On Monday, 20 April, the High Court of England and Wales rejected Vijay Mallya’s appeal against the 2018 order which had paved the way for his extradition to India, ending his most likely option for a reprieve.
Back on 10 December 2018, Westminster Magistrates Court judge Emma Arbuthnot had found that Indian authorities had demonstrated they had a prima facie case of fraud against Mallya which could be prosecuted in India, and sent his file to the UK Home Secretary.
With the rejection of this appeal by the high court in London, the ball is now in Home Secretary Priti Patel’s court, which is not good news for Mallya. On 4 February 2019, the then UK Home Secretary Sajid Javid had approved his extradition to India, and as Mallya’s appeal against Javid’s decision was also rejected last year by the high court, Patel’s approval is likely a formality at this point.
So does that mean we can expect Mallya to be extradited soon? Or does he have any final cards left to play to stop or delay his extradition?
The Only Option Left: Appeal to UK Supreme Court
The only legal recourse left to Mallya is to appeal to the UK Supreme Court, which he can do within 14 days of the high court’s judgment, according to the UK’s official guide on the extradition process. Mallya has indicated already that he will pursue this option.
However, the UK Supreme Court is far more restrictive than India’s in terms of which cases it decides to hear. For Mallya to be granted leave to appeal, the high court needs to certify that his case involves “a point of law of general public importance.”
The Supreme Court will therefore need to be satisfied that Mallya’s appeal isn’t about whether the magistrate’s court and the high court got the facts of the case wrong, but that they got the law on the case wrong, including the legal standards used for making their decision.
Mallya’s case does involve an issue of law, ie, what is the legal standard that has to be met to establish whether or not there is a prima facie case against him. The CBI and ED have alleged that Mallya was involved in a conspiracy to defraud IDBI in relation to a loan given by the bank to Kingfisher Airlines back in 2009, and had also alleged money laundering in relation to this fraud.
Judge Arbuthnot had found that there was such a prima facie case, but in his appeal to the high court, Mallya had contested the standard used by her to determine this, arguing that this required a high level of proof, and that she had to exclude the possibility that he was innocent. The high court rejected this argument and found that Judge Arbuthnot had got the standard right.
The same argument on law could be raised by Mallya in the UK Supreme Court as well, though it remains to be seen if the apex court will agree to hear it, as the high court found Mallya’s arguments clear misstatements of the law, and that there were previous judgments of the UK courts that made it clear their arguments were wrong.
Will Mallya be Extradited Within 28 Days?
At this point, it is difficult to see that Mallya could be extradited within just 28 days, especially given the coronavirus crisis.
As mentioned earlier, Mallya has 14 days, ie, till 4 May, to file his appeal in the UK Supreme Court. Even if the court decides not to hear his appeal, their decision may not come immediately. If they do decide to hear his appeal, it could be several months before the appeal is decided.
It is unlikely that the appeal, if heard, will go in Mallya’s favour, but whenever the Supreme Court’s final decision comes in, the matter goes back to the UK Home Secretary.
Mallya will then need to be extradited within 28 days of the UK Home Secretary’s order – which is expected to be a formality.
While Patel is expected to sign off on Mallya’s extradition without much delay, the UK Home Secretary has the discretion to defer the extradition, which can be done for years at a stretch – Dawood aide Tiger Hanif’s legal options were exhausted in 2013, but he has still not been extradited from the UK to India.
All things considered, unless the UK Supreme Court decides to hear Mallya’s appeal, we can expect his extradition within a few months, even though not 28 days.
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