Chinks in India’s armour: Why Mallya may escape extradition
Given India’s track record in such cases, could Vijay Mallya be extradited from the UK?india Updated: May 22, 2016 11:46 IST
UB Group chairperson Vijay Mallya and businessman and former cricket administrator Lalit Modi have more in common than a shared history in the Indian Premiere League (IPL). Wanted in separate cases of financial crimes, both have moved to the United Kingdom to evade arrest.
While the Enforcement Directorate (ED) got an order in March this year from a Special Court in Mumbai, to begin extradition proceedings against Modi, extradition is also possibly the only way left to bring Mallya back to the country.
Earlier this month, the UK said it cannot deport the liquor baron, but acknowledged the seriousness of the allegations against him. UK has also asked India to consider requesting mutual legal assistance or extradition. The Ministry of External Affairs (MEA) defines extradition as “the surrender by one state to another of a person desired to be dealt with for crimes for which he has been accused or convicted and which are justifiable in the courts of the other states.” With India’s poor success rate in extradition cases, however, Modi and Mallya seem to be in no immediate danger.
In 1997, musician Nadeem Akhtar Saifi – one half of the successful Nadeem-Shravan duo — was accused of murdering producer Gulshan Kumar. Saifi had been on a holiday in London at the time, and to avoid arrest, decided to stay on. The UK Supreme Court and House of Lords both turned down India’s extradition plea. A Mumbai sessions court finally acquitted Saifi in 2002.
Fugitive of law
“Extradition is a judicial process,” explains Pinak Ranjan Chakravarty, distinguished fellow, Observer Research Foundation and former secretary of the MEA. “The investigating agencies of the country that want someone extradited need to get an extradition order issued by the judiciary. The Home Ministry has to put the case together and then get the MEA to send it to the country where the accused is staying. The case then goes to the judiciary of that country and it has to pass muster there. The accused also gets to defend himself. The court of that country then decides whether the person will be extradited,” he explains.
WHAT IS EXTRADITION?
India has signed extradition treaties with 42 countries and has extradition arrangements with nine others. Replying to a question raised in Parliament, the MEA said this month that between 2002 and 2015, India managed to have 60 accused extradited for trials here. This included underworld don Abu Salem and his ‘partner’, actor Monica Bedi and gangster Chhota Rajan who was wanted in murder and kidnapping cases. But there are many who have managed to evade extradition. In UK alone, India reportedly has 131 pending extradition cases. The UK has never extradited any high-profile person to India in the 23 years since the two signed an extradition treaty in 1993.
In April 2014, for example, a UK court squashed the extradition order of Ravi Shankaran, accused of leaking Indian war room secrets to arms dealers. The order had earlier been signed by British home secretary Theresa May, who had given Shankaran 14 days to appeal against the order. The court had pulled up the CBI, saying no Indian court had commenced trial in the case, though it had been filed in June 2006 and that it seemed India no longer felt there was credible and admissible evidence against the accused. It was later reported that India had given up the pursuit, though Shankaran continues to be a proclaimed offender.
Chakravarty believes UK’s repeated stand against extraditing people to India has something to do with the money they are investing in that country. “The UK has become the foremost haven for criminals from the sub-continent, finding protection under a legal framework skewed in favour of asylum-seekers and fugitives. While the UK PM rails against corruption in other countries, its own institutional ‘corruption’ in embracing foreign criminals and their money smacks of utter opportunism under the camouflage of human rights,” he says.
INDIA’S EXTRADITION LAWS AT A GLANCE
Gaps in execution
It is, however, important to first plug the gaps in our own system. “There are irregularities in our paperwork. An extradition request has to follow a certain format. The correct procedure would be to involve legal experts from both countries. That doesn’t always happen,” says lawyer Avi Singh.
All extradition treaties are not identical. It is important to ensure that the crime for which an individual is being accused is an extraditable offence according to the treaty and judicial system of that country, cautions senior lawyer Sidharth Luthra, an expert in extradition law. Often our investigation results too are far from convincing, especially in a foreign court. “The Home Ministry is dependent on the police and other investigating agencies. These departments manage to provide little evidence in support of the case,” says a former diplomat on condition of anonymity. (Neither the Home Ministry officials nor those from the MEA responded to Hindustan Times’ repeated calls and email.)
Hanging in balance
Then, there are human rights concerns. “Many European countries are opposed to death penalty. So for offences where there is a possibility of the Indian judiciary awarding death penalty, countries are reluctant to extradite anyone,” says Luthra. In 2005, Portugal extradited Abu Salem to India. The Indian government had assured Portugal that no charges entailing death penalty or imprisonment of more than 25 years would be pressed against him, but such charges were later brought in, moving Portugal’s apex court to terminate the extradition in 2013.
The Supreme Court had said at the time that the decision of the Portuguese court was not binding on courts here. It had allowed the Central Bureau of Investigation (CBI) to drop additional charges slapped on Salem after his extradition. In April this year Salem again accused India of violating the extradition order after a Bhopal court issued a production warrant for him in a murder case. “Another apprehension raised to object to an Indian request by some countries is about the fairness of trials in India,” says Luthra. “The accused have also objected in many cases that they are being victimised, either politically or because of their community.”
If the papers are in order it is difficult for a treaty state to decline extradition. But at times even where the case is not weak, the state’s will is. “There are two sides to extradition – judicial and political. Till about a decade back, India didn’t have the necessary political clout to push our case. Now that we do, we should use that power,” says Luthra. Singh gives the example of the Bhopal Gas Tragedy. In December 1984, a gas leak from the Union Carbide plant had killed thousands in Bhopal. The then CEO of Union Carbide, Warren Anderson was arrested four days after the incident and released on bail. He left the country never to return. An extradition request was finally sent in 2003, which was turned down by the US. Anderson died in 2014, without having ever appeared in an Indian court of law. Singh questions why India continues to extradite people to countries that have not honoured our extradition requests. “It should be a reciprocal process,” he insists.
Till that happens, ‘commit crimes in India and then live abroad,’ can become the literal motto for lawbreakers in the country. Especially those with the power and money to relocate to a foreign country and purchase the best legal services available to oppose extradition attempts.