Arvind Sukumar

“When you play the game of thrones you win or you die.” This is as apt for the Indian government today, as it was for Lord Neddard Stark. After repeated attempts spanning a little over a year to get the UK to play ball and extradite liquor baron Vijay Mallya, India has had a sip of success; but that means it now finds itself in a precarious position.

Vijay Mallya’s arrest by the Extradition Unit of the London Metropolitan Police on an extraction warrant not only marks the beginning of his extradition process, it also puts India’s legal system, the quality of its investigative agencies, and the diplomatic mettle of its elected leaders under the scanner. At the moment, these three enjoy an edge, but it’s a slight one.

The extradition treaty India enjoys with the UK – and with most other countries – stipulates that a person can be extradited only if the crimes he/she is charged with by the requesting country are seen as crimes in the country of refuge.

Legal experts say this may be one reason why the UK was unwilling to humour Indian investigative agencies earlier. The UK may not have found the argument that Mallya committed fraud when he “willfully defaulted” on loans worth over Rs 9,000 crore before fleeing the country compelling, especially when Mallya’s counter-argument that the failure of business in the normal course of operations cannot be criminalised, held merit.

Let’s also not forget that banks were more than willing to advance loans to Mallya and his entities on the strength of perceived goodwill and brand value, and the ensuing defaults point more towards gaping holes in their due diligence and loan processing policies than to wrongdoing by Mallya.

This argument gains weight, when one hears senior criminal lawyer Satish Maneshinde say, “since Mallya had earlier agreed to pay the principal amount that he owed to the banks, he may not be considered a willful defaulter by UK authorities and the banks' claims of being cheated may fall flat. I don’t believe banks’ claims of being cheated will stand the test of scrutiny of law in the UK.”

Terms and conditions

The Westminster Magistrate’s Court, which will begin hearing Mallya’s case on May 17, will now have to satisfy itself of four key conditions. First, that the conduct Mallya has shown amounts to an extradition offence – essentially, that the crimes he’s charged with in India are also crimes under British law. Second, that none of the statutory laws barring extradition apply. Third, that there is prima facie evidence of guilt, and lastly, that the extradition will not breach Mallya’s human rights.

Now it can be argued that condition one is easily met, since it appears that the request for extradition was considered only after charges of money laundering, which is a crime in both jurisdictions, were tacked on to the earlier allegations of fraud. These additional charges have to do with the Rs 950 crore exposure IDBI Bank has to Vijay Mallya, for which non-bailable warrants have been issued separately to the CBI and the Enforcement Directorate, with the latter also securing a special court order to invoke the India-UK Mutual Legal Assistance Treaty.

Condition two may also not be a problem. The three most common prohibitions for extradition include a) the person being extradition facing death, b) the person will be prosecuted for offences other than the offences for which he/she has been extradited, and c) if that person has already been extradited to the UK from a third state or international criminal court. The first two scenarios are unlikely, and the third is not applicable because Mallya went to the UK from India of his own volition.

So it’s condition three that could tip the scales. The court will go through the evidence the Indian investigative agencies have collected against Mallya and hear his side of the story. Then they will determine whether India does indeed have a prima facie case that could result in a conviction. The operative legal concept here is prima facie –so not whether Mallya is guilty of the charges, but whether there is sufficient evidence against him to make him stand trial. In effect, it’s the Indian legal system and the Indian investigative agencies that will first go on trial.

Reality check

If the court finds there is sufficient evidence, and is convinced that all procedural requirements are met, the case will be forwarded to the Secretary of State. Due process ensures that the accused can appeal this decision in the High Court, and take it further up the chain to the Supreme Court if necessary. Only if these appeals fail will the Secretary of State sign off on the order, and give the extradition the final go-ahead.

Ramesh Vaidyanathan, Managing Partner, Advaya Legal believes the entire extradition process could take 18-24 months because Mallya, who has been fighting Indian authorities and the judicial system every step of the way for over a year, is not likely to suddenly roll over and play dead. Others suggest Mallya may be pounding the pavement in India (metaphorically speaking, of course) before the monsoons take hold.

Either scenario is possible, provided the extradition request does not get thrown out. Yes, that’s a possibility. As Shailesh Haribhakti of Desai-Haribhakti Group put it, “past experience shows that there is a 50:50 chance of Mallya's extradition taking place.”

Of course, the way the BJP and its allies tom-tom it, the diplomatic genius of Finance Minister Arun Jaitley, under the aegis of Prime Minister Narendra Modi, has been a major factor. Now there is no doubt that the government did push repeatedly for British co-operations in its endeavors to get Mallya back on Indian soil.

While handing over the request, India had asserted that it has a "legitimate" case against Mallya and maintained that if an extradition request is honoured, it would show British "sensitivity towards our concerns". Realistically, however, whether these diplomatic entreaties, maneuverings and posturing really worked, is anybody’s guess. After all, they haven’t worked in getting Lalit Modi back from London (granted the charges against him, while serious, are not seen as being of a similar magnitude).

More importantly, for the Indian government, this is a litmus test. BJP’s Subramanian Swamy has gone on record saying Mallya’s arrest is a signal that “Modi means business and he was always in a fight against corruption. It's time for Mallya to go to jail”. But if things go south and the extradition request is denied by the British courts, the government will be left with egg on its face.

A successful extradition will not be enough to score political and populist brownie points either. It will have to be followed up with enough legally sound evidentiary firepower to get a conviction – not just to appease the BJP's political allies and rivals, but to show the world it really means business when it comes to (alleged) white collar crime.