Extradition is a big subject, especially when the persons involved are as big as former ‘king of good times. For India extraditing individuals from the United Kingdom (UK) and other countries has mostly resulted in failure. In the last five years, only one fugitive criminal, Samirbhai Vinubhai Patel, has been extradited from the UK. However, the Indian government has recently asked UK government to cut unnecessary delays and impediments in the extradition of the fugitives and not give any opportunity to the fugitives to circumvent the extradition process. Lex Witness spoke to Amarjit Singh Chandhiok, Senior Advocate and former Additional Solicitor General of India and former Principal Counsel, State and Judicial Affairs, European Union Commission to know what law prevails and how this case will in all likely proceed in the court of law in the UK.
The Extradition Act 1962 is operative in India. Extradition of one – surrender by one State to another, is sought to deal with a crime one is accused or convicted of, which are justifiable in the Courts of another State. Surrender of a person within the State and extradition to another State whether a citizen or alien, is a political act done in pursuance of a treaty or an ad hoc arrangement. The broad principle of extradition is that it is in the interest of civilized communities that crimes should not go unpunished, and on that account it is recognized as a part of the comity of nations that one State should ordinarily afford to another State assistance towards bringing offenders to justice. Extradition is granted in implementation of international commitments of the State, the procedure to be followed by the Court in deciding whether extradition should be granted and if so, on what terms, which are determined by the municipal law of that State. Extradition law in India at present consolidates and amends the law relating to the extradition of fugitive criminals and provides for matters connected therewith or incidental thereto. It may be added that since Mr. Mallya is in the UK, which forms part of Commonwealth Countries, there are special provisions provided under the Extradition Act, in respect of Commonwealth Countries.
The grounds on which Mr. Mallya’s extradition is sought is not in the public domain, but with what can be gathered from the public domain, one can see that his extradition has been sought for he has to be prosecuted according to the Indian law, as he has misled the authorities in India including banks in granting loans to Kingfisher Airlines and is necessarily a guarantor for that. In terms of the Indian Penal Code if an Indian citizen commits any offence under any law In India, his extradition can be sought so as to try him within the Indian soil.
In England, Extradition Act 2003 is in operation. Section 69 of the said Act deals with extradition from the United Kingdom to territories designated for the purposes of the said Part by order made by the Secretary of State. The extradition gets triggered once the Secretary of State issues a certificate under Section 70 of the Extradition Act 2003 that he has received a valid request for extradition of a person in UK. The Secretary of State, however, can refuse to issue the said certificate in terms of Section 126 of the Act, which deals with competing requests. The Secretary of State, however, while issuing the certificate, has to be satisfied that the accused is guilty of or charged with the commission of an offence or has been unlawfully at large after conviction by a Court. The certificate so issued by the Secretary of State is sent to the appropriate judge along with a copy of the request received from another State (here, India) along with a copy of relevant Order in Council. After initial hearing, the Judge has to decide whether the person’s extradition is barred by reason of – (a) the rule against double jeopardy; (b) extraneous considerations; (c) the passage of time; and (d) hostage-taking consideration.
If the above questions are decided in favour of Mr. Mallya, he will be discharged in terms of Sections 80 to 83 of the Extradition Act, 2003 and will not be extradited. The Extradition Act also provides the guidelines under Sections 80 to 83 as to how the Judge has to proceed in relation to any of the aforesaid reasons and only on holding the same against Mr. Mallya that an order of extradition can be passed.
For the purposes of as to what constitutes an extradition offence, the said Act provides that the offence so charged (against Mr. Mallya) must constitute an offence in law in UK, punishable with imprisonment or detention for twelve months or greater and the offence is so punishable under the Indian law.
In view of the above, Mr. Mallya will have grounds available to him, as said above, to stall or seek discharge from the Extradition Court. Mr. Mallya can challenge his extradition on many a ground available within the Indian jurisdiction including satisfying the claims of the Indian banks or other creditors, settling the claims at a particular amount in terms of the RBI norms and the Schemes of Government of India and also to urge that there are extraneous considerations that the Indian Government is seeking his extradition and or by passage of time extradition is not the proper remedy. Mr. Mallya would also be entitled to take a defence in terms of Section 83 of the Extradition Act 2003 which would bar his extradition, as well as defence under Section 1 of the Taking of Hostage Act 1992. However, all these are questions of fact which can actually be looked into only if one has access to the grounds raised by the Government of India as well as those raised by Mr. Mallya.
I am of the view that there cannot be any practical difficulties except as to how the Government is making its request to the United Kingdom for Mr. Mallya’s extradition as also as to how the provisions of the Extradition Act 2003 operative in the United Kingdom have been taken care of. If these are properly taken care of, then there cannot be any practical difficulty. If the request made by the Government of India is in conformity with law, then the State Secretary will forward the requisite certificate as mentioned above and the Hon’ble Judge will be entitled to pass an order granting the extradition, or if Mr. Mallya is able to defend and establish the bar, refusing the same. I may also add that prior to the 2003 Act, like the Indian Extradition Act 1962, the London Scheme for extradition within the Commonwealth was prevalent. However, with the 2003 Act, the same has been repealed.
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