The law enforcement agencies in India breathed a huge sigh of relief on Monday as the London Westminster Magistrates Court ordered for the extradition of the fugitive liquor baron Vijay Mallya to India. Chief Magistrate Judge Emma Arbuthnot found a prima facie case against Vijay Mallya for fraud, conspiracy and money laundering.
However, Mallya still has 14 days to appeal against the decision which itself is only recommendatory and has to be then implemented by the Home Secretary who has the final authority on the issue. Further, Mallya can even appeal to the if the decision of the initial appeal comes against him.
So, why is it that an absconder was able to freely live in a country while having broken the law of some other country? The simple answer is, Vijay Mallya had to be proven guilty in the courts of law of the UK for the process of extradition to be initiated between India and UK. The due process of law required Mallya to be given a fair hearing to put forward his case in front of the Magistrates Court. Only after being found guilty there could the extradition process be initiated.
Another question that begs an answer is, why was Mallya even allowed to stay in the UK despite India cancelling his passport in April 2016? The answer to this again lies in the laws of the UK.
Under the Immigration Act, 1971, a person can continue to remain in the country even if their passport is revoked as long as their passport was valid when they were granted an entry to the country. In such circumstances, the visa expiry is taken into consideration but as Mallya had a UK residency permit since 1992, he could have remained there for an indefinite period.
Therefore, the law there needs a revision wherein a clear and not ambiguous provision can be added stating that a non-resident would not be given residency permit if he is an economic offender or a fraudster in some other country. This will help resolve the abuse of the process of law in the UK because of which there is an indefinite delay in the enforcement of sentences passed in a foreign country.
In the Westminster Magistrate's Court, the lawyers arguing for the Government of India successfully passed the tough road of the Extradition Treaty, 1993 signed between the UK and India wherein under Article 9 several grounds are listed as a defence against extradition.
Punishment on account of race, religion, nationality or political opinion in the home country together with the accusations not being made in good faith in the interests of justice could stand as a ground for the refusal of extradition.
Here, what is interesting to note is the vagueness in the language. The terms ‘political’, ‘good faith’, ‘interests of justice’ can be swayed either way to justify the actions of any person. This was what was exploited by the lawyers of Vijay Mallya as they argued that Mallya is sought for political considerations in India. The argument so raised, ironically, is directly against the discourse which is perpetuated in India that the dispensation is protecting him and in fact aided his escape from India.
Moreover, they even stated that Mallya was subjected to ‘media trials’, that his inability was due to a “genuine business failure” and that there was a risk of infringement of his human rights in Indian prisons due to their dilapidated state. Therefore, they argued that there would be an ‘abuse of process’ which fairly falls within the ‘interest of justice’ exception. This is only a legal cacophony to argue a case of wilful default as a genuine case of business insolvency.
India needs to be wary of the grounds that are raised against it in such trials. The case of Sanjeev Kumar Chawla where the lack of proper infrastructure of jails was cited as the reason for non-extradition, despite the Court holding him guilty; and Jatinder Angural -- wherein extradition was denied as there was an inordinate delay of almost 25 years in making a request, stand as testimonials to this fact.
While India managed to rebut the claims of lack of infrastructure in the Mallya case, in the long run, the country needs to invest in the development of the criminal justice system and infrastructure so that such claims can hardly be raised in good faith.
Despite these shortcomings, India has caught some ground with the enactment of the Fugitive Economic Offenders Act, 2018 through which all the assets of an absconder like Mallya, which have or not been attached by the Enforcement Directorate under the Prevention of Money Laundering Act (PMLA), can be immediately confiscated. The drafting of the law suggests that it has been enacted for big fish like Mallya so that history doesn’t repeat itself.
It is only through a change in policies and laws like these can it be ensured that businessmen don’t take the country for a ride. A stricter regime of law as well as working on our inefficiencies can change the dynamics of the economic frauds committed in broad daylight in the country.
(The writer is an assistant professor of law at Maharashtra National Law University, Mumbai and Bist is a fourth-year student of law at Maharashtra National Law University, Mumbai)
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Updated Date: Dec 11, 2018 15:31:55 IST