Mallya arrested: Here's why his return to India is certain, even if delayed

The Scotland Yard on Tuesday arrested Vijay Mallya, charged with over Rs 9,000-cr loan default

Industrialist Vijay Mallya's return to India could be delayed, given that UK Prime Minister called for early elections on 8 June, but a reprive for him is unlikely from the UK government. In the first of a series of legal steps, the Metropolitan Police in London arrested the former liquor baron at 9.30 am local time on Tuesday.

In February, India's Ministry of External Affairs had made an extradition request, as received from the Central Bureau of Investigation, to the UK High Commission in New Delhi. Mallya is likely to be produced in court today and will get a chance to present his case.

The State Bank of India, the leader of the consortium of 17 banks that lent money to the now defunt Kingfisher Airlines, had moved Debt Recovery Tribunal in Bengaluru against Mallya, the chairman of Kingfisher Airlines, in its bid to recover dues amounting to over Rs 9,000 crore from him. Rather than paying, Mallya had sought refuge in England, a country with which India has a bilateral extradition treaty, signed in 1993.

While several British citizens have been extradited from India, no Indian citizen has so far been sent back from the UK. Among those against whom criminal cases are pending in India are musician Nadeem, charged with involvement in a conspiracy to murder TIPS Music CEO Gulshan Kumar; and industrialist Lalit Modi. However, the last Briton to be returned to his country to serve a murder sentence was Maninderpal Singh, who was convicted of raping and murdering a British, Hannah Foster, and later fleeing to India.

Mallya is allowed to appeal first to the High Court and then to the Supreme Court against his extradition.

According to the UK extradition process, after a person has been arrested, he is brought before the court and the judge sets a date for the extradition hearing. The extradition hearing must satisfy the judge that the conduct of the individual amounts to an extradition offence. This must then be sent to the Secretary of State for a decision.

The judge's order to send the case to the Secretary of State can be appealed in the High Court, but within 14 days. From the High Court, it can be sent to the Supreme Court, also within 14 days. But once the matter reaches the Secretary of State and the extradition is ordered, the individual has only four weeks to explain to the Secretary of State why he should not be extradited.

Extradition can be reviewed by the Secretary of State in these specific circumstances:
 

* The person could face death penalty (unless the Secretary of State gets adequate written assurance that the death penalty will not be imposed or, if imposed, will not be carried out)

* There are no speciality arrangements with the requesting country — ‘speciality’ requires that the person must be dealt with in the requesting state only for the offences for which they have been extradited (except in certain limited circumstances)

* The person has already been extradited to the UK from a third state or transferred from the International Criminal Court and consent for onward extradition is required from that third state or that Court (unless the Secretary of State has received consent)

None of these apply to Mallya.

The Secretary of State has to make a decision within two months of the day the case is sent. Unless there is an appeal, an individual must be extradited within 28 days of the Secretary of State’s order.

Given that an election will be on during the most crucial period in Mallya's extradition hearings, it is possible that his return is delayed. But it is unlikely that the UK government will turn down the extradition if the Indian government's case succeeds.If Mallya had been the citizen of a European country, the new British Prime Minister (who will be in place by the time the magistrate hears the case) might have leveraged his extradition as a way to show the British muscle against Europe, considering the political background of Brexit and the general elections.

But this consideration does not apply to India and given that the case for Mallya's extradition rests on defalcation of public money, it is unlikely that the new incumbent of 10, Downing Street, will see the case differently from Theresa May's government, especially  in Mallya's case. Here, the issue is not one of immigration but unpaid debts of money borrowed from public sector banks.

Mallya's arrest and subsequent extradition is a key feature for the Narendra Modi-led government to politically justify the 8 November demonetisation move, which was billed as a drive against corruption and black money. Modi had warned from several fora that money salted away abroad illegally would be brought back to India and salutary punishment awarded to culprits. Later, Finance Minister Arun Jaitley, in an interaction with investment bankers in London, had also warned that those who had not paid taxes or other dues -- whether individuals or companies -- should not expect leniency from the Indian system.