Sanjay Bhandari Extradition Ruling: Is BJP’s Black Money Act ‘Constitutional’?

A UK High Court ruling rejecting the extradition of Sanjay Bhandari is a setback to the Narendra Modi government’s Black Money Act (BMA) and the hopes of further extraditions under it. The UK court had heard that the BMA’s presumption of “guilt” under the Act was “unprecedented” across the Commonwealth and noted that India’s Supreme Court had not had the occasion to consider its “constitutionality”.

On Friday last week, the UK High Court of Justice delivered an unprecedented judgement in the extradition case of Indian arms dealer Sanjay Bhandari, accepting his appeal against extradition. “A bombshell for future extradition hopes”, is how one barrister involved in previous extraditions cases involving Indian citizens described the judgement to this author. The Indian government was hoping to extradite Bhandari under the Black Money Act, for failure to declare foreign assets as well as alleged money laundering charges.

As previously detailed, this was the first time the Black Money Act, introduced by the Bharatiya Janata Party (BJP) government to curb black money or undisclosed foreign assets and income, had been put to test internationally in this manner. On appeal, the UK High Court concluded that the Black Money Act could lead to “serious miscarriages of justice”. It said:

“The combination of the reverse burden, together with the extraordinary imposition of a requirement on the accused to disprove mens rea to the criminal standard of proof, that is beyond reasonable doubt, fundamentally destroys the fairness of the prospective trial, and it is likely that such a fundamental breach of article 6 would lead to serious miscarriages of justice.”

The specific issue for the court was around Section 54 of the BMA, which requires someone accused under the Act to disprove mens rea (guilty mind). In non-legal jargon, this section of the Act allows Indian prosecutors to reverse the common notion of “innocent until proven guilty”, essentially meaning that a defendant would have to disapprove their guilt.

Bhandari’s high-profile legal team, consisting of KC (King’s Counsel) Edward Fitzgerald, once heralded by the Guardian newspaper as “the great defender”, and James Stansfield, junior counsel, had argued that such a law was unprecedented anywhere in the Commonwealth.

The judgement might also pave the way for legal challenge on Indian soil, with the English judges reasoning that “the Supreme Court of India has not had the occasion to consider the constitutionality of s.54 of the BMA.” Irrespective of the outcome of any Indian Supreme Court decision, the UK court noted that its conclusions would be unaltered.

While the Indian Constitution does not specially enshrine the presumption of innocence, some jurists have argued that its basis is to be found in Article 20(3) protecting the accused of being a witness against himself. The Indian Evidence Act, 1872 does, however, specifically enshrine the principle, except for limited cases like “waging war against the state”.

Opponents of the UK court’s decision might decry a form of legal colonialism at work, given that a foreign territory is ultimately pronouncing upon Indian laws under its own legal framework. The UK court had agreed that there was a prime facie case to be argued for all charges against Bhandari.

Yet the reality still stands: the Black Money Act, in its present form, would now likely be considered “anti-constitutional” in many common-law derived countries.

This article was also published in NewsClick and can be read here.