The UKHC Judgment in the Sanjay Bhandari Extradition

In an interesting development, on 28.02.2025 the UK High Court passed its decision in Sanjay Bhandari v. Government of India [2025 EWHC 449 (Admin)] ['Bhandari']. It allowed an appeal by Mr. Bhandari against a 2022 judgment of the District Judge which accepted India's request to extradite him for facing prosecutions under the Black Money Act 2015 [BMA] and the Prevention of Money Laundering Act 2002 [PMLA].

The Grounds of Appeal

The judgment sets out the six grounds of appeal in Paragraph 3. Two grounds solely to UK extradition law and so are not being discussed here. The rest of the grounds all emanate from a consideration of either the Indian laws or the Indian criminal process, which render the judgment in Bhandari relevant for Indian law practitioners and students to consider. For ease of access, I set out the grounds and the Court's specific ruling below:

1. Extradition was incompatible with rights under Article 3 of the European Convention of Human Rights [ECHR] due to conditions of detention in Tihar Prisons and likely treatment by police / other investigative bodies — In favour of Appellant
2. Extradition was incompatible with Article 6 ECHR rights due to peculiar reverse burden clauses under Section 54 of the BMA and Section 24 of the PMLA — Partially in favour of Appellant
3. Extradition was incompatible with Article 5 ECHR rights due to delays in the criminal process — In favour of Respondent
4. Extradition was incompatible with Article 5 ECHR rights as there is a statutory prohibition on grant of bail under PMLA — In favour of Respondent

A brief round-up of the relevant ECHR rights invoked by the Appellant is required before we discuss the specific findings of the Court in Bhandari. Article 3 confers a protection against torture or being subject to "inhuman or degrading treatment or punishment". Article 5 of the ECHR confers a bouquet of guarantees for safeguarding the right to life and personal liberty, relevant among those being the guarantee to speedy trial and release during pendency of a trial [Article 5(3)]. Article 6 of the ECHR confers a bouquet of fair trial rights, including the right to be presumed innocent until proven guilty [Article 6(2)]. 

This post will take up the findings on each of the ECHR violations in order. The perspective is not to give a view from a convention perspective, but to present the court's discussion and then extrapolate as to its significance from an Indian law standpoint. 

The Article 3 Case [Paras 102-184]

It is mightily significant that the District Judge in the fist instance had found a real risk of Article 3 ECHR violations occurring if Mr. Bhandari was kept in custody of investigative agencies after his extradition. The finding was based on the available material suggesting that there was widespread use of violence to secure confessions, questioning without counsel, and denial of consular rights. And the fact that India had not ratified the UN Convention Against Torture signalled a weak commitment to combating violence at the hands of state agents. This finding had prompted an Assurance to be given by the Government of India that he would not be detained in such custody, but only detained in Tihar Prisons, where interactions with investigating agencies would be closely monitored. The District Judge found this assurance sufficient to conclude that the risks posed by violence in police custody were sufficiently mitigated. 

That the Government of India never appealed against that finding, but chose to instead issue an Assurance, speaks volumes. Perhaps it was a strategic call, as ultimately the Government won that round of litigation. Unfortunately, the UKHC disagreed with the District Judge's conclusions as to detention in Tihar Prisons sufficiently mitigating the risk of Article 3 breaches. The HC in Bhandari noted that the specific location of Appellant's detention did not make any material difference to potential Article 3 breaches. If anything, detention in Tihar Prisons brought its own set of problems. In a severely overcrowded and highly understaffed prison such as Tihar, it could not be reasonably believed that the oversight could sufficiently protect Appellant against violence, coercion, or extortion by official agents. Moreover, the conditions were such that they separately exposed the Appellant to possible violence at the hands of fellow prisoners, for the prison authorities had proved entirely ineffectual in containing intra-prisoner violence leading to death in 2023 itself.

This discussion on the possibility of Article 3 breaches forms the bulk of the judgment in Bhandari. It can hardly be called wake-up call for the authorities, because we have been here before. Bhandari itself cites not only previous extradition challenges from the UK, but also Indian cases, demonstrating the appalling state of affairs when it comes to detention in Tihar prisons. If a UK Court can conclude that the conditions are so poor as to create a reasonable risk of exposing a person to inhuman or degrading treatment, what does it mean for the 20000 or so prisoners lodged inside Tihar on any given day? 

