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 in Chicago would not allow it. Rana was acquitted to the charges related to Mumbai in the United States," Patrick Blegan, the attorney for Rana told PTI.
Blegan was responding to questions regarding the order given by a Delhi court to the National Investigating Agency that Headley and Rana be produced before it on March 13.
51-year-old Headley, a Pakistani-American Lashkar-e-Tayiba operative, and his childhood friend Rana, a Pakistani-Canadian, are currently lodged in a Chicago jail and awaiting their sentencing.
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 court."
Rana was found not guilty of the Mumbai conspiracy, he said.
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 sources said.
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 told PTI.
"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," Theis said.
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 extradited.
"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 US department of Justice did not respond to the questions asked by the PTI 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.