Bringing back fugitive liquor baron Vijay Mallya could be a difficult and long-drawn process for India as the extradition treaty with Britain has layers of safeguards for him, legal experts said on Wednesday.
The focus of the Mallya saga has shifted to extraditing him after Britain told India it cannot deport the former Rajya Sabha member, who left the country owing Rs 9,400 to several banks. Indian investigators also want to question him in a money-laundering case.
The British government, however, said that it could consider an extradition request for Mallya.
“It is difficult to persuade authorities in UK that committing a financial crime makes a person a fugitive. Also, their sensitivity towards any human rights violation makes extradition from England difficult for any country,” said criminal lawyer Majeed Memon.
The dual criminality clause is key to initiating extradition proceedings, according to the experts. This means the accused has to be charged for an offence that is recognised as a crime in both countries.
But the accused have several grounds of defence, as provided under Article 9 of the extradition treaty between the two nations.
A person can challenge extradition citing possible persecution or the “trivial nature” of offence.
Nadeem Saifi, wanted in the murder of T-Series founder Gulshan Kumar, managed to dodge extradition after a prolonged legal battle.
Memon pointed that a UK court observed that India’s appeal to extradite Nadeem was not in the interest of justice. The court also suspected witch-hunt by Mumbai police. Memon was part of Nadeem’s team of legal advisors.
The option to appeal at every level of judiciary, available to a person being extradited from UK, further complicates matters.
The case of the Navy war room leak accused Ravi Shankaran is a case in point. After almost 10 years, Indian agencies have not managed to extradite him from the UK.
This despite UK’s crown prosecution service, on behalf of India, argued that the CBI had substantial evidence proving Shankaran’s active role in leaking defence secrets to arms dealers and hence deserved to be extradited to India.
There is also the aspect of UK’s crown prosecution arguing the case on behalf of India, “So it depends on how convinced they are” points a government official, who did not wished to be named. And most importantly, the onus is on investigating agencies to make a water tight case to ensure extradition.
Experts pointed cited the failed attempts to extradite underworld don Dawood Ibrahim’s aide, Iqbal Mirchi, wanted in connection with the 1993 Mumbai serial blasts case. UK turned down two requests for extraditing Mirchi, in 1995 and 2011, citing lack of evidence.
India’s best chance of getting Mallya back through the extradition route will be to use ED’s money laundering case, according to sources. Money laundering is a criminal offence in both India and UK.
But even with a money laundering case against disgraced cricket czar Lalit Modi since 2012, ED managed to get an arrest warrant only in 2015.
“India’s best chance would be to persuade Mallya to come back. Otherwise, it is a risky, time-consuming as well as expensive process to follow on the path of extradition,” Memon added.