Prison conditions was one of the focus areas of the first wave of PIL jurisprudence. However, the focus soon shifted from crafting enforceable rights in the hands of prisoners to Constitutional Courts managing congestion and decongestion of prisons. There have been flickers of the idea that poor prison conditions need alternatives to custodial detention — for instance, in Gautam Navalakha which accepted house arrest as an alternative to jail custody and cited prison overcrowding as a factor. But they have remained flickers not only due to some lack of legal imagination, but also the judicial treatment of such arguments — one need only mention the fates of Father Stan Swamy and Professor GN Saibaba. 

If Article 21 of the Constitution guaranteeing a right to life to all persons under the protective domain of the Constitution of India is to carry the same weight as any global human rights convention, there is an utmost need for courts to revive approaches and craft remedies which enable courts to actively consider poor prison conditions as part of the matrix of factors relevant to decide whether a person should be at large or housed in custody.  

The Article 5 Claims [Paras 206-226, 227-236]

The Appellant's Article 5 case consisted of two claims — that there were significant delays in the process, and there was a statutory presumption against bail under the PMLA. Of note here are a few of the reasons why the High Court Bhandari decided in favour of Respondent on both issues. In respect of delays, the Court was reluctant to draw conclusions about delays in trials before special courts that deal with PMLA cases from available data concerning trials generally. It will not be surprising for future extradition cases to include this granular data, which is not difficult to find, and if anything paints quite a bleak picture of pendencies in PMLA cases. 

Where the data proved inconclusive for the delay argument, in case of bail the High Court relied upon data presented by Respondent to suggest that bail was granted in more than 60% of PMLA cases by trial courts, which meant that the statutory presumption against bail was not an insurmountable one as courts regularly granted bail. To Indian practitioners and commentators, this merits deeper scrutiny, as it seems to belie the evidence of one's eyes and ears. This statistic of granting bail can easily be 'padded' by lumping two kinds of entirely dissimilar cases together — cases where complaints are filed without arrest, and cases where an accused is arrested during investigation. Bail has been rendered almost a matter of rule in respect of the former category over the past three years by courts, rendering the presumption against bail under PMLA redundant for this category. What was relevant for Bhandari and indeed will be relevant in future cases is the figures for cases where persons are arrested during investigation and granted bail by special courts. It would not be surprising if that figure is not near the 60% mark.

The Article 6 Claims [Paras 185-205]

The Appellant in Bhandari claimed that the reverse onus clauses in the BMA and PMLA would occasion a breach of Article 6 rights, as they forced him to prove innocence and so deprived him of a fair trial and the presumption of innocence. The claim carried greater force against Section 54 of the BMA, which not only placed the burden of proof upon the defendant, but stipulated that the standard of proof laid upon the defendant was of 'beyond reasonable doubt'. Such a stipulation is not present under the PMLA, but can be found in other Indian laws, such as Section 35 of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS Act] as also Section 30 of the Protection of Children from Sexual Offences Act 2012. 

Expectedly, the High Court had no problem with the bare idea of the law having a reverse onus clause, as they are prevalent across jurisdictions today. The High Court was also satisfied that the particular context might justify the use of such a clause. It began tottering in favour of the Appellant seeing that the clause placed the burden to prove an essential ingredient of the offence upon an accused. What finally pushed the High Court over the edge to rule in favour of Appellant was the particular stipulation imposed by the Explanation to Section 54 BMA, which required an accused to prove facts beyond reasonable doubt. 

Bhandari notes that the Indian Supreme Court has not considered the validity of Section 54 BMA yet. It is unclear whether the issue of the validity of a similar clause in Section 35 of the NDPS Act was presented to the High Court, which had been considered by the Indian Supreme Court in Noor Aga [(2008) 10 SCR 379]. The Supreme Court had upheld the validity of that clause because firstly it did not displace the need for the prosecution to prove foundational facts, and secondly the burden upon the prosecution was to prove facts beyond reasonable doubt and that on an accused to establish a preponderance of probabilities. This finding, however, did not specifically engage with the Explanation to Section 35 of the NDPS Act which specifically required the accused to also prove facts beyond reasonable doubt. Since there is no manner in which to square the judicial ruling with the Explanation, it is reasonable to argue that the Explanation was impliedly struck down by the Court. 

If one agrees with this reading of Noor Aga, then the finding that Section 54 of the BMA is unpalatable in its current form is in consonance with Indian law as well. The problem, of course, is that the lack of clarity in Noor Aga means this is not the only way to read the judgment. Clearly the Legislature does not agree with this reading either, which explains why a similar clause has been inserted in laws passed after 2008 when the judgment in Noor Aga was rendered. One wonders whether a future Supreme Court will agree with the observations of the High Court in Bhandari, that such a legal stipulation requiring the accused to prove his innocence beyond reasonable doubt "fundamentally destroys the fairness of the prospective trial".