Don’t hold your breath, Vijay Mallya isn’t coming back to India anytime soon

His arrest is only the beginning of a long and hard politico-legal battle for extradition.

Following Vijay Mallya’s arrest, the media triumphantly declared that he would soon be extradited, but this enthusiasm waned when he was granted bail by the extradition judge at Westminster Magistrates’ Court. The battle to bring Mallya back to India to answer for his alleged crimes has only just begun and the Indian government will have to satisfy several onerous requirements set out in the United Kingdom’s domestic Extradition Act 2003, the European Convention on Human Rights and the Extradition Treaty signed between the two countries in 1993.

So far so good

As the UK has designated India a “Category 2” territory under its Extradition Act, the Indian government was required to provide information establishing a prima facie case against Mallya in its extradition request to the Secretary of State. This requirement was satisfied and led to Secretary of State Amber Rudd’s decision to certify and forward India’s request to the designated extradition judge.

That a warrant was issued for Mallya’s arrest bodes well for India for two reasons. First, the Extradition Act prevents the judge from doing so unless there are “reasonable grounds” to believe that an “extradition offence” has been committed. Second, it indicates that the judge was satisfied that the evidence submitted by India justified the issuance of an arrest warrant for Mallya.

That Mallya would be granted bail upon being produced in court was to be expected, as was the seizure of his (now revoked) passport and the payment of £650,000 as bail security, an amount he stands to forfeit if he does not attend the extradition hearing that has been set for May 17. At that hearing, the judge will have to decide a series of questions, prime among which will be whether Mallya has actually committed an “extradition offence”.

Questions of law

Under Article 1 of the treaty signed between the UK and India, both countries are obliged to extradite any person who stands accused of committing an “extradition offence” in one country and is found in the territory of the other. But what exactly is an extradition offence?

Article 2 states that “an extradition offence for the purposes of this Treaty is constituted by conduct which under the laws of the Contracting State is punishable by a term of imprisonment for a period of at least one year”. What this basically means is that the extradition judge will have to examine the material submitted by the Indian government to determine whether Mallya’s actions, if they had been carried out on British soil, would be punishable with a term of imprisonment exceeding 12 months.

With Mallya claiming that he has already been convicted without a trial, he is likely to instruct his lawyers to make the fair trial argument before the judge. His lawyers will also point out that India’s criminal justice system is notoriously slow and Mallya will languish as an undertrial prisoner for years given that he will almost certainly not be granted bail by an Indian court. 

The judge will focus solely on Mallya’s conduct in India — such as using money from a loan taken from the IDBI Bank in 2009 for his personal use instead of spending it on buying aircraft parts for Kingfisher Airlines — in determining whether Mallya has committed an extradition offence. These actions have led to Mallya being accused of cheating and conspiracy under the Indian Penal Code, money laundering under India’s Prevention of Money Laundering Act and criminal misconduct by a public servant (as he was an MP at the time) under the Prevention of Corruption Act, among various other offences.

It is important to note that the extradition judge is not concerned with the Indian law or the legal ingredients of an offence under India’s Penal Code or Prevention of Money Laundering Act or Prevention of Corruption Act. As cheating, conspiracy, criminal misconduct by a public servant and money laundering are all punishable under UK law and attract prison terms in excess of 12 months, it is likely that if the Indian government presents irrefutable evidence at the hearing, which it seems to have already done on paper, the judge may conclude that Mallya’s offences are extraditable.

Escape routes

The matter does not end there, however. The judge will next have to ascertain whether there are any grounds for barring Mallya’s extradition to India under both the UK’s domestic law and the Extradition Treaty. Mallya will again be on the back foot when it comes to proving to the court that there is a bar to his extradition as three of the four statutory grounds do not even apply to him.

Mallya’s lawyers are likely to argue that there are extraneous considerations, which is the fourth statutorily recognised ground, barring his extradition and will probably invoke Article 9 of the treaty to bolster their case. Extradition may be refused under Article 9 if Mallya can prove that the warrant purports to be for an extradition offence but is in fact issued for the purpose of prosecuting him on account of his political opinions.

With Mallya tweeting incessantly about how there is a witch-hunt against him and that he is being made an example of in order to demonstrate that India’s banks are cracking down on defaulters, it should come as no surprise if his lawyers argue that he is being persecuted. The Indian media’s dogged campaign and all the hyperbole that goes with it is likely to strengthen Mallya’s case, along with the fact that he is a former MP and the government has not shied away from politicising his extradition.

Even if the Indian government is able to convince the court that Mallya is not being persecuted, the judge is bound to examine whether Mallya will get a fair trial in India under Article 6 of the European Convention on Human Rights, an instrument which has legal force in the UK and imposes obligations that it must respect. The judge will have to follow the jurisprudence of the European Court of Human Rights, which enforces the convention, and halt the proceedings if he concludes that there’s a risk Mallya would be denied a fair trial in India.

With Mallya claiming that he has already been convicted without a trial, he is likely to instruct his lawyers to make the fair trial argument before the judge. The lawyers will also point out that India’s criminal justice system is notoriously slow and Mallya will languish as an undertrial prisoner for years given that he will almost certainly not be granted bail by an Indian court.

Political calculations

Only if all these legal arguments fail will the judge take the decisive step of sending the case back to the Secretary of State for a decision on whether Mallya should be extradited. It is worth noting that the decision to extradite is in fact an “executive decision” and is made by a politician. The Secretary of State is certain to accede to India’s request if the judge sends the case back, especially considering the fillip Mallya’s extradition will give to India-UK relations.

Prime Minister Theresa May’s decision to call a snap election, to be held in June, means that the next British government will have to take a decision on Mallya’s extradition. This is not a cause for concern, though, as May’s Tories are widely expected to trounce the Labour Party and return to power. May is desperate for better trade relations with India, and it has been conveyed to her in no uncertain terms that Mallya’s extradition would be seen as a goodwill gesture.

Still, all is not lost for Mallya even if the Secretary of State grants India’s extradition request. He has an automatic right to appeal to the High Court in London, and then to the Supreme Court if the high court’s decision does not go in his favour. Given Mallya’s considerable financial resources, the Indian government should get set for a long and arduous battle if it is to culminate in the extradition of the former King of Good Times.

Abhishek Sudhir trained as a barrister in England and is the founder of Sudhir Law Review, a legal education website.

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