New Delhi: A US court’s indictment of Adani Group chairman Gautam Adani, his nephew Sagar Adani, and several others on charges of securities fraud, wire fraud, and violations of the Foreign Corrupt Practices Act (FCPA), marks the formal beginning of the criminal proceedings against accused persons in the US.
It is alleged that the Adanis and several others planned to offer bribes worth as much as Rs 2,029 crore to government officials in India to ensure business came to Adani companies, conspired to hide this from US investors who lent money to the company, and obstructed investigation by US authorities into the matter. An arrest warrant has also been issued for Gautam Adani and Sagar Adani.
The indictment sparked a political slugfest in India, with the leader of the opposition demanding Adani’s arrest. Meanwhile, the BJP has countered by pointing out that all the states mentioned in the indictment as having accepted bribes were, at the time, governed by opposition parties.
In the backdrop of this indictment, ThePrint takes a look at the indictment process in the US criminal justice system, what it means and what can be a possible outcome.
Also read: How Gautam Adani’s business partners tried to place entire ‘bribery blame’ on him, nephew Sagar
As per the criminal justice system, the process of indictment is the first step in commencement of criminal proceedings against any accused persons. It is an equivalent of a chargesheet in India, which lists out charges against the accused after an investigation.
The Department of Justice defines indictment as formal announcement of charges and accused persons are formally served notice containing the list of charges against the person.
For an indictment, a grand jury comprising a maximum of 23 people from a “fair cross-section” of citizens, living within the jurisdiction of the court, is given all the documents and evidence gathered by investigating agencies and witnesses. In this, a minimum of 16 jurors are required to be present to hear evidence.
Based on materials available on record, the grand jury takes a call on whether the evidence is enough to initiate proceedings against the accused.
All proceedings and statements made before the grand jury are kept confidential and the indictment is unsealed. It is only made public after the jury has made a decision after reviewing all evidence which they think is sufficient to start trial, following which it is made public.
This is also what happened in the case of the alleged plot to kill Sikh separatist Gurpatwant Singh Pannun.
A former officer of India’s external intelligence agency, the Research and Analysis Wing (R&AW), Vikash Yadav was put on most wanted by the Federal Bureau of Investigation (FBI) after the United States District Court, Southern District of New York issued an arrest warrant against him a week prior on 10 October. He, along with his associate, Nikhil Gupta were indicted last year.
What comes after
The next step in the criminal justice system is formal issuance of an arrest warrant, which has been done in the case of Adanis.
This warrant formally authorises law enforcement agencies to take the accused into custody for appearance in court.
This is followed by the appearance of the accused before the court where charges are formally pressed against them.
At the level of arraignment, accused persons have three major choices—to plead guilty, to plead not guilty or no contest, in which accused persons neither deny nor accept any charges made by the prosecutors.
But if the accused is not in the US and his or her location is not known, the US authorities may request the Interpol to issue a Red Notice against the accused, based on the evidence they have collected in the particular case.
The Red Notice, however, does not compel the nation where the accused is to make an arrest.
In Adani’s case, though, there is no need for a Red Notice as his location is known to be in India, so the US authorities can straight move away an extradition request with India.
Senior Advocate Vikas Pahwa told ThePrint that while US authorities might seek to proceed with a trial in absentia, such a trial raises significant concerns about fairness and due process, particularly when the accused is not present to contest the evidence or allegations.
“Trials in absentia are generally seen as an extraordinary measure, and their outcomes may lack international legitimacy if the accused is not provided adequate opportunities to present a defense or challenge the allegations,” he said.
He added that he had the opportunity to conduct a trial in absentia in the Court of Athens, Greece, in the year 2015, on behalf of an accused residing in India, and successfully secured his acquittal on all criminal charges. He, however, added that the trial in absentia was possible in Greece because the Greek government had enacted legislation permitting such trials, provided the accused was voluntarily absent and duly represented by counsel in court.
Pahwa said that the US judicial system also recognises trials in absentia, but its application in criminal cases is extremely limited.
