It is a tumultuous time for Gautam Adani, the billionaire chairman of one of India’s biggest corporate conglomerates, the Adani Group, and one of the richest people in the world.
The United States Securities and Exchange Commission (SEC) has accused Adani and others of conspiring to pay about $265m in bribes to Indian government officials to obtain contracts and develop India’s largest solar power plant project.
US prosecutors unveiled in November an indictment of Gautam Adani, his nephew Sagar Adani and five others. The Adani Group has rejected these claims, calling them baseless.
Amid all this, Adani remains defiant. “This is not the first time we have faced such challenges … every attack makes us stronger and every obstacle becomes a stepping stone,” Adani said on Sunday at an award ceremony he was attending in the western Indian city of Jaipur, his first public appearance after the indictment.
The indictment and jurisdiction complexities
A grand jury indictment means that an empanelled jury, and a judge, are convinced that there is enough evidence to merit a continuing investigation and to potentially move ahead to trial, Irfan Nooruddin, an authority on US SEC corruption cases, told Indian outlet The Print. However, the bar for a grand jury indictment is lower than the bar for a jury trial, he added.
The recent allegations also highlight jurisdictional complexities.
Indian senior criminal lawyer Vikas Pahwa told Al Jazeera, “The Prevention of Corruption Act [PCA] mandates investigations into bribery involving Indian officials be conducted by Indian authorities like the CBI [Central Bureau of Investigation]. Trials, if any, would also fall under Indian jurisdiction.”
However, the US Foreign Corrupt Practices Act (FCPA) governs acts of bribery involving US-linked entities, such as those using US financial systems or targeting American investors.
Allegations against Adani and others include violations of anti-bribery provisions and misleading US investors during a $600m bond offering (which was withdrawn once the charges became public).
While this establishes potential US jurisdiction, such cases must align with international legal principles and respect India’s sovereignty, pointed out Pahwa.
Since both nations are signatories to mutual legal assistance treaties (MLATs), they need to cooperate to ensure evidence adheres to international standards.
“Adani’s defence may argue the lack of a direct US connection to the alleged acts and emphasise compliance with Indian anticorruption laws,” Pahwa added. Meaning, if an investigation in India clears Adani and his co-accused of these charges, that would work in their defence in the US, he said.
In terms of next steps, the US needs to issue a formal extradition request to the Indian government to bring the accused to the US for a trial. Earlier this month New Delhi said it has not received any such request. There has been no update from the government since then.
For Adani to step forward with his defence, he will have to present his case in a court in the US. It’s unclear if he would do so. He will be entitled to a speedy trial within 70 days if he demands one in a US court.
Niranjan Adhikari, managing lawyer at Washington-based Adhikari Law, says, “They can begin the trial in absentia and issue lookout notices to the defendants if they do not present themselves in a defined period of time”, which is set by a jury at the time of trial.
US Attorney Breon Peace, who unveiled the charges, can issue international arrest warrants for Adani and his co-defendants. In case of any such lookout notice or international warrant, they could be arrested outside India (Interpol has no jurisdiction within India), curtailing their travel.
Since India and the US have an extradition treaty, India is obligated to consider the request should it come.
That process would be handled by a court in India, which would need to consider several factors including whether the crime he was charged with within the US is also a crime in India, whether the charges are politically motivated or whether he could face inhumane treatment in the US.
However, extradition cases are often prolonged, and Adani could fight it.
Adani is also perceived to be close to Indian Prime Minister Narendra Modi and that relationship might help him clear these charges in India, critics say. For now, the government has chosen to distance itself and said “this is a legal matter involving private firms and individuals and the US Department of Justice. We are not part of it in any manner at this point of time,” India’s Foreign Ministry spokesperson Randhir Jaiswal told the media during a news briefing on November 29.
A jury of 12 would need to unanimously vote to convict Adani, and he could appeal a verdict against him.
He could face decades in prison if convicted, but would probably receive far less time. He could also face financial penalties. Any sentence would ultimately be up to the judge overseeing the case.
