It must be music to the ears of those resisting return to India to face investigation or prosecution or both. And ironically, their escape route may have been paved by Union home minister Amit Shah himself.

On 16 October, while addressing a CBI (Central Bureau of Investigation) conference on ‘Extradition of Fugitives’, Shah reportedly pointed out that India’s new penal code, the Bharatiya Nagarik Suraksha Sanhita (BNSS), provides for ‘trial in absentia’. (Sections 355 and 356 of the BNSS do provide for ‘trial in absentia’ under specific conditions.)

In the words of a Press Information Bureau release: ‘Shri Shah explained that if a person is declared a fugitive, the court can proceed with the trial even in their absence, by appointing a lawyer to represent them… He emphasised that the provision of Trial in Absentia available under the BHSS should be used to the fullest extent, and trials of fugitives should proceed even in their absence (emphases added)’.

If Shah’s stated position can be interpreted as the Indian government’s new policy, this would, arguably, obviate the need for alleged economic offenders holed up in Britain and Belgium to be dragged to India for trial. Indeed, now that the relevant sections of the BNSS have been brought to the fugitives’ notice, and Shah has endorsed its ‘fullest use’, their lawyers can be expected to pounce on the godsend and make judges in the UK and Belgium aware of the developments. So far, no defendant facing extradition to India has cited Shah’s pronouncements in their legal arguments.

The reality is few cases may ever reach the trial stage — as of September 2024, more than 6,900 corruption cases being handled by the CBI were pending trial. The Bureau closed a record 174 cases in 2024 for lack of evidence.

There are cases where investigations have been pending for five or 10 years, where the CBI is required to complete a probe within a year of registering a case. As is well known, the Enforcement Directorate’s success rate is eight convictions out of 5,892 cases, or an appalling 0.1 per cent.

In 2019, London-based businessman Raj Sethia was acquitted by a Delhi court after 34 years of being an accused. He was charged by the CBI of defrauding Punjab National Bank (PNB) in the UK. He was arrested in India in 1985 — on a visit to prove his innocence — and imprisoned for two years. The final court order said the CBI had implicated him in ‘false cases’. In effect, the CBI has ruined the life of a man who was 33 when he was charged.

On 17 October, a day after Shah’s endorsement of ‘trial in absentia’, an Antwerp regional court, likely unaware of the Indian home minister’s speech, delivered a verdict upholding the validity of diamantaire Mehul Choksi’s arrest in Belgium prior to the hearing of an Indian request for his extradition. When Choksi appeals against this order, he will in all probability bring to the notice of the higher court Shah’s stance on extradition.

More to the point, Indian authorities may have jeopardised their chances of extraditing Choksi by planting exaggerated, inaccurate stories in Indian media about their success in the matter. Tendentious reporting of a case, which misleads and influences public opinion and consequently pressures judges, violates European principles of fair treatment of an accused.

The Belgian prosecutor-general’s office shared a copy of the court order with the Indian authorities, they being the petitioners. The CBI has charged Choksi with various crimes, including defrauding PNB. Choksi denies the accusations.

The purpose of the hearing leading to the 17 October judgement in Antwerp should have been crystal clear to all parties, namely Choksi’s appeal against his arrest. In other words, proceedings to determine approval or denial of India’s request for Choksi’s extradition are yet to commence.

However, the Indian authorities have painted a very different picture to Indian media. Instead of sticking to the facts — undoubtedly a victory for them — they chose to distort and fabricate. Newspapers and TV news channels bought their story without bothering to cross-check or obtain independent corroboration.

So, as per these reports, Choksi’s extradition had been granted and his arrival in India was imminent. A section of the media even carried sidelights like upgraded conditions at Mumbai’s Arthur Road Jail, where Choksi is reportedly to be lodged.

Intriguingly, the extradition arrangement between India and Belgium is, as the wording of the judgement itself bares, based on a Convention of Extradition between Belgium and Great Britain signed on 29 October 1901 and additional conventions of 5 March 1907 and 3 March 1911. In other words, it’s based on a colonial-era treaty.

