The third day of the defence arguments in India’s efforts to extradite Vijay Mallya from the UK commenced, as an Indian legal sector expert took to the stand to raise questions about the use of witness statements included in the government’s case and question the impartiality of India’s Supreme Court. He was also critical of the role that the media played in high profile cases. Another witness, from Force India, questioned government arguments that certain payments made to the racing team were excessive and secretive.
Dr. Martin Lau, an expert on South Asian law, referred to a research report published by three academics that he said raised questions about “particular patterns or actions” in the verdicts of the Supreme Court. “I hold the Supreme Court of India in the highest respect…it does not mean the Supreme Court is a corrupt institution,” he said, pointing to the report that suggested a certain “patterns of decision making” that supported the “contention” that judges close to retirement were “angling for government posts” and made their decision in favour of the government.
“Pandering” in the form of actively ruling in favour of the government, was “positively associated” with the likelihood of judges being appointed to “prestigious” and “lucrative” jobs subsequently, lead defence barrister Clare Montgomery told the court, reading from the detailed study, cited by Mr. Lau in his evidence. Concurring, Mr. Lau noted that the study had not found any evidence that the seeking of government favour would result in a case being expedited – something that he pointed to in his evidence, when it came to the treatment of the banks’ case against Mr. Mallya. He contrasted the speed with which the proceedings against Mr. Mallya were moved to and through the “heavily burdened” Supreme Court, versus Mr. Mallya’s own review petition on the case.
When challenged by prosecution barrister Mark Summers that a whole host of factors influenced the decision making by Supreme Court judges globally, and that often it was the case they ruled in favour of the government he challenged this pointing to Pakistan, where the Supreme Court had dismissed the Prime Minister.
“There is increasing concern in India about media trials,” Mr. Lau told the court, pointing to the impact that private TV channels, the use of panel discussion and powerful TV commentators had, on everything from the way the police conducted their investigation to witnesses, and the passage of the trial. While some action had been taken to tackle the issue, progress so far had been “insufficiently robust,” he told the court.
‘Limited evidential value’
The picture of the decision making of the Supreme Court formed part of a wider body of testimony presented by Dr. Lau to the court, including on the use of Section 161 witness statement of the Indian criminal procedure code (in which a police officer summarises evidence heard) which, he said, had “limited evidential value.” He also noted the use of ‘exactly the same language’ in a number of statements. “Either we have the possibility they have both provided identical language or there is something else going on,” said Ms. Montgomery, after Mr. Lau compared two separate witness statements.
Ms. Montgomery also sought to discredit some of the other evidence presented by the CBI around a valuation of Kingfisher Airlines by Brand Finance, questioning why another higher figure hadn’t been mentioned by a police officer. She also cited a media report, highlighted in Mr. Lau’s written submission, suggesting “coercion” was involved in CBI Special Director Rakesh Asthana’s approach in instigating the banks to commence criminal proceedings against Mr. Mallya.
The defence also sought to question the use anti-money laundering rules – amended in 2013 to remove the requirement that money laundering had to involve portraying dirty money as clean – in its case against Mr. Mallya, arguing that such application would involve “retrospection application.”
Earlier in the morning, Margaret Sweeney, the CFO of Force India gave evidence, by which Ms. Montgomery sought to question the premise that excessive payments were made by Mr. Mallya as a means of squirreling away money. “Just to deal with the suggestion made that Kingfisher Airlines money was taken for no good reason by Force 1 India and then used for some non Force 1 India purposes – is there any sign in your books?” asked Ms. Montgomery. “Absolutely not!,” said Ms. Sweeney, following a detailed examination of figures between 2008 and 2012. Ms. Montgomery indicated that rather than Force India being a “conduit” to give money to Mr. Mallya, it worked the other way around, where repayments were subsequently made to Kingfisher, following a request from Mr. Mallya after the company’s financial difficulties. Contrary to the suggestion that overpayments were made, Ms. Sweeney insisted that the sponsorship had provided strong value for money, with high levels of media coverage, and an ‘enormous platform to advertise” the Kingfisher brand.
The case is set to resume on Tuesday, when Lawrence Saez, a SOAS university professor on South Asian politics is set to give evidence, while Dr. Alan Mitchell, an expert on jail conditions including in India will testify on Thursday.
At the conclusion of the day’s proceedings, while looking ahead Montgomery said she sought greater clarity from the prosecution on their definition of the crimes that had been allegedly perpetrated – potentially in the form of draft charges - suggested that different documents from the first affidavit to the position statements put things differently in subtle ways. “I certainly need to understand how the banks are said to be involved,” said Judge Emma Arbuthnot. “It’s something I feel uncertain about. I need to pin you down.”
