Businessman Vijay MALLya’s short-lived arrest—he managed to secure bail within hours—in London on Tuesday sparked hopes of his extradition here in India. Mallya, apart from ten others, is named as an accused in a CBI charge-sheet filed in January, for defrauding IDBI Bank of Rs 950 crore and criminal conspiracy. The former liquor baron, whose companies owe Rs 9,000 crore to Indian banks, had fled to the UK last March. In February this year, India raised an extradition request under its treaty with the UK. The arrest is seen as the start of the extradition process. But, with success of extradition requests dependent on relations between the governments of two nations, diplomatic and back-channel efforts as much as on the procedural requirements, there are too many factors involved to expect Mallya to be brought to Indian shores soon.
With Vijay Mallya’s arrest, is India closer to getting him extradited from the UK?
Extradition in both jurisdictions is a complex process, under the purview of the Extradition Act, 1962, in India and the Extradition Act, 2003, in the UK. India and UK are signatories to an extradition treaty, which lays down the ground for extradition offences and procedure. The 1992 treaty says such offences are ones that carry a punishment of at least one year’s imprisonment in each of the Contracting States, even those related to taxation, revenue or of a fiscal nature. Mallya and eight others have been chargeheeted by the CBI under Sections 120(B) and 420 of the Indian Penal Code which carries a maximum penalty of seven years’ imprisonment and under Section 13(1)(d) and Section 13(2) of the Prevention of Corruption Act—the latter carries a minimum punishment of one year. The UK fraud and embezzlement laws that broadly cover similar offences provide for a maximum punishment of 10 years’ imprisonment.
On the face of it, India’s extradition request for Mallya is on solid ground. But the UK extradition law classifies India as a Type B (of category II) country, which means the extradition has to be cleared by UK courts and its secretary of state. While Mallya’s arrest, as per the UK’s extradition law, means the first two levels of the process, certification by the UK Secretary of State and issue of warrant—which is done after a thorough examination of documents supporting the request at the magistrate’s level—have been cleared, the magistrate has granted him bail at the preliminary hearing. Next follows the extradition hearing, for which the magistrate sets the date; the extradition hearing at the primary court may itself take any length of time. A crucial part of the extradition hearing is that the judge hearing the case must decide on whether the principle of dual criminality—whether what the fugitive has been charged with also constitutes a crime in the UK—and any of the bars to extradition apply.
So, is the extradition hearing the final say in the matter?
Even if the primary court (district) judge orders extradition, the UK law provides for a phased appeal at the HC level. If, say, the extradition hearing at the magistrate’s level ends in an order for Mallya to be extradited, he would have 14 days to make an appeal to the HC that the case be sent to the Secretary of State. Upon such permission being granted, the Secretary of State must uphold the extradition order, unless Mallya is able to prove within four weeks that his extradition is barred because of any or a combination of the three reasons spelled out by the law—in this case, however, none of the reasons (facing capital punishment in requesting country, no treaty/arrangement, or having been previously extradited to the UK) apply.
This will mean Mallya may appeal to the HC within 14 days of the Secretary of State’s decision, and the HC, after admitting the appeal, may either order discharge or uphold the extradition. If it does uphold the extradition, he can approach the SC within 14 days of the order. The SC’s shall be the last word. Alternatively, if the district court orders discharge, a similar appeals process follows, only with the Indian state represented as the appellant. At any stage, if India’s appeal is allowed the case returns to the district court.
How many are extradition requests from India pending with other jurisdictions?
As per the reply of the minister of state for home, Santosh Kumar Gangwar, in Lok Sabha, as of December 6, 2016, 110 extradition requests had been made to various countries. As per the reply of minister of state for external affairs, VK Singh, 16 extradition requests were pending with the UK alone in August last year (the request for Mallya’s extradition was made this year in February).
How many countries does India have extradition treaties and arrangements with?
At present, there are treaties with 37 nations. Some date as far back as 1958 (Belgium) and 1963 (Nepal). Some are fairly new—Vietnam and Bangladesh (2013) and Egypt and Saudi Arabia (2012). There are extradition arrangements (separate from treaties) with nine countries, with arrangements with Italy and Croatia, limited only to crimes related to illicit traffic in narcotics drugs and psychotropic substances.
How have different countries responded to India’s extradition requests and how has India responded to such requests?
Apart from fulfilment of procedural necessities, extradition invariably always follows the principle of reciprocity, treaties and arrangements notwithstanding. This means India would be more amenable to honouring a request of a country if the latter has honoured its request in the past. But political considerations and bilateral ties, too, play no small role. So, while the UAE, with whom India has a treaty since 1999, has honoured 18 extradition requests by the latter between 2002 and May 2016, the UK has only extradited just one person wanted by India and has managed to get only three extradited. The US has extradited nine persons to India while India has extradited 25 people to America between 2002 and 2016. In that period, India extradited 45 people wanted for various crimes—21 of them Indian nationals—to nine nations, including Canada (6), Australia (4) and Germany (2). It has managed to get extradited 65 individuals from 22 nation that include Nigeria, Bangladesh, Mauritius and Portugal.
Why does India have a sorry record with the UK?
There is no clear answer to this. But, the UK has a rather strong human rights protection regime and extradition can be refused if the courts feel that the request is politically motivated or the human rights of the requested person are likely to be violated. The Business Standard reports part of the reason why the record is so poor is that British courts have found Indian submissions of necessary paperwork and evidence far from satisfactory. These are pains that India has been trying to ease through dialogue. After the visit of the British PM, Theresa May, last November, the two countries agreed to expedite extraditions at a meeting of mandarins of the line departments of the two countries.
What are some of India’s high-profile requests and extraditions that it managed to get?
Former IPL chief Lalit Modi (wanted for corruption, fraud and financial irregularities), Dawood Ibrahim-aide Tiger Hanif (wanted for his role in 1993 blasts in Gujarat), and Ravi Shanakaran (wanted for espionage) are few of the notorious fugitives living in the UK, while India long back had requested their extradition. The extraditions that generated considerable media buzz are the 2005 ones of gangster Abu Salem and his rumoured partner, Monica Bedi (both by Portugal), and the 2015 one of Chotta Rajan, another gang -lord (by Indonesia).