New Delhi: Just three days before the Trump administration took office, US attorneys informed a New York federal district court of their intent to seek a waiver of a provision in the extradition treaty between the United States and the Czech Republic that prevents the expansion of charges against Indian national Nikhil Gupta beyond those for which he was extradited.
The Indian businessman has been held in a New York federal prison since his extradition from the Czech Republic in June last year. Gupta is accused of playing a pivotal role in assisting former RAW officer Vikash Yadav in a plot to hire a hitman to target Khalistani separatist lawyer Gurpatwant Singh Pannun in New York.
In New Delhi, there is some expectation that President Donald Trump’s second term may bring reduced pressure from Washington, compared to the Biden administration, to address concerns about the alleged involvement of Indian government officials in the Pannun case. However, the new administration has yet to give any public indication of its stance on the matter.
Last week, the Indian government indirectly acknowledged the charges against Yadav, with a high-level government committee recommending “legal action” against “an individual”, indicating that it wanted to start with a clean slate on this front with the new US leadership.
The Narendra Modi government had initiated the probe in November 2023 after the US Department of Justice publicly revealed the indictment about the attempt by the Indian government official, with criminal assistance, to assassinate Pannun.
About a year after the first indictment, US prosecutors unsealed a second superseding indictment in October 2024 which identified Yadav as the Indian official previously referred to by the moniker ‘CC-1’. The US Department of Justice indicted him for three counts – murder-for-hire, conspiracy to commit murder-for-hire, and money laundering. Yadav is currently out on bail on an unrelated case, and his whereabouts are unknown.
In the same indictment, Gupta faced the three counts. He was arraigned on the superseding indictment on Oct 18 and again pleaded not guilty.
‘It seems they are seeking a waiver from the foreign government’
Two months later, during the status conference convened by Judge Victor Marrero of the Southern District of New York, it emerged that prosecutors intended to file an application. The docket entry for the January 17 proceedings, accessed by The Wire, stated that the “parties previewed their positions on the Government’s forthcoming application seeking a waiver of the rule of specialty pursuant to the bilateral treaty between the United States and the Czech Republic”.
Speaking to The Wire, Jacques Semmelman, a partner at New York law firm Katten Muchin Rosenman, a former Assistant US attorney and expert on international extradition law, confirmed, “The fact that the issue of specialty has come up indicates that the US Attorney’s Office intends to expand the charges”.
The Rule of Specialty restricts the prosecution of extradited individuals to the offences for which they were extradited.
Gupta was charged with an additional money laundering count in the October 2024 indictment. However, when he was extradited in June 2024, the Czech Justice Ministry explicitly stated that he was handed over to the US solely for two charges: “committing the crime of conspiracy to commit a murder for hire with the intent to cause death, in violation of Title 18, United States Code, § 1958(a), and the crime of murder for hire with the intent to cause death, in violation of Title 18, United States Code, § 1958(a).”
Semmelman further explained, that based on the wording, “it seems they are seeking a waiver from the foreign government”. He noted that that the “language of ‘waiver’ typically doesn’t arise in terms of what the court can order”.
“If the court rejects the defendant’s attempt to dismiss additional charges on the grounds of specialty, that wouldn’t normally be termed a waiver,” he said, adding, “A waiver typically means the contracting party – in this case, the Czech Republic – agrees to relinquish its rights as a government and waive its right to enforce the doctrine of specialty”.
Applicable domestic legislation provides for the possibility of extension of the extradition
The Czech Justice Ministry told The Wire that the bilateral extradition treaty with the United States “does not include any provisions allowing the requesting state to obtain a waiver of the rule of speciality.”
However, Czech Justice Ministry spokesperson Markéta Andrová clarified that applicable domestic legislation “provides for the possibility of extension of the extradition.”
This procedure, she explained, would require a formal request for the extension of extradition to cover additional crimes not included in the original request. Such a request would need to be submitted to the Ministry of Justice of the Czech Republic.
“The Ministry of Justice of the Czech Republic has not received any such request in the matter of Mr. Nikhil Gupta,” said the spokesperson.
Andrová further noted that domestic legislation provides another path for expanding charges. The Czech government’s consent “would not be required in case that Mr. Gupta declared before a foreign court after being extradited that he waives the application of the rule of specialty.”
Under the US legal system, the path forward remains ambiguous, as courts in different jurisdictions have issued mixed rulings on the issue of waiving the rule of specialty to expand charges.
Also Read: ‘Do It Quickly’: The Timeline of the Alleged Plot to Murder Gurpatwant Singh Pannun
“One key issue that comes up is this: when a person is extradited from another country to the United States to face prosecution on specific charges, the question becomes whether the United States can expand the charges beyond those on which the person was surrendered, and who has the legal standing to raise this issue – the defendant or the foreign government. Courts in the US have been inconsistent on this issue, with no clear answer,” said Semmelman.
He also pointed out the unusual stance taken by the Southern District of New York (SDNY) in this case, diverging from its typical approach.
“It’s unusual in my experience for the Southern District of New York to announce that they are seeking a waiver of the doctrine of specialty from a foreign government, as SDNY is typically known for disregarding it,” stated Semmelman.
According to him, “SDNY typically proceeds by adding charges, and if the foreign government doesn’t object, the US government argues that ‘the foreign government didn’t protest, so there’s every reason to proceed’.”
“So, it’s certainly unusual for the US government in SDNY to publicly announce its intention to seek a waiver. What I don’t know, due to the lack of access to court transcripts, is how we arrived at this point,” he said.
The Wire has contacted both the US Attorney’s Office for the Southern District of New York, as well as, the defence lawyers of Gupta, but has not received any response.
