ON THE DAY Tahawwur Rana was to be released after seven years' remission of his 14-year sentence during the Covid-19 pandemic, a request by the National Investigation Agency for his extradition to India stopped the authorities from releasing him. He was placed under arrest pending adjudication of the Indian petition, based on an Indian court warrant for his arrest issued on August 28, 2018.
Not the one to give up easily, Rana used all the avenues at his disposal to prevent the NIA’s extradition effort. He employed a British barrister and Queen’s Counsel Paul Garlick, who argued for the benefit of double jeopardy to prevent the extradition. Senior counsel Dayan Krishnan, representing the NIA pro bono, however, demolished the arguments. Krishnan was special public prosecutor in high profile cases like the Nirbhaya rape and murder, the Nitish Katara murder, the Naval war room leak and the Commonwealth Games scam.
Even after the US government decided to extradite him, Rana made another appeal against the US state department order to delay the process on humanitarian grounds. Officials of the external affairs ministry have expedited the paperwork with the US authorities because, if the court considers his appeal and gives a stay order, the extradition can be delayed by a few months.
On May 16, 2023, a magistrate judge in California ordered that Rana was extraditable to India for his alleged participation in the 26/11 terror attacks. Against this order, he filed a habeas corpus petition before the district court for the Central District of California, which was denied on August 10, 2023. However, Rana’s extradition was stayed pending his appeal.
Rana’s trial was held at the district court of Illinois, Chicago, on three counts―conspiracy to provide material support to terrorism in India, conspiracy to provide material support to terrorism in Denmark, and providing material support to a foreign terrorist organisation, the Lashkar-e-Taiba. On June 9, 2011, the jury convicted him of charges on the latter two counts, but acquitted him of the first charge. On January 17, 2013, Rana was sentenced to 14 years imprisonment. However, after serving seven years, he was ordered to be released on compassionate grounds during the pandemic.
On completion of his sentence, the Indian extradition demand paved the way for his detention pursuant to the US government’s complaint on June 10, 2020 for his provisional arrest pending extradition. Hence, the extradition proceedings saw petitions being filed at the magistrate court, district court and the court of appeals for the Ninth Circuit in California, which is a federal appellate court. Its rulings are appealable to the US Supreme Court.
The US prosecutors argued before the court of appeals that not all the charges on which India was seeking extradition were covered by the original US prosecution case against Rana. Forgery charges by the NIA were specifically highlighted by US prosecutors, who cited the evidence of fraudulent documents provided for the Reserve Bank of India's permission to open the Mumbai branch of Rana’s official business, Immigration Law Center, and for obtaining an Indian business visa for David Coleman Headley from the Indian consulate in Chicago. Rana brought to his defence his acquittal by the trial jury of his involvement in the Mumbai attacks and lack of credibility of Headley’s statements. US prosecutors argued that since two out of three counts of Rana’s conviction were based on Headley’s testimony, the acquittal on one count could not be used to disregard Headley’s testimony.
The court of appeals upheld the denial of habeas corpus petition by the district court, concluding that Rana’s contention that the Indian extradition request was hit by double jeopardy was not maintainable. Based on the plain reading of the extradition treaty and other case laws, the court interpreted that the ‘offence’ mentioned in the treaty referred to the charged crime, and not to underlying acts, paving the way for elements of each crime to be seen before it is decided whether double jeopardy can be invoked. Thus, Krishnan’s contention that double jeopardy benefit was available neither under the Indian law nor international law ensured that all doubts were cleared and the court ruled that Rana was a fit case for extradition.
The rest of the proceedings was easy as the court of appeals held that India could present sufficient evidence to show that Rana committed the charged crime before the Indian court which was distinct from the charged crimes at the Chicago court. Interestingly, the court of appeals turned Rana’s argument on its head―that he was unaware of the imminence of the Mumbai attacks until informed by Headley through Abdur Rehman Hashim Syed alias Pasha in the UAE―by “disproving his involvement in the plot”. The court held that “an equally compelling inference could be drawn that Headley kept Rana informed” of the developments.
On November 13, 2024, Rana approached the US Supreme Court with a petition of certiorari to review the court of appeals order upholding India’s extradition request. After listening to both the sides, the Supreme Court on January 21, 2025 denied Rana’s petition, paving the way for President Donald Trump to publicly announce that Rana, “a violent man”, will be handed over to Indian authorities.