Vijay Mallya Extradition Verdict: What Can We Expect on 10 Dec?

Video Editor: Mohd Ibrahim

To extradite or not to extradite?

That is the question the Westminster magistrate’s court in the UK will answer on 10 December, in the long-running Vijay Mallya extradition case.

India made a formal extradition request in February 2017, and, following the regular process, a case has been going on in the UK court for over a year now.

For the judge to order Mallya’s extradition, the judge must be satisfied that:

1. What Mallya is accused of amounts to an extradition offence, that is, it’s a crime in India and the UK,
2. None of the bars to extradition apply,
3. There is prima facie evidence of guilt,
4. The extradition would not breach Mallya’s human rights.

So What Can We Expect?

THE CASE AGAINST MALLYA

The CBI presented evidence to the UK government that Mallya and other Kingfisher employees conspired with IDBI to get loans for Kingfisher airlines by fraudulent means.

This isn’t just about not paying back the loans – that would not attract criminal liability for Mallya since the loans were in the company’s name – which would not have given grounds for extradition. But fraud would very much be an extraditable offence.

On the basis of the CBI’s evidence, the UK’s Crown Prosecution Service has informed the court that the CBI has provided enough evidence to make them believe the case is serious and that Mallya should stand trial.

MALLYA’S DEFENCE

Mallya has argued that the effort to extradite him and the cases against him are motivated, a witch-hunt.

He has contested the CBI chargesheet, and raised doubts over the credibility of the CBI by referring to the 2G and the Aarushi cases. These recent controversial cases have also been used to demonstrate that he won’t get a fair trial in India, as was an allegation that the investigating officer in Mallya’s case, Rakesh Asthana, had been threatening banks to make statements against Mallya.

Mallya has also argued that he shouldn’t be extradited because of the poor condition of jails in India, and the risk of torture for him in jail.

Till recently, this had been grounds for the UK courts refusing extradition to Indians. Bookie Sanjeev Chawla used the same expert as Mallya to argue that he would be treated badly in jail, and the Magistrate’s court refused to extradite him in October 2017.

Will this jail argument work?

However, in November 2018, the UK High Court rejected this reasoning and sent the case back to the lower court for reconsideration.

Indian authorities have submitted evidence from Arthur Road jail in Mumbai where Mallya would be kept in custody if extradited, and have tried to show that the facilities are adequate.

Mallya’s lawyer Clare Montgomery tried to rubbish these claims at the last hearing, saying that this was just for show to make the UK courts think conditions are ok, but after the High Court decision in Chawla’s case, Mallya may not be able to rely on this limb of argument anymore.

So Will Mallya be Coming Back to India in Handcuffs?

At the end of the day, India’s extradition record is not particularly great, especially when it comes to the UK. Only one person has ever been extradited from there, an accused in the 2002 Gujarat riots, and he didn’t oppose his own extradition.

With the other factors thrown in, including Rakesh Asthana’s role in the CBI vs CBI fiasco, it is quite possible that the court refuses to allow Mallya’s extradition. If this were to happen, India could still appeal the issue all the way up to the UK Supreme Court, though this would mean a long-drawn out process that could take years.

What if the court recommends his extradition?

Even if the Magistrate’s court were to recommend Mallya’s extradition, it isn’t game over for the dethroned King of Good Times. He can immediately file an appeal, which will be taken up in the event the Secretary of State decides to extradite him.

The court’s recommendation goes to the Secretary of State, who then has to consider if there are any legal bars to extradition, including risk of the death penalty, or that the person could be tried for other crimes rather than the extradition offence, or that this is a matter of politics.

Mallya can send his own arguments against extradition to the Secretary of State, who has to make a decision within 2 months, though this can be extended as many times as the Secretary wants.

If the Secretary of State decides to extradite him, he can appeal not just the Secretary’s decision, but also the decision of the Magistrate’s court, to the High Court, which can overturn everything and send it back to the lower court.

If the High Court also upholds his extradition, then he can appeal to the Supreme Court if a substantial question of law is involved.

This means that there are still many months, if not years, to go before a decision to extradite Mallya becomes final. Even once all avenues in the courts are exhausted, this doesn’t mean the Secretary of State will immediately order extradition, they still have discretion. Look at Tiger Hanif – his legal appeals were all rejected by 2013, but he still hasn’t been extradited.

The main takeaway, therefore, is that the decision on 10 December will not be the end of the story.

Nevertheless, a win for India would be encouraging, showing we may actually be able to win these cases and ensure justice - and would mean good PR for the government.

A win for Mallya, however, means yet another failure by the India to bring absconding prisoners to book, and will encourage the Nirav Modis and Mehul Choksis and Lalit Modis to keep committing crimes, knowing they will not face the consequences.