The Indian government has landed virtually in Dominican courts to get Mehul Choksi deported. With its investigators failing to get their hands on the fugitive diamond trader, India has, for now, decided against dispatching a legal team to Dominica.
But the long arm of the law is after him, with former solicitor general Harish Salve (Queen's Counsel) using video links to assist investigators in untying the legal knots Choksi has created to stay put in the Caribbean.
India recently filed an affidavit in the Dominican high court—on behalf of the Central Bureau of Investigation and the Enforcement Directorate—claiming that Choksi was an Indian citizen who was fleeing the law. The CBI and the ED are investigating Choksi's role in the Rs13,500 crore Punjab National Bank fraud case; his nephew Nirav Modi is in a London jail in the same case.
Investigators are confident that Salve's involvement will not only pave the way for Choksi's return, but will also set a precedent for those who buy a new nationality to escape the law after committing fraud.
The ED is currently chasing another diamond trader who has given up his Indian citizenship for a Saint Kitts one. Another was trying for citizenship of Saint Lucia. The Caribbean, with its paid citizenship programmes, has been a favourite haunt of fugitives. Sleuths said facilities provided to passport holders of these tiny nations, like visa-free travel to more than a hundred countries, is a huge attraction for scamsters. Such citizenships can be retained by just spending a few days on the island.
On June 14, after Choksi did not appear before it citing health reasons, the Dominican magistrate’s court adjourned the matter of his illegal entry into the country till June 25. “It is a matter of time. There are two main issues before the court to be addressed first,” said a senior Indian government official. First, Choksi has claimed before the court that he was not an “illegal entrant” in Dominica. In his plea, he claimed the Dominican law on visa allowed him entry into Dominica from Antigua without a passport. Second, he claimed he was kidnapped from Antigua and brought to Dominica against his will, which technically does not make him an illegal entrant.
Whatever turn the case takes, Choksi has to be sent out of Dominica. Where he will be sent will depend on which country he is proven to be a citizen of. “If the Indian government proves Choksi's Indian citizenship in the Dominican court, his attempts to save his Antiguan citizenship (the country’s government has decided to rescind it) will also be thwarted, as it makes it easier for the host country to revoke it citing a false declaration he made,” said an investigator privy to the developments.
Choksi's lawyer Vijay Aggarwal, however, insisted that his client’s citizenship issue could not be discussed in a Dominican court. “First, in bail proceedings, the question for determination is not citizenship. So this affidavit is uncalled for,” he said. “Moreover, as per section 9 of subsection 1 of the Indian Citizenship Act, Choksi is not a citizen of India and the affidavit is [based on a] fractured understanding of the law.”
Interestingly, India submitted the affidavit in the Dominican court after it was legally vetted at the highest level. In the past fortnight, there have been hectic consultations between officials of foreign, home and law ministries; the CBI and ED top brass were also present to discuss the citizenship issue and other legal concerns like the possibility of Choksi seeking legal recourse in the UK’s Privy Council. This was where Salve came in. He helped the Indian agencies fine-tune their response.
Union Home Secretary A.K. Bhalla said that, under section 8 of the Citizenship Act, 1955, the declaration of renunciation of citizenship should be registered; the process to do so is explained in rule 38, which says that such a declaration has to be made to the home ministry. The ministry, however, had declined Choksi’s declaration and conveyed its decision to the Indian High Commission in Guyana (where he had submitted his Indian passport). This meant that Choksi never ceased to be an Indian citizen.
The Indian government's legal team has also countered Choksi's claim that the foreign ministry revoked his passport in 2018, which deterred him from returning to the country. “Revoking a passport does not mean revoking citizenship,” said an investigator. “Moreover, Choksi could have used an emergency travel document and come to India to face the courts.”
But Choksi did not do so.
“With citizenship comes certain responsibilities,” said a CBI official. “That is the logic behind being a citizen of any country. It cannot be thrown away after the person commits a crime and wants to get away.”
Lennox Linton, leader of the opposition in Dominica, admitted that “rogues, bandits and vagabonds” buy his country’s citizenship and some of them even get diplomatic passports. He cited the examples of fugitives from the US, Italy and other countries being deported to face charges of fraud back home.
Indian investigators aside, legal eagles across the world are watching the Choksi saga unfold. Michael Polak, the director of UK-based legal firm Justice Abroad, has insisted that his client was kidnapped from Antigua and should be sent back there so that due process can be followed. “We believe that the aim was for him to be whisked away to India, bypassing the proper legal process in Antigua and Dominica,” he said.
All this has triggered a debate about the rights of a fugitive versus the rights of ordinary taxpayers who fell victim to a multi-crore scam. What happens in Dominica could have a ripple effect on cases featuring similar fugitives. The question is: what is more important, citizenship by investment or citizenship by responsibility?