Fugitive businessman Vijay Mallya has been in the United Kingdom since 2016. He has absconded from India and is wanted over alleged charges of Money Laundering and fraud. Indian banks allege him to have defrauded them of ₹9,000 crores. He was once dubbed “The King of Good Times” as he owned India’s biggest liquor company, Kingfisher. However, he is now a Fugitive Economic Offender (FEO).
He suffered a major setback when he launched his new venture Kingfisher Airlines in 2005. In eight years of its operation, Kingfisher Airlines never once registered profit. Moreover, banks have labelled him as a “Wilful Defaulter”. This is because he hasn’t been repaying the money but has luxuriated himself in a lavish lifestyle. Since 2017, he remains on bail on an extradition warrant executed by Scotland Yard.
What are Vijay Mallya’s Alternatives?
In May 2020, Vijay Mallya hit a significant roadblock to avoid his Extradition. The High Court rejected his application seeking leave to appeal in UK Supreme Court. TheUK Extradition Act 2003 lays down the procedures post dismissal of the application. Section 118(2)(a) of the said Act provides that the person must be extradited to the Category 2 territory before the end of the required period. This period is 28 days starting from the day on which the decision of the Court on the appeal becomes final. Thus, it sets the 28-days required period within which they must extradite the accused.
Furthermore, Section 118(7) requires compliance with the procedure laid down. If the concerned nation does not extradite the fugitive within 28 days, the person can apply to the appropriate judge for discharge. If the judge is satisfied, he can order his discharge. But, the right available to the person is not absolute. As per the said provision, the judge may reject his application if there is a “reasonable cause” for the delay. The turmoil caused due to the pandemic can be a reasonable cause under the said provision.
This decision might have come as a relief to the Indian Government. They have been consistent in their efforts to extradite Vijay Mallya. However, Mallya still many options left at his disposal to delay the Extradition.
What are the Further Alternatives Available to Him?
First, is an appeal to the Home Secretary. This is by making representations based on fresh evidence or any interceding event. The Home Secretary may consider the issues if it applies to various human rights. One instance of the same can be whether the requesting State would give the person a Death Penalty (Section 94, UK Extradition Act, 2003). Another could be the facilities at the prison where he would be after extradition. Another question that arises is whether the requesting State can keep the person safe during COVID-19.
Second, he can give an application to seek political asylum in the UK. Immigration law provides for political asylum. It can apply if he fears persecution in the requesting State. This is entirely a different avenue. Here the person must establish that he would be persecuted if he returns to the requesting State.
At last, he can apply under Rule 39 of the European Court of Human Rights. Under Rule 39, the European Court of Human Rights may give interim measures to any State party. Mostly, the applicant resorts to Rule 39 for the suspension of extradition. The Court grants such request only if it is satisfied that the applicant would otherwise face an imminent risk and irreversible harm. Moreover, Vijay Mallya could contend that he would have to face inhumane conditions. This would be a direct violation of Article 3 of the European Convention of Human Rights. The UK is a signatory to this. Article 3 states that “No one must be subjected to torture or inhuman or degrading treatment or punishment.”
Extradition Halted Due to Confidential Legal Issue
In the first week of June 2020, Media speculated that Vijay Mallya might soon be extradited to India. He would land in Mumbai since this is the jurisdiction where they registered the case against him. This is owing to the rejection of his application by the UK Courts against his Extradition order.
But, India’s efforts to bring back the liquor baron seem to have hit a roadblock again. On 4th June 2020, UK High Commission informed that there is still a Confidential Legal issue. Unless the said legal issue is resolved, there would be a halt in the process. Another aspect is that if Mallya is not extradited within 28 days, he can apply to the Court for discharge. But as mentioned above, the Indian Government can seek an extension. They would have to establish “reasonable cause” for the delay.
What does “Confidential Legal Issue” Mean Here?
The major speculation on the “Confidential Legal Issue” is that of the application for political asylum. The extradition cannot happen until the issues of political asylum are determined. Also, the Indian Government might not be aware of the same. This is because it is an ex-parte proceeding; i.e., it does not involve the Indian Government as a party. It only involves the Home Secretary and the Asylum Seeker.
Also, one issue that he could highlight in his appeal to the Home Secretary is his safety in Mumbai’s Arthur Road Jail. COVID-19 has infected over 170 people within the Jail. This includes 150+ inmates and 20+ police officials. His contention would be the inability of the Jail Authorities to keep him safe from Covid-19. He would also highlight the lack of proper facilities in the jail. Another reason for the delay could be the civil cases concerning Indian Banks and his battle with Diageo. Those are yet pending in the UK courts.
Vijay Mallya has not yet applied to the European Court of Human Rights under Rule 39. However, if he does and is successful, this would forbid his extradition. The Government cannot extradite him till the determination of the complaint. It is interesting to note that out of 82, none of the requests was granted in 2019.
Conclusion
It’s been four years since the owner of the now-defunct Kingfisher Airlines absconded. The Indian Government’s effort to bring him back always seems to have hit a hurdle. It has been 28 years since India and the United Kingdom signed the Extradition Treaty in 1992. In 28 years of the Treaty being in operation, there have been only two extraditions from the UK. This involves that of Samirbhai Vinubhai Patel in 2016 and Sanjeev Chawla in 2020. Fortunately, recently in February 2020, India had its first successful Extradition from the United Kingdom, when bookie Sanjeev Chawla was handed over to the Delhi Police by the Scotland Yard officers. This is because the Extradition of Samirbhai Patel in 2016 was voluntary and on his own accord.
The extradition of Sanjeev Chawla might be a sign of changing attitude of the UK towards the offenders from India harbouring in the UK. The extradition of business tycoon Vijay Mallya would be a triumph for India. There are various other high-profile offenders from India seeking refuge there. India has sought to extradite Lalit Modi (for alleged financial offences), Tiger Haniff (Gujarat Blast case), Ravi Sankaran (Navy War room leak case) and Nirav Modi (for Money Laundering and Fraud).
The successful Extradition of liquor baron Vijay Mallya would be a significant accomplishment.
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