Court hearing to get Vijay Mallya back begins today: Will UK extradite him?
Thousands of documents have been sourced from India, seeking to prove fraud charges against Mallya.india Updated: Dec 04, 2017 11:44 IST
A high-octane legal drama is set to be played out in the Westminster Magistrates Court from Monday. Can India finally succeed in putting together a case that holds up in a British court and secure the second extradition from the UK, 25 years after signing an extradition treaty?
On the one side is Vijay Mallya, the most high-profile individual (requested person in legalese) sought by India so far.
There are serious charges of financial irregularities against him; the total amount involved is significant by any standards (around or over Rs9000 crore or over a billion pounds); he has been arrested twice; but he remains defiant.
On the other side is an uncharacteristically confident Indian government ( or requesting judicial authority). There has been a rare energy and attention to detail in recent months to prepare the paperwork.
This, in the context of most previous extradition cases failing due to poor quality of Indian paperwork. Indeed, the one successful case involves Samirbhai Vinubhai Patel, who, in late 2016, agreed to be extradited, making India’s task easier.
Thousands of documents have been sourced from India, seeking to prove fraud charges against Mallya.
Mallya’s case has often figured in recent bilateral talks, including during the February visit here of Union finance minister Arun Jaitley.
◼ March 2, 2016: Arrives in London from India
◼ February 21, 2017: India’s extradition request certified by home secretary
◼ April 18, 2017: Arrested and bailed
◼ June 13, 2017: Case management hearing; bail extended until December 4
◼ July 6, 2017: Case management hearing; Indian high commission says evidence of "falsities and misrepresentations" by Mallya has been provided
◼ September 14, 2017: Case management hearing; photo evidence of barrack number 12 in Arthur Road jail, Mumbai, where Mallya would be lodged if extradited, submitted
◼ October 10, 2017: Mallya arrested and bailed again, after India laid further money-laundering charges to the original fraud charges
◼ November 20, 2017: Case management hearing; judge confirms the full extradition trial to begin at 10 am on December 4; Mallya insists all charges are "baseless and fabricated"
◼ December 4, 2017: The main extradition trial to begin over eight days (judgement likely on December 14).
SIGNED : September 22, 1992FOR INDIA : SB Chavan, Union home ministerFOR BRITAIN : Kenneth Clarke, Home secretaryCAME INTO FORCE : November 15, 1993NOTIFIED IN GAZETTE OF INDIA : December 30, 1994
Samirbhai Vinubhai Patel Indian citizen, on October 18, 2016, in a case related to the 2002 Gujarat riots. Patel ‘consented’ to the extradition.
There is some satisfaction in Indian circles that Mallya was arrested in April within two months of India making the extradition request, unlike previous cases when it took much longer.
Prison conditions in India and the record of treatment of inmates has been a major issue raised by individuals seeking to avoid extradition.
These surfaced recently in alleged cricket bookie Sanjeev Kumar Chawla’s case on October 16.
Indian court judgements, human rights reports and newspaper accounts (including at least one in Hindustan Times) were also cited to allege inhuman treatment and torture.
In Mallya’s case, India is offering inspection and oversight of the prison by the Maharashtra State Human Rights Commission, or even by the National Human Rights Commission, to ward off criticism of overcrowding or other issues that plague most Indian prisons.
But the issue of prison conditions is just one among many raised by Mallya’s defence. The key issue is whether India – through the Crown Prosecution Service (CPS) – can make a convincing case that Mallya will receive a fair trial if extradited to India.
Equally important is the question: Does non-payment or diversion of bank loans, or a company going under, attract the same legal opprobrium in Britain as in India?
Under Article 2 of the India-UK extradition treaty, extradition can take place only if the offence is punishable under laws of both countries by at least one year.
Legal experts believe civil cases have less prospects of success in extradition proceedings compared to criminal cases.
The domain experts that Mallya’s team has lined up reflect the contours of his defence: accounts, politics, law, aviation and prisons.
At least two of the experts (law expert Martin Lau and prisons expert Alan Mitchell have previously appeared in cases that went against India).
The seemingly better quality of Indian documentation in Mallya’s case includes a change of language in official ‘assurances’: from verbose, bureaucratic generalities to specific commitments.
An ‘assurance’ by the ministry of home affairs in Chawla’s case was dismissed by the same court trying Mallya as ‘insufficient’.
The Indian high commission said in a rare press note on the Mallya case on July 6: “All documents relating to the case including charge sheets, supplementary charge sheets, non-bailable warrant of arrest, evidences and witness statements have been given to the UK side”.
“Evidences regarding the falsities and misrepresentations made by Mr.Vijay Mallya and officials of the Kingfisher Airlines have also been provided. UK side are satisfied with the material supplied by the Indian agencies and will be used by them appropriately during the extradition proceedings”.
“Authorities in India have provided all evidences in support of the extradition request. Evidences presented makes out a strong prima facie case against Mr.Vijay Mallya. Despite delaying tactics, it has been possible to have an indicated date in December 2017 for the hearing and the UK counsel Crown Prosecution Service (CPS) will continue to work towards an expeditious hearing of the entire case”.
In court, both sides are represented by legal luminaries such as Clare Montgomery (for Mallya) and Mark Summers (for India through the CPS). The trial is expected to last eight days, beginning with depositions by witnesses on December 4.
Both sides will have the option to appeal against the decision in the high court and the Supreme Court.
One the final court agrees to an extradition, the decision to extradite or not, will be made by the Home secretary, currently Amber Rudd.
Tiger Hanif, who is wanted in connection with two explosions in Gujarat in 1993, exhausted all legal avenues to avoid extradition in 2013, but made further representations to the Home secretary (then Theresa May). Rudd is yet to sign off on the extradition.
Mallya was exempted from appearing in person in the case management hearings so far, but he has still attended most of them since his arrest and bail in April, seemingly enjoying the media attention outside the court.
For eight days from December 4, he will return to the top of news bulletins and newspaper headlines until the judgement is delivered (likely on December 14). But the judgement is unlikely to be the last word.