The Indian ministry of external affairs confirms on its website that the pact was adopted verbatim by independent India — except one section referring to colonies — on 3 August 1954.

Luckily for the CBI, points 10 and 11 in Article 1 of this antiquated agreement vaguely cover the CBI charges as applied in Choksi’s case. These points refer to ‘obtaining money… by false pretences’ and ‘fraud by… a member or public officer of any company made criminal by any law for the time being in force’. The Antwerp judge cited the 1901 Convention, without explaining its relevance to India and Belgium today.

The English translation of the 17 October judgement, which is in the possession of the Indian authorities, records: ‘On 27 August 2024, the Central Extradition Authority of the Ministry of Foreign Affairs of India issued an extradition request… for the surrender of the person Mehul CHOKSI (Central Bureau of Investigations (CIB) [sic] file No 2021/1487), based on two arrest warrants issued by the Special Judge for CBI Cases Greater Mumbai (India).’

It continues: ‘On 25 November 2024, the Prosecutor of the King (of Belgium) filed an application with the Court of First Instance of Antwerp, Turnhout, for a declaration of enforceability of the aforementioned arrest warrants… By order of 29 November 2024… the aforementioned arrest warrants were declared enforceable… enforceability was made by the police in Antwerp on Saturday 12 April 2025.’

Why it took the Belgian authorities four-and-a-half months to execute the arrest warrant is a mystery. It is speculated that Belgium, which was sitting on it, may have received an incentive to act. In early March this year, a Belgian economic mission, led by Princess Astrid, sister of the Belgian monarch King Philippe, visited India. It signed agreements for Belgian defence sales to India, including Belgian-made 105 mm gun turrets for Zorawar light tanks, which are being developed in India for the Indian Army. Belgian defence minister Theo Francken commented, ‘This project highlights our growing partnership with India in the defence sector.’

The Antwerp judgement further traces: ‘On 14 April 2025, the person concerned, Mehul CHOKSI, [appealed] against the abovementioned decision of 29 November 2024…’ The hearing, though, did not take place until 19 September.

Under Article 2a(2) of Belgium’s Extradition Act of 1874, ‘extradition cannot be granted if there are serious risks that the person, if extradited, would be subjected to a flagrant denial of justice or to torture or inhuman and degrading treatment in the requesting State’.

This is now entwined with breach of Article 3 of the European Court of Human Rights (ECHR) ‘with some degree of probability’. The Antwerp court concluded, ‘In principle, it is for the person concerned to adduce evidence to show there are substantial grounds for believing that there is a genuine risk of ill-treatment.’ This means Choksi needs to provide proof of this at his appeal.

The court did not lend weight to Interpol withdrawing the Red Corner Notice against Choksi because he had been abducted and tortured in the Caribbean. ‘It cannot be inferred from the documents supplied by the person concerned that he was kidnapped in Antigua on the instructions of the Indian authorities,’ it said.

But the High Court of England and Wales in London in a preliminary hearing in June admitted Choksi’s charge against the Indian government on the same subject. Choksi also invoked infringement of Article 6 of ECHR (right to fair trial) if he is extradited, but the Antwerp court said he had not ‘put forward substantive evidence’ on this aspect.

Choksi’s lawyers argued that Indian media coverage about him ‘would violate the person’s right to a fair trial’. This was not accepted by the judge, but the Indian authorities, with their post-verdict plants in the local media, have given him ammunition to fire at his appeal.

Incidentally, the Court of Appeal in London has turned down India’s application for extradition of weapons consultant Sanjay Bhandari. The devastating judgement outlined extensive evidence of torture in India and noted that India is yet to ratify the UN Convention against Torture (UNCAT). This could also come into play in Choksi’s case.

Views are personal

Ashis Ray can be found on X @ashiscray. More of his writing can be found here