Washington: The Indo-US extradition treaty
may pose a major hindrance to India`s efforts to produce David
Headley and Tahawwur Rana before a Delhi court over the Mumbai
attacks, as it does not allow handover of a person already
convicted or acquitted for the offence he has been sought for.
"The (1997 extradition) treaty between India and the
United States precludes the extradition of Rana. The court
here would not allow it. Rana was acquitted to the charges
related to Mumbai in the United States," Patrick Blegan, the
attorney for Rana said.
Blegan was responding to questions regarding the order
given by a Delhi court to the National Investigating Agency
(NIA) that Headley and Rana be produced before it on March 13.
51-year-old Headley, a Pakistani-American LeT operative,
and his childhood friend Rana, a Pakistani-Canadian, are
currently lodged in a Chicago jail and awaiting their
On Tuesday, Indian Ambassador to the US, Nirupama Rao,
met US Attorney General Eric Holder in this regard and he
assured all help.
However, Blegan argued that under the current extradition
treaty, it is not possible to hand over Rana, 51, to India.
"Extradition shall not be granted when the person sought
has been convicted or acquitted in the Requested State for the
offence for which extradition is requested," says Article 6.1
of the India Extradition Treaty signed in 1997.
"Extradition shall not be precluded by the fact that the
authorities in the Requested State have decided not to
prosecute the person sought for the acts for which extradition
is requested, or to discontinue any criminal proceedings which
have been instituted against the persons sought for those
acts," says the treaty, signed on June 25, 1997 between Saleem
Shervani, the then Minister of State for External Affairs, and
Strobe Talbott, the then Deputy Secretary of State.
Blegan said that "our position is that Rana cannot be
extradited as he was acquitted of the Mumbai charges by a US
Rana was found not guilty of the Mumbai conspiracy, he
However, he noted that his argument is based on the news
reports in the past few days as neither he nor his client has
received any paperwork in this regard so far.
It is believed that Headley would be putting a similar
defence that he has been convicted for his involvement in the
Mumbai terrorist attack and is awaiting sentencing.
So he cannot be extradited either, sources said.
"He (Headley) will say, look I have been convicted and I
am going to be convicted by a US court," a source familiar
with the legal matters of the case said.
"If one is convicted and is or to be sentenced is also a
defence to the extradition treaty. It is essentially saying
two countries can`t convict and sentence you twice," the
Headley`s lawyer, John Theis, however refused to comment
on the issue. "I have not received any formal notification for
Mr Headley. It would be inappropriate for me to comment on
that," Theis said.
"I do not want to speculate about or comment on things
based on just news reports that I see. I am awaiting some sort
of information, if they want to reach out. I am sure, I will
hear directly from them or from the United States Government,"
Legal experts familiar with the issue said Headley can
also argue against the extradition based on the plea agreement
he entered with the US Government in March 2010.
The plea agreement prevents Headley from being
"Pursuant to Article 6 of the Extradition Treaty Between
the United States and the Republic of India, Article 7 of the
Extradition Treaty between the United States and the Kingdom
of Denmark, and Article 4 of the Extradition Treaty between
the United States and Islamic Republic of Pakistan, defendant
shall not be extradited to the Republic of India, the Kingdom
of Denmark, or the Islamic Republic of Pakistan, respectively,
for any offences for which he has been convicted in accordance
with this plea," the plea agreement says.
"The language of the plea agreement is there in the
public. I would not comment on it at this point of time,"
Theis said, adding he would not like to speculate if Headley
travelling to India to appear in a court on March 13 is a
possibility or not.
No date has been scheduled for sentencing of Headley yet.
The Department of Justice did not respond to the questions
in this regard.
The Indian embassy, which under the extradition treaty is
authorised to submit a request for extradition of Rana and
Headley, also did not respond to the question if the request
has formally been made.