Of the numerous cases filed against Vijay Mallya, it may have taken just one to set the ball rolling for his extradition from the UK – the over Rs 900-crore IDBI Bank loan default case. This was the first time Mallya was accused of “fraud”.
One requirement of extradition is dual criminality – that the offence must be an offence in both countries and punishable by imprisonment of at least one year. Fraud is punishable in India by seven years of imprisonment and five to 10 years under British law.
While an extradition request was made in a Service Tax Department case against Mallya, it was in the IDBI Bank loan default case that the special CBI court issued a warrant for his extradition, leading to his arrest in London on Tuesday. He was soon released on bail.
While Mallya dismissed these developments in a tweet as “usual India media hype”, some of India’s top lawyers believe that when it comes to extradition, it’s a long road ahead for Mallya and both the governments.
“This is an elaborate politico-legal process which can have many twists and turns,” said reputed lawyer Aman Lekhi.
The Extradition Process
Amit Desai is one of the country’s top criminal lawyers and is representing Mallya in ongoing cases. He explained that first, a warrant for extradition has to be issued by an Indian court which the nodal agency, in this case the Central Bureau of Investigation (CBI), takes to India’s Ministry of External Affairs and then to UK’s Home Department, which refers it to the Magistrates’ Court. Then the UK process takes over.
UK’s Extradition Act, 2003 lists the procedure involved to extradite someone to non-European Category 2 countries such as India, with which the UK has international extradition arrangements.
Under the Act, first, an extradition request is made to the Secretary of State (Home Department) in the UK, who then decides whether to certify the request or not. After that, a judge in the Westminister Magistrates’ Court decides whether to issue a warrant for arrest and the wanted person is arrested and brought before the court. There is then a preliminary hearing after which an extradition hearing takes place. It is only once this hearing concludes and if the surrender of the wanted person isn’t prohibited under the Act, that the Secretary of State decides whether to order extradition or not.
The Secretary of State’s decision can be appealed at the High Court and the High Court’s decision can subsequently be appealed at the British Supreme Court, says Lekhi.
Desai pointed out that the British government can choose to overturn the court’s final verdict if it so desires.
UK law states that a requested person must be extradited within 28 days of the Secretary of State’s final decision to order extradition.
This entire process, experts said, could take one to three years. Memon cited the Nadeem Saifi extradition case that went on for over four years before the request for Saifi’s extradition was turned down by the UK.
For now though, Mallya is out on bail.
Majeed Memon, Senior Counsel There will be conditions such as: he will not be allowed to leave the city of London; he will appear before London police periodically and he will have to present himself before the Bow Street Magistrates’ Court’ where the extradition proceedings will take place.
As for Mallya’s chances of resisting extradition, top criminal lawyer Satish Maneshinde said Mallya is only a victim of circumstance and that the extradition proceedings are extraordinary and exceptional.
Satish Maneshinde, Advocate The extradition proceedings likely to take place in England would not meet the requirements of strict procedure in the UK as Mallya has several defences to prove that similar alleged offences are not punishable in the UK. Apart from that, his contention that he is being hounded politically and through the media may find favour with the UK courts and ultimately the Exchequer and Foreign Affairs Ministry who take the final decision to extradite a person.
On Mallya’s possible defence in court, Lekhi explained that he may claim this extradition process falls foul of legal principles and is politically motivated. Mallya might also take the plea of human rights or the issue of the incompetence of Indian courts.
Aman Lekhi, Senior Counsel He may or may not also take the plea that it’s been belated in the sense that these are long-pending commercial disputes where his involvement is not direct and he is not the only one who is in anyway concerned with this and for him to be singled out in this manner itself shows that the intent is not in anyway to vindicate the law but to make a spectacle out of him. So, these issues will be considered at multiple levels. They will be considered at a legal level and also at a political level.
Former Additional Solicitor General of India AS Chandhiok said Mallya may even say “everything is against me, the media is prejudiced against me. Everybody is prejudiced. I may not get a fair hearing there”. Chandhiok believes that although India’s judicial system has worked very well, “prejudice is still prejudiced”. According to him, another question Mallya may ask is “if the law of the land allows me to restructure my loans and you are not letting me do that and straightway going for my extradition, can you do that in law?”
For now, Mallya appears to be resting all hopes on the law of the land in Britain. “Lets wait and see. The case has to be decided on merits and evidence. Fortunately, there is an impartial justice system in the UK,” he tweeted.
Read more on the issue on BloombergQuint.