Vijay Mallya’s arrest by the London Metropolitan Police and the grant of conditional bail to him by a Westminster magistrate are significant events. They are likely to go into the annals of Indian criminal justice history as evidence of the government’s determination to pursue a wanton swindler of public money. The cynicism marking discussions on the subject is unjustified.
CBI to the fore
An undeniable fact is that a lot of hard work had been done by both the Central Bureau of Investigation (CBI) and the External Affairs Ministry before taking up the matter with the U.K. government. Also, under English law, an arrest is an act that carries high accountability. No public official can resort to it frivolously or irresponsibly. This is why I do not agree with those who contemptuously dismiss Mr. Mallya’s detention — however short it might be — as nothing beyond symbolic. The arrest is greatly encouraging, because it sanctifies the material collected by the CBI against him. The decision to direct the Scotland Yard (also referred to as the Metropolitan Police) to arrest Mr. Mallya is presumed to have been taken at the level of the Secretary of State.
Laughable is a criticism that the CBI did not do anything to prevent the grant of bail. This was a routine judicial decision that aimed mainly at ensuring that the defendant did not elude the proceedings that were to follow by fleeing the U.K. The prosecution did not have any role in this. To accuse the CBI or the Indian government of not being serious in the regard is to make a mockery of the highest order.
While assessing the prospects of extradition, one must begin by remembering that the papers sent by India had been rigorously scrutinised by the U.K. government up to the level of their Secretary of State and then transferred to the competent court in Westminster with appropriate recommendation. This itself was success of a sort and an unbiased acknowledgement that there was indeed prima facie material against Mr. Mallya.
The battle now moves on to the magistrate who will examine on May 17 all the material placed before him. Any flippant request by an applicant country is bound to fail. From what I can gauge, this is certainly not a capricious demand for Mr. Mallya’s blood.
All eyes on U.K. judiciary
The debate on the subject has unfortunately become politicised. This is sad because the focus has mischievously been shifted to the probability of the accused being made to stand trial in an Indian court, rather than his inescapable criminality. No one in the government or the CBI has taken the position that extradition is a certainty. Their stand is that the best of evidence has been handed over to the U.K. government that has now been passed on to the competent magistrate. If the CBI ultimately fails, it is not that it did not try, but possibly because the investigation did not measure up to the exacting expectations of the U.K. judiciary.
I must mention here the case of Samir Patel, an accused in the Khambolaj case which was one of the nine Gujarat riots cases handed over by the Supreme Court-appointed Special Investigation Team (SIT) led by me from 2008. Mr. Patel escaped from Gujarat after jumping bail more than 10 years ago and lived in the U.K. illegally and without a valid passport. The SIT was able to locate him through a Red Corner notice issued by the Interpol and moved the U.K. government for his extradition. He was recently extradited to India and is now facing trial. Although Mr. Patel did not contest his extradition, there is here an example of how India succeeded in extraditing an offender in the very recent past.
The proceedings before the U.K. magistrate will basically take the form of arguments by lawyers on both sides. There is normally no examination of witnesses who could speak to facts marshalled by the CBI. The greatest strength to the prosecution flows from the fact that almost all the prosecution evidence is in the form of documents. It is possible that the magistrate may demand some more documents to fill any lacunae that come to his notice. This could at best delay progress at the court and nothing more.
Odds stacked against Mallya
On the face of it, there is nothing to suggest that we will fail to get Mr. Mallya extradited. This optimism flows from the fact that the evidence cited against him is essentially documentary. There are also no eyewitnesses to be subverted, a phenomenon that painfully afflicts our criminal justice system.
What kind of defence is Mr. Mallya likely to put up? The speculation is that he will first refer to an alleged political witch-hunt against him citing some statements made by those against him in the political firmament. He may also say that he will not get justice in Indian courts because the enormous media hype that has been generated against him is likely to prejudice the mind of any judge who sits in a trial court. This plea is not likely to succeed because, except in a small number of nations, excessive media attention is the order of the day. A judicial officer is anyway expected to remain unswayed by extraneous factors and concentrate solely on the credibility of the evidence presented before him. The likely plea of harassment by the Indian authorities while facing trial in India will similarly be discounted by the magistrate. At best, the latter might demand an assurance from India that Mr. Mallya will be treated fairly and in accordance with universally accepted human rights standards, and that the offences with which he is charged will not, if proved, lead to a death sentence. It is highly likely that this stipulation may already have been complied with in the application for extradition.
A crucial determinant will be the satisfaction of the criterion of ‘dual criminality’, namely, that the facts arrayed against Mr. Mallya amount to a crime recognised by the English criminal statutes as well. Germane here is the fact that Mr. Mallya is being accused not merely of a failure to repay loans sanctioned to companies chaired by him. If that alone is cited, he could get away under the cover of an unexpected dip in his commercial fortunes. There are the additional charges of cheating and money laundering in respect of the loan received by him from the IDBI. It is the CBI’s emphasis on these two categories of criminal misconduct — recognised by criminal statutes of constitutional government the world over — that is likely to tip the scale in favour of extradition. The existence of a Mutual Legal Assistance treaty is the sine qua non for lending assistance, and this is fortunately well in place between India and the U.K.
Given his flamboyant nature, Mr. Mallya is likely to use every trick of the trade. He has formidable money power that will fetch him a battery of high-profile lawyers. This is why India needs to match his might with a team of counsel that not only has legal acumen but also perseverance. I am told they will be required to assist the Crown Prosecutor who will be arguing the case for extradition.
Trying times are therefore ahead for Mr. Mallya. And definitely interesting times for all of us who will be closely watching the Westminster proceedings. What is important is that the outcome will send a message or two to those who would like to borrow from banks, but have neither the intention nor the capacity to repay.
