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Bringing Vijay Mallya Back To India To Face Trial Is Going To Be Tough

31/05/2017 2:11 PM IST | Updated 31/05/2017 2:11 PM IST
Luke MacGregor / Reuters

Vijay Mallya is, in his own right, a unique Indian business personality. He has led a more balanced life than many Indian businessmen who are only dedicated to amassing wealth. He believes in the principle of 'work hard and play hard'. I have known Mallya for many years and I also know that he is a great devotee of the Balaji Temple in Tirupati. In many ways, the Mallya projected to the international world a more acceptable picture of the Indian business elite.

Mallya's downfall was caused by the fact that he came into the Indian public eye and was seen to be enjoying a wealthy lifestyle whilst thousands of Kingfisher Airlines employees remained unpaid.

Mallya always wanted to be different from the rest and a good example of this was Kingfisher Airlines which provided value for money in novel ways. This, however, does not excuse his default in repaying his loans and running away from India to avoid legal action from his creditors. In reality, Mallya's downfall was caused by the fact that he came into the Indian public eye and was seen to be enjoying a wealthy lifestyle whilst thousands of Kingfisher Airlines employees remained unpaid. Now, he is facing extradition proceedings before the English courts.

Vijay Mallya was branded a wilful defaulter back in September 2014 because of the ₹9,000 crore that he owes a consortium of 17 Indian banks. He was, at that stage, a defaulter of commercial loans given by the banks, which would not have been a criminal act. However, his subsequent escape out of India to London in March 2016 to evade prosecution at home and the Indian Supreme Court holding him in contempt of court now makes him an alleged criminal for whom India is seeking extradition.

The Indian government's case for his extradition has been strengthened by the Indian Supreme Court finding Mallya to be in contempt of court. This is because contempt of court is a serious crime which is also recognised under English law. However, Mallya could argue that he could not appear before the Indian Supreme Court because he was unable to travel to India as his Indian passport had been cancelled and he was left with no travel documents to enter India.

If an English Court comes to the conclusion that because there has been a trial by media in India, there is a real possibility that the court will deny Mallya's extradition on the grounds that he will not get a fair trial.

Extradition from England has never been an easy task. The English Court will only permit extradition if there has been a serious crime committed by the accused in the country requesting extradition and the act by the accused is considered a serious crime under English law. A further criteria for extradition is that the accused if extradited would get a fair trial in his home country. A fair trial is a very wide concept and if an English Court comes to the conclusion that because there has been a trial by media in India, there is a real possibility that the court will deny Mallya's extradition on the grounds that he will not get a fair trial. This would be the case even if the Indian government's legal team is able to satisfy the English Court that Mallya was guilty of a serious crime in India, a crime which is also recognised in England.

In the extradition proceedings initiated by India, both parties can appeal to the UK Supreme Court. The court in the UK will have to be satisfied that Mallya will get a fair trial in India. His lawyers will argue he is being politically hounded and is a victim of a media trial. They might point out that other Indian businessmen owe much more money to Indian banks, but their client has been singled out. The sensational reports in the Indian media could be presented as evidence of a media trail Mallya has had to endure and could work in his favour.

Mallya has the final option of approaching the European Court of Human Rights, at least until the UK completes its exit from the European Union.

India will face serious problems in countering these claims as there is no dearth of lurid media coverage of Mallya. Even if India were to succeed at this stage, Mallya has the final option of approaching the European Court of Human Rights, at least until the UK completes its exit from the European Union. Several cases for extradition have been refused on the ground that it would deny the person the right to family life as per Article 8 of the European Convention of Human Rights. It is going to be a complicated affair as Mallya can argue that he may not receive a fair trial in Indian courts because the legal system here is very susceptible to influence and corruption.

The Indian government might continue to use diplomatic channels to build a solid casework proving that Mallya will receive a fair trial in India. However, the Indian government must bear in mind that no amount of diplomatic pressure will have any effect on British judges. A worldwide freeze order on Mallya's assets could be a more effective option than his extradition. It already might be too late for this though as Mallya is reported to have transferred to his three children, nearly USD 40 million of the USD 70 million severance package he received from British firm Diageo.

The most unlikely of scenarios would be for Mallya to land in India voluntarily, not unlike Samirbhai Vinubhai Patel, who was brought back from the UK in October 2016 to stand trial for his alleged role in the 2002 Gujarat pogrom. Highly unlikely in the case of Vijay Mallya, but definitely within the realm of possibility.

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