india

Updated: Apr 11, 2019 15:35 IST

Controversial businessman Vijay Mallya believes he will be made a “scapegoat” if extradited to India, justice William Davis of the high court has noted, while rejecting this and other grounds to appeal against the home secretary’s February 4 extradition order, narrowing the legal options before the former liquor baron.

The judge’s five-page order of April 5 refusing Mallya permission to appeal dismisses various arguments advanced against the December 2018 judgement of chief magistrate Emma Arbuthnot of the Westminster Magistrates Court, including claims that India will not comply with obligations under the India-UK extradition treaty.

Mallya has until Friday to apply for a hearing in an open court. If applied, it will be heard by a high court judge on a date to be decided based on the court’s schedule, but experts believe his legal options to resist extradition have now narrowed.

“The high court’s dismissal of his written application to appeal is a real setback… It is unusual for leave to be granted when it has already been refused in writing,” said Nick Vamos, former head of extradition at the Crown Prosecution Service, which represents India in UK court hearings.

“If his oral application is also dismissed, the extradition order becomes final if there is no further legal step that can be taken in relation to the appeal. In practice, this means that the extradition order becomes final automatically once leave to appeal is refused at the oral hearing.”

“Mallya would then have to be returned to India within 28 days, although that period can be extended if there is reasonable cause. However, I would be surprised if the Indian authorities did not have the plane on the tarmac, ready to go,” Vamos added.

Mallya, once known as the king of good times, flew to the UK in March 2016 as a consortium of banks owed ₹ 9,000 crore by his defunct Kingfisher Airlines closed in on him to recover the money. In India, he has been declared a fugitive economic offender.

In his application, Mallya raised India’s treaty obligations under “specialty” – the rule that the person sought will be tried only for those offences mentioned in the extradition request, and not for others – and argued that the home secretary should have made specific inquiries from India about this.

Mallya also raised the issue of gangster Abu Salem’s extradition to India from Portugal and the alleged breach of specialty in his case, besides claiming that the home secretary was wrong in not ordering his discharge after “detailed representations” were made.

Justice Davis said in his order: “There was and is no basis for the secretary of state to make enquiries of the kind suggested. The treaty between the UK and India obliges both states to comply with the rule of specialty. The domestic law in India gives full effect to the rule.”

“The reality of this case is that the Applicant believes that he will be scapegoated once he is returned to India,” he said, adding that there was no sufficient basis “for the secretary of state to conclude that the government of India will not comply with its specialty arrangements.”

On Mallya’s witness, Lawrence Saez, suggesting that he is being unfairly targeted by both main political parties in India, the order said: “This evidence did not begin to explain how the political opinions of the Applicant was the underlying reason for the proposed prosecution.”

The judge also dismissed the claim of risk of an unfair trial in India: “India is a democratic country with an independent judiciary. A great deal more than has been provided in this case would be required to raise even an arguable case that someone in the Applicant’s position would not receive a fair trial in India.”

Arbuthnot’s conclusion that there would be no risk to Mallya’s human rights in the Arthur Road jail in Mumbai was challenged on the grounds that it was based on India’s sovereign assurances; instead, it was claimed she should have required jail inspection by an independent expert.

The order dismissed this claim too: “India has had extradition arrangements with this jurisdiction for many years. There is a presumption of good faith inherent in the extradition relationship between the two countries.”

“In this case, there may be good evidence of the general conditions in the prison in which the Applicant will be held but it is not pertinent given the assurances given as to the particular area in which the Applicant will be housed. Those assurances… were very detailed,” justice Davis said.

The order also rejected claims that Arbuthnot made an “error of principle” in her approach while deciding whether Mallya had a prima facie case to answer in relation to bank loans taken by Mallya and his Kingfisher Airlines, and their alleged default.

“There was evidence that: the information provided by the company was not accurate; the loans were misapplied very shortly after the funds were received by the company; the Applicant acted dishonestly once the company’s true position became apparent,” the order said.

Besides extradition, Mallya is facing legal action in the UK launched by the consortium of Indian banks that extended loans.

Due to changes in law since 2015 that limit the home secretary’s discretion in extradition cases, Mallya now has fewer options.

“Exceptional events can occur after all appeals have been dismissed, which would make extradition incompatible with the requested person’s human rights — for example, if his health severely deteriorates,” said Vamos of law firm Peters and Peters Solicitors.

“The law is now clear that, in this event, the case will go back to the high court rather than the decision being for the home secretary. Mallya would have to establish that the issue arises as a result of a supervening development or event and provide a reasonable explanation why the issue was not anticipated at the extradition hearing or on any appeal.”

“Both the home secretary and the courts will be vigilant to any attempts to use these provisions as delaying tactics,” he added.