, including relevant laws, regulations, and policies.
However, despite these efforts, the UK High Court found the Indian government’s submissions insufficient.
The court gave significant weight to countervailing evidence presented by Bhandari’s legal team, which highlighted “severe overcrowding”, “widespread violence”, “extortion”, and “corruption” within Tihar prison.
The court, applying the “real risk” test, concluded that this evidence demonstrated a credible and unacceptable risk of ill-treatment, outweighing the assurances provided by the Indian government.
Credibility concerns and recent violent incidents within Tihar prison further undermined the Indian government’s claims, leading the court to determine that Bhandari’s human rights could not be adequately protected if he were extradited.
The judgment in the case suggests that the court’s concern was not simply about isolated incidents, but about a systemic problem within Tihar prison and the court agreed with his defence team’s argument that Sanjay Bhandari was “perceived to be rich” significantly increased his vulnerability to extortion and violence.
“Most notably, neither CCTV nor the oversight of senior officials afforded any protection to Mr Tillu Tajpuriya, who was murdered, in a sustained and violent attack, by other prisoners in Tihar prison on 2 May 2023. His murder was captured on two videos. The second video shows at least eight prison guards stand back and watch as Mr Tajpuriya’s assailants took turns to repeatedly stab him and stamp on his head. The prison guards, who significantly outnumbered the assailants, did nothing but watch until, eventually, they gently ushered the assailants away. This provides no grounds to have any confidence that prison staff would have the time to monitor the conduct of investigating officers, or the inclination or aptitude to step in to protect the appellant from proscribed treatment at their hands. The behaviour of not just one or two prison officials, but a large group of them, in standing by, casually and unconcernedly, while a prisoner was murdered by other prisoners mere feet away from them, renders implausible the contention that prison officials would intervene to protect the appellant from the use of proscribed treatment by an investigating officer. The officials who failed to protect Mr Tajpuriya have been suspended, but there is no evidence that they have faced any more serious consequences.
“It is apparent that the acceptance in India of torture or other serious mistreatment as a method of evidence-gathering extends beyond the police and investigating bodies, such that it is unlikely that the appellant could look to prison officials for protection from the organisations that are engaged in investigating him,” the court in its decision stated.
Similarly, regarding Christian Michel (accused in the AgustaWestland helicopter case who was extradited in 2018) and Jagtar Singh Johal (British national, in Indian custody since November 2017 for allegedly being a member of Khalistan Liberation Force), the court said the lower UK court failed to engage with the specific evidence of delays in the trials of Michel and Johal.
“Mr Michel, according to UNWGAD (United Nations Working Group on Arbitrary Detention), was ‘arguably rendered to India from Dubai’ on 4 December 2018 in respect of allegations of bribery of Indian officials, and he was later questioned by the Enforcement Directorate regarding alleged money laundering. More than six years after his ‘forced transfer’ to India, Mr Michel has yet to be tried. Mr Johal still awaits trial, more than seven years after he is said to have been unlawfully detained on 3 November 2017, having been detained (at least for part of that period) under anti-terror legislation. Both men have been in custody throughout.”