India Awaits Mallya’s Extradition: Need For More ‘Streamlining’

Image of Vijay Mallya used for representational purposes.

(Photo: Altered by The Quint)

It has been five years since business tycoon Vijay Mallya fled India on 2 March 2016. His extradition from the United Kingdom is still awaited despite the fact that India has won all the court battles in UK as of 14 May 2020.

The final call on the extradition is in the UK Home Secretary’s hands. Almost a year later, the wait for his extradition seems to be unending. Mallya had fraudulently obtained huge loans from a consortium of banks led by the State Bank of India, for running his Kingfisher Airlines.

By the time he fled India in 2016, his dues to the banks were to the tune of Rs 9432 crore. However, at that time, only IDBI bank had filed an FIR against him for a fraud of Rs 900 Crore. Other banks in the consortium delayed the filing of FIRs — perhaps fearing that it may involve and implicate their own officers.

How India Established ‘Dual Criminality’ in Vijay Mallya Case

The Indian government acted swiftly and cancelled his passport. It further notified the Indian embassies across the globe to locate and restrain international travel. Additionally, a request was made to Interpol for issuance of a Red Corner Notice against him which would allow law enforcement agencies worldwide to pursue the detention and provisional arrest of Mallya pending extradition.

He was found to be in London. India made an extradition request to UK under the extradition treaty signed between India and UK on 22 September 1992 and ratified on 15 November 1993. The extradition treaty requires certain preconditions. First and foremost is dual criminality — which means that offences under which a person is being extradited should be a crime in both the countries. Second, the punishment for the crime in the requesting state should be more than one year. Third, the punishment should not be death penalty (in that case, the requesting state can give the commitment that the death penalty will not be imposed). Fourth, the charge sheet in the court should have been filed in the requesting state and the court should have issued an arrest warrant.

All these conditions were met and were incorporated in the extradition docket. India was able to establish dual criminality — as the offences of cheating, corruption and money laundering (the offences in which Mallya has been charged) in India correspond to offences in the UK of ‘making false representation’, ‘conspiracy to defraud’ and ‘money laundering’.

The CBI’s investigation led the agency to evidences that established that Vijay Mallya had obtained loans by giving misleading and factually incorrect information to banks, and by colluding with the bank officials.

UK’s Extradition Terms

The Enforcement Directorate (ED) tracked the money laundering trail through financial analysis and attached his properties which were worth more than Rs 9,800 crore (market value).

Both the agencies filed charge sheets before the courts and sent the extradition requests to UK through the Ministry of External Affairs (India) in February 2017.

The UK implements the extradition treaty through its domestic legislation ‘The Extradition Act 2003’.

This act provides a different procedure depending upon whether the extradition request is received from a Category 1 country (member of the European Union) or Category 2 (other nations).

As India fall under Category 2B, the extradition request is decided at the political as well as at the legal level — that is, the decision from the Secretary of State and the court respectively.

The Indian government also used diplomatic channels which led to the Home Secretary of State’s decision to refer the matter to the court to decide the extradition on legal grounds.

Vijay Mallya’s Defences Against Extradition

Vijay Mallya put up a defence against extradition on a number of grounds. First, he argued that prima facie no case is made out against him (The UK Extradition Act has prima facie requirement only for category 2B nations and not for category 1 and category 2A nations).

The court examined the evidences produced by the Indian agencies and was satisfied that prima facie there was a case against Mallya. The second argument was about the admissibility of the evidences in the court, which were deemed admissible by the court.

Third, the court also rejected his argument that he was being prosecuted in India on account of his political opinion.

Finally, his argument that he would face human rights violations in an Indian prison was also rejected by the court.

The court, after completion of the hearing on 10 December 2018, recommended in favour of his extradition to India. The case was then forwarded to the Home Secretary of State for a decision on whether the extradition should be ordered. The Home Secretary approved his extradition to India on 4 February 2019.

Consequently, Vijay Mallya filed an appeal in the UK High Court against the order of his extradition by UK’s competent court, and later approval by the UK Home Secretary. The appeal was dismissed by the High Court on 20 April 2020.

India’s Tough Stance on Fugitive Economic Offenders

On 14 May 2020, the High Court also rejected his leave to appeal in the UK Supreme Court against his extradition, and paved the way for his extradition to India. Although the UK courts have recommended his extradition, his extradition has been delayed due to the ‘resolution of secret legal matter’ which is not being disclosed by the UK government.

There are unconfirmed reports that Vijay Mallya has applied for asylum in the UK — and his extradition will not be finalised till the time the decision is taken on his asylum petition.

Till date, India has made at least 24 extradition requests to the UK since the signing of the Treaty of Extradition in 1992, however, only two persons have been extradited — Samirbhai Vinubhai Patel was extradited on 18 October 2016 and Sanjeev Chawla was extradited to India in February 2020.

India’s tough stand on fugitive economic offenders in the recent past is commendable.

It enacted the Fugitive Economic Offenders Act in 2018 (FEOA). The ED got Vijay Mallya, Nirav Modi and others declared as Fugitive Economic offenders under this act from the courts.

India has made concerted efforts and signed a number of treaties for extraditions resulting in extraditions treaties with 50 countries and extradition arrangements with 11 nations.

Diplomatic persuasions and vigour have resulted in 27 extraditions in the last few years.

A UK court has recommended the extradition of Nirav Modi on 25 February 2021, and Antigua and Barbuda have cancelled the citizenship of Mehul Choksi.

The delay in the execution of extradition clearly brings out the need for a more streamlined process and stronger coordination between nations in the crackdown against corruption and money laundering.

(Karnal Singh is a 1984 batch IPS officer and is the former chief of the Enforcement Directorate (ED). He tweets @singhkarnal2. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)