Aniket Pujari
Muthupandi Ganesan, Barrister & Partner at Aliant Law and Anuradha Dutt, Managing Partner at DMD Advocates, and Ketan Mukhija, Senior Partner at Burgeon Law discussed the options before the Adani Group in light of the complexity and significance of the unfolding legal battle.
These are the verbatim excerpts of the interview.
Q: How do you interpret a lot of the specific counts on which Gautam Adani and the others have been charged and what would your first thoughts be, what would the way forward be for something like this?
Ganesan: In terms of the way forward, I think, is to look at the wide breadth and depth of the investigation that’s been carried out. What we are able to see from the sealed indictment that’s now open and we can see how detailed the investigation has been, the level of evidence they have gathered, whether it text messages, Excel spreadsheet, photocopies of actual what appears to be documents that has been specifically created to demonstrate the amount of conspiracy that has allegedly took place over a period of four years involving seven different Indian companies within the States in terms of supply of energy.
I think going forward, the amount of data that needs to be considered both by the public and by the investors and by various different companies that are involved in this particular green energy scandal, if I can put it that, is vast, and it will take some time to really digest and understand the import of all the evidence has been gathered.
Of course, it has the significance effect in terms of companies that operate globally, and the importance of foreign practices act of the US, and of course, the foreign extortion act of the US, and the outreach of that involving people and officials who are in power, but also, more importantly, how it, in fact, impacted the investors in the US. So I think it’s a very, very interesting situation we got here. And of course, this is just the beginning of the indictments and what this means, of course, in terms of the arrest warrants, we have seen, we will have to see how this develops, but is a long way to go. Clearly, a very, very important milestone investigation, in my view, in terms of international efforts against bribery and corruption worldwide.
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Q: If I were to ask you, what does this mean in terms of their possible arrest and moving jurisdictions, because the indictment papers which have been opened, or even the SEC document, they do not explicitly say anywhere that there is an arrest warrant issued against them, does the order, does the indictment immediately imply that, yes, they can be arrested by the US court or by the US officials to produce them before the before the US Justice forum, or does the possibility of arrest warrant not arise immediately? Second, does this restrict their travel? Can they travel to the United States or any other country for that matter? Because we believe that this is the indictment and the SEC order will be shared with all friendly countries, with the United States and US has extradition treaties and legal agreements on economic offenders with other nations as well. So does this significantly restrict the movement of the Adani Group leaders, the Azure Power leaders and other executives mentioned in this order?
Dutt: I don’t think so at this time, but I am raising a little different question. You see, this is only what we know in India, like a charge sheet. I have been saying this, that in India, you are going after public figures only on the basis of charge sheet, and you are saying they are corrupt, you are arresting them and allowing their images to be totally tarnished. There is just a charge sheet, there is no as yet, no trial, no conviction. But everybody is treating it as if there is some prima facie case that has been held against them by some court. No. So I do believe that this is something which, yes, a US, court has got, has opened the indictment, there will probably be a trial, etc. But the point is he can’t be, he or others can’t be held guilty before there is an actual conviction.
Secondly, what I find a little strange in this case is that all the companies that they have mentioned are belong to opposition states at the relevant time, Tamil Nadu was under Stalin, Odisha was under Bijayananda Patnaik and so on and so forth. So, somebody is definitely targeting Gautam Adani, but with opposition people.
Third thing that I find strange is that you say that somebody’s phone has some kind of a detailed analysis on how to corrupt people, that this is something which I find strange. But I mean, these are issues that will come up in the court, whether to arrest them, etc. at this stage I don’t think that issue should arise at this stage.
Whether they can travel, if there are arrest warrants, will it go to Interpol things like that that’s something we will have to see when it unravels. But I do feel that we should not fall in the same trap as we have fallen for political leaders in India, that merely because a charge is filed means that he is guilty.
Q: What are the options before all the nine accused in this case right now? This is the start of the case, but we have been told that this is a grand jury trial. The case is now at a very advanced stage, and some of these charges that have been made are very serious, so even though everyone mentioned this case is innocent until proven guilty, what are the immediate implications and what are the options?
Mukhija: In this case, they have to defend themselves and gather all the evidence, especially the documentation trail and their communications, correspondence in exchange, which they have had allegedly with all the seven discoms and the officials they are at to be able to defend themselves before the US authorities.
Therefore, as the first speaker mentioned, a lot of emphasis, a lot of throttle will be placed in terms of the evidence that is there that has been collected by the authorities, that has been used in terms of the initial indictment, as well as the documentation which goes behind it, as well as the verbal evidence, etc. So a lot of a lot of jugglery will go into deciding the balance of probabilities. And then the FCPA, which has an extra territorial jurisdiction as well will come into play.
In terms of the opportunities or the avenues which are available to them of course, the first step would be to have a legal counsel there and then gather all the evidence and put up a robust and resilient kind of defence before the US courts. As far as the Indian courts go, currently, the board the which is the Securities and Exchange Board of India, can take a suo moto cognizance, but we have seen that in the past. But anyway, there is no prime official investigation which has been yet started. So I think we will wait for that, and then the remedial action can be taken by the accused.
For full interview, watch accompanying video
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