Mallya arrested briefly in UK: History against India in extradition cases

Flamboyant businessman Vijay Mallya, pursued by Indian authorities over unpaid loans tied to his defunct Kingfisher Airlines, was arrested in London briefly on Tuesday and appeared in court for an extradition hearing.

A source close to Mallya said he attended a police station voluntarily and the arrest was a technical procedure. Mallya, 61, was arrested on behalf of the Indian authorities over accusations of fraud and appeared in Westminster Magistrates' Court, British police said.

Mallya, in a message on Twitter, called the news of his arrest "usual Indian media hype" as television channels said he was granted bail at the hearing.

India had asked Britain to extradite Mallya to face trial after the liquor and aviation tycoon fled there last March after banks sued to recover about $1.4 billion that Indian authorities say Kingfisher owes.

India, Britain and their extradition history

India and Britain have a mixed record on extradition, say legal experts. Some cases have collapsed when evidence fell short of the standard of "dual criminality", or actions that amount to a crime in both countries.

Extradition cases have not gone in India's favour mainly due to Britain's strong human rights laws. According to a DailyMail report, for extradition, the UK has placed India in category 2 countries, for which the process is arduous and long.  In category 1 are the US and European countries, which get preference. If the UK extradites Mallya, it will also have to move on other pending requests from India.

"The court usually focuses on whether there is sufficient evidence of criminality to extradite someone," said Andrew Smith, a partner at London law firm Corker Binning.

"India needs to show a prima facie evidential case against this man."

The last time any Indian was extradited to India by virtue of an order by a British court and against his will was Manu Narang in 1977. He stole two pillars from a temple in India. This was, in fact, before the Extradition Treaty between India and the United Kingdom came into being in 1993. 

Mallya is not the first
Mallya is not the first high-profile Indian based in the United Kingdom wanted in India. Previous individuals sought include Lalit Modi, Ravi Sankaran (the Indian Navy war room leak case), Nadeem Saifi (the Gulshan Kumar murder case) and Tiger Hanif (Gujarat blasts).

What about Samirbhai Vinubhai Patel?

It took Britain 23 years to extradite someone wanted in India when it had extradited a Gujarat riots accused, Samirbhai Vinubhai Patel, on October 18, 2016 to face trial in India after a Red Corner Notice was issued against him. He is currently in a jail in the Anand district of Gujarat. Patel is facing trial in connection with post-Godhra riots in India in 2002. He is charged with the offence under Section 302 of the IPC, along with 43 other accused. The offences include being member of an unlawful assembly; rioting and murder. 

According to a Hindustan Times report, "Patel's extradition did not exactly reflect a fresh approach in London, though the Narendra Modi government has exerted in official talks on the issue. Unlike other individuals wanted by India, Patel, 40, did not oppose his extradition, but “consented” to it, thus cutting short the long process. Mallya is unlikely to “consent” to extradition, and is expected to fight it legally in British courts, which could take months, if not years. "

Jaitley personally takes up Mallya's case in February

Finance Minister Arun Jaitley personally took up the matter with his counterpart Philip Hammond, Chancellor of the Exchequer, when they met in London in February. The British Prime Minister, Theresa May, also joined in the discussions.

Following that exchange, sources close to Jaitley said the difference between previous cases and this one was “there is a political will” on the part of the British government to meet India’s expectations. This was interpreted as May herself — anxious to woo India in an uncertain climate for Britain after Brexit — indicating a resolve to do so. 

May as Home Secretary prior to becoming Prime Minister had shown an equal inclination to extradite Indian absconders, such as Iqbal Mirchi – an underworld don wanted for terrorism – and Ravi Shankaran – who was accused of stealing sensitive documents from the Indian Naval War Room. But she was thwarted by the courts in both instances. Mirchi thereafter passed away in 2013.

Mallya, who enjoys a right of residence in Britain, left India over 13 months ago. He has been living in the United Kingdom since, notwithstanding his passport being confiscated a year ago.

As a result of his company’s debt, he was designated a proclaimed offender. He is wanted in India for defaulting on loans. Despite several summons to appear before the Enforcement Department of the Union Finance Minister, he refused to present himself before it. 

In January, an Indian court permitted his lenders to pursue diluting the exposure. A Central Bureau of Investigation (CBI) court also issued a non-bailable warrant against him. Following this, the Indian High Commission in London handed over an extradition request to the British Foreign Office, saying India had a “legitimate” case and sending Mallya back would demonstrate British “sensitivity towards our concerns”.

Extradition has been sought on account of defaulting on IDBI Bank loan worth Rs 950 crore. IDBI Bank had sanctioned three loans of Rs 150 core, Rs 200 crore and Rs 750 crore between 2009 and 2010 to KFA.

In extradition cases, UK follows the dual criminality procedure, where an action is an offence in both countries. “The level of proof required in the case is very high,” said a government official. Since it is a judicial case, Mallya will have the option of appeal at various levels of judiciary.

“It is a good precedent. We want to shatter this myth that by crossing boundaries you are out of bounds. Mallya extradition will act as an important test case,” the official added.

The UK government refers the extradition request to the court after examining the worthiness of the case. In the Mallya case, the matter has been referred to the court, where Indian authorities will have to present the case for extradition of the liquor baron.

Extradition is resisted by offenders on grounds including biased judicial system, not getting a fair trial in India, politically motivated case, among others. Even if Mallya loses the case at the magistrate’s level, he will have two or three higher levels of the judiciary to appeal to. If he fails to win even at the Supreme Court, then the final determination will be a political one, made by the British Home Secretary, Amber Rudd.

Mallya, who lost his core liquor business, owns a Formula One motor racing team called Force India. He is also associated with the Royal Challengers Bangalore franchise in the Twenty20 Indian Premier League.