“Typically, such trials are only permissible when the accused is voluntarily absent after the proceedings have commenced, and they must comply with stringent due process standards,” he said.
According to procedure, the defendants also get an option of getting into a plea bargain with the US prosecutors under which they agree to confess to their crimes and offer revelations required by the law enforcement agencies in exchange for some concessions by the prosecutors. For instance, a Lashkar-e-Taiba David Coleman Headley signed a plea bargain with the US authorities and spilled beans on the other members of his module in exchange for the US not extraditing him to India.
If government authorities and accused reach a plea bargain agreement, they can forgo a trial subject to approval by the competent court which may or may not accept the agreement between prosecutors and defendant.
If the defendant and prosecutor do not go ahead on a plea bargain agreement or the court rejects the agreement, the case moves on to the final stage of trial.
During the process of trial, attorneys for both the defendants and the prosecutors have the right to cross examine witnesses deposed by both parties as well verification of documents and evidence relied upon by either party before the judge reaches a decision.
The final judgment given by the trial court can be challenged at various levels ending at the Supreme Court level, just as in the Indian criminal justice system.
The role of India-US Mutual Legal Assistance Treaty
The US and India have a Mutual Legal Assistance Treaty (MLAT) that mandates sharing of information and evidence.
In this case, the US can ask India to share certain documents, information, testimonies, that will assist in their investigation. This evidence is then admissible in court.
According to the US Department of Justice website, MLATs enable law enforcement authorities and prosecutors to “obtain evidence, information, and testimony abroad in a form admissible in the courts of the Requesting State.”
“As a general matter, MLATs require the Requested State to provide the Requesting State with certain kinds of assistance or evidence such as documents, records, and testimony, provided the requirements of the treaty are satisfied,” it says.
The process is streamlined through the establishment of a “Central Authority” within each country to make, receive, and facilitate the execution of requests for evidence intended for use in criminal investigations, prosecutions, and related proceedings.
Pahwa explained that MLATs are designed to facilitate cooperation between jurisdictions—not to supplant the sovereignty of domestic legal systems. As such, any alleged bribery involving Indian public officials must first be examined within the framework of Indian law.
“The credibility and admissibility of evidence collected by US authorities must also be critically examined. It is essential to determine whether the evidence adheres to internationally accepted standards of collection and verification, and whether it has been obtained independently or through cooperation with Indian authorities under MLATs,” he said.
“Such cooperation must ensure that the evidence aligns with Indian legal frameworks. Additionally, there is a risk of bias or a lack of contextual understanding, particularly when allegations pertain to domestic matters involving sovereign Indian entities,” he said.
Pahwa said that the allegations of bribery involving Gautam Adani reportedly pertain to acts that allegedly occurred in India and involve Indian government officials. Such allegations, he said, fall squarely under the purview of Indian law, specifically the Prevention of Corruption Act, 1988 (PCA).
“Under this framework, any investigation or prosecution must be conducted by competent Indian authorities, such as the Central Bureau of Investigation (CBI) or the Anti-Corruption Branch of the police, and tried in Indian courts,” he saud.
He added that US laws, including the Foreign Corrupt Practices Act (FCPA), cannot override the jurisdiction of Indian courts for acts committed within India’s sovereign territory.
“The FCPA primarily applies to companies or individuals with substantial ties to the US, such as transactions conducted through US-based entities or financial systems. If the alleged actions lack a direct US nexus, the indictment risks exceeding its jurisdictional limits,” he said.
He added that the defense may assert that Adani and his companies have not directly used US-based financial systems or entities in connection with the allegations and without such a direct connection, the indictment under US law may lack validity.
“While the US might request cooperation from Indian authorities under MLATs, extradition or enforcement of US laws would require credible findings under Indian law,” he said. “Unless an Indian investigation substantiates these allegations, the matter remains firmly within India’s jurisdiction, as mandated by international legal norms and principles of sovereignty.”
(Edited by Zinnia Ray Chaudhuri)
Also read: ‘Vindicated’ by Adani’s US indictment, Rahul says Modi can’t arrest him. ‘He controls BJP funding’
