Former liquor tycoon and loan defaulter Vijay Mallya has lost his plea in the UK’s High Court against an extradition order to India. This development can be seen as another positive step towards bringing loan defaulters, who have fled to other nations, back to India.

While Mr. Mallya has another plea left in which he can knock the doors of UK’s Supreme Court, the chances of a stay on extradition order seems bleak.

What is an extradition? How do countries come to a mutual agreement that pertains to the transfer of foreign offenders to their home country? We try to shed more light on this pressing issue.

Extradition means delivery of a person from one State (where the person currently resides) to the ‘requesting’ State (where the person is accused or convicted of any offence). It is an exercise done to bring back the fugitive criminals from foreign lands, in order to present them in the domestic court of law for trial.

The Indian Extradition Act, 1962 lays the legislative provisions for matters related to extradition. The Consular, Passport and Visa (CPV) division of Ministry of External Affairs (MEA) monitors and handles all the incoming and outgoing extradition requests.

Extradition Process

When a person after committing a crime has escaped from the country, and has taken refuge in a foreign jurisdiction, the MEA sends an ‘extradition request’ on behalf of the Republic of India to that foreign state/country.

The extradition request consists of various documents citing the details of the offender, nature of offence, case details, legal provisions etc.

The involved foreign country, after examining the situation, takes the necessary actions according to its own extradition policies.

Once extradited, the criminal is held under custody, and thus tried for his offence.

Extradition Treaties

The extradition treaties are usually bilateral agreements between two countries regarding the extradition of fugitive criminals. These treaties provide an obligation on a country, in which the fugitive has taken shelter, to acknowledge the extradition request, and thus start proceedings against the asked criminal.

As of 2018, India has such bilateral treaties with 43 countries and ‘extradition arrangements’ with further 10 countries. In comparison to India, the US and UK have extradition treaties with 100 countries each, whereas some others nations stand on - Russia (64), Canada (49), China (37) and Pakistan (13).

India, which also suffers from cross-border terrorism, does not have extradition treaty with its neighbors like Pakistan, Afghanistan, China and Myanmar.

INTERPOL (International Criminal Police Organization) can also issue notices (Red and Blue Notices in case of extraditions) to governments in order to extract information about the fugitive criminal and can assist in surrender/delivery of a said person to the country seeking extradition.

Mutual Legal Assistance Treaties (MLAT):- Under these treaties, the requesting country can demand the foreign Government to summon and collect the testimony of the fugitive criminal. This does not include detention or extradition. Also, responding to such summon is not binding on the addressed criminal. India has these treaties with 39 countries.

Extradition Norms

Extradition is not just confined between treaty members. For example India can also send extradition request to a non-treaty country, but the addressed country will not be obliged to take any action. To overcome such hurdles, some arrangements can be made through diplomatic channels regarding the extradition exercise. The foreign country may then act according to its own procedures and can demand reciprocity.

Provisional arrest request : - The country demanding the extradition of a fugitive can also request for the fugitive’s arrest by provisional authorities of the foreign land, so that the said person cannot run-away until the completion of extradition process.

: - The country demanding the extradition of a fugitive can also request for the fugitive’s arrest by provisional authorities of the foreign land, so that the said person cannot run-away until the completion of extradition process. Dual Criminality :-The crime committed by the accused fugitive should fall in the category of ‘dual criminality’, that is, it should be a punishable offence by law in both the involved countries.

:-The crime committed by the accused fugitive should fall in the category of ‘dual criminality’, that is, it should be a punishable offence by law in both the involved countries. The crime not falling under the ‘list of crimes’ mentioned in the treaty cannot be reasoned for the extradition. Also, extradition can be denied for ‘purely military or political offences’.

UN Conventions :- There are certain United Nations conventions like UN Convention Against Corruption (UNCOC) - of which India is a signatory – under which a fugitive who has committed an offence related to corruption can be unconditionally extradited to the requesting country. Thus, ‘dual criminality’ would not be applicable in such a case.

:- There are certain United Nations conventions like UN Convention Against Corruption (UNCOC) - of which India is a signatory – under which a fugitive who has committed an offence related to corruption can be unconditionally extradited to the requesting country. Thus, ‘dual criminality’ would not be applicable in such a case. There are countries where capital punishment is banned. If a fugitive has taken refuge in such a country, and the authorities of that country thinks that, if extradited, the accused might get capital punishment, then it is most likely that the country will refuse to extradite.

Since 2002, 62 fugitives have been brought back to India out of 110 requests made. As of 2018, more than 150 extradition requests are lying pending whereas 16 are under process. The provision for death sentence, in the rarest of the rare cases though, in India could be one of the reasons behind this low success rate.

Some high profile criminals of whose extradition India awaits are like David Headley, and Tiger Hanif, both terrorists, and Mehul Choksi, Nirav Modi, and Vijay Mallya, all of them are economic offenders.

Vijay Mallya’s Case

Vijay Mallya is an Indian businessman who is accused of fraud and money laundering, and owes a whopping Rs 9000 crore to 17 Indian banks. He is currently in London, UK and India is seeking his extradition.

Recently, on April 24, 2020 the High Court of England and Wales approved Mallya’s extradition to India.

Backdrop

Mallya took the reins of the UB Group from his father at the age of 28 and made huge profits till his Kingfisher Airlines (founded in 2005) suffered huge losses and succumbed to debt ridden death in 2012. The fortunes of Mallya had already started decaying since the global recession of 2008 which saw lofty rises in fuel prices.

In 2016, amidst CBI raids and SBI’s consortium moving to Debt Recovery Tribunal, Mallya, in the month of March, fled to London.

From London, Mallya proposed to return 4000 crore to Indian banks, but his request was rejected. Several cases of money laundering were registered against him and Enforcement Directorate (ED) issued a non-bailable warrant, following which his passport was also revoked.

As per the extradition treaty, Mallya was arrested on India’s request in April 2017 and proceedings against him began. After several hearings, a UK court approved Mallya’s extradition in December, 2018. Responding to which, Mallya filed a petition against the order. After a month, Indian special court declared Mallya a ‘fugitive economic offender’.

In February, 2019, the UK Home Secretary had also ordered Mallya’s extradition. The final nail on the coffin was put by the High Court of England and Wales on April, 2020.

Final nail on the coffin? Will Mallya be extradited soon?

Technically it may not be the final nail on the coffin as Vijay Mallya has still one legal option left, that is to appeal to the Supreme Court of UK. He has got 14 days (till May 3, 2020) to place his plea. However, it is unlikely that he will be relieved by the Supreme Court, thus making it nothing more than a legal formality. The Covid-19 crisis might further delay his case hearing by months.

Hence, Mallya might not be extradited in the coming days, but we can expect him to land in India in the coming months.