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How Vijay Mallya could fight extradition on political grounds

19 April, 2017 3:42 PM
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How Vijay Mallya could fight extradition on political grounds

Mallya may seek to challenge extradition on the basis that the request for his extradition is politically motivated, and can claim he won't get a fair trial in India. He can also raise the condition of Indian prisons as a factor behind the extradition request being declined.

LONDON: Indian tycoon Vijay Mallya, who has been declared a proclaimed offender, is likely to challenge his extradition to India from the UK on the grounds that the charges against him are politically motivated, a legal expert said.

The 61-year-old liquor baron, who has been living in a self-imposed exile in Britain since last year, was arrested by Scotland Yard on Tuesday on fraud allegations, triggering an official extradition process in the British courts.

Mallya was released on conditional bail a few hours later after providing a bail bond worth 650,000 pounds and assuring the court of abiding by all conditions associated with extradition proceedings, such as the surrender of his passport and a ban on him possessing any travel documents.

The UK's Crown Prosecution Service (CPS) will now argue the case on behalf of the Indian authorities.

"The Crown Prosecution Service, acting on behalf of the Indian authorities, will need to demonstrate a prima facie case ie. produce some evidence to show that the criminal charges against Mallya, for which his extradition is sought, are justified," said Javinder Nakhwal, partner at Peters and Peters Solicitors LLP and member of the UK's Extradition Lawyers Association.

"There are a number of grounds on which it is possible to contest extradition, some of which might not be relevant to Mallya's case. Mallya may seek to challenge extradition on the basis that the request for his extradition is politically motivated, and that any extradition would constitute a breach of certain human rights," she explained.

The precise ground on which Mallya contests his extradition remains to be seen.

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His legal team will seek to support their arguments with factual and/or expert evidence and can claim he won't get a fair trial in India and can also raise the condition of Indian prisons as a factor behind the extradition request being declined.

The Indian authorities will have an opportunity to respond to any such evidence, she said.

"When the case returns to court on May 17, the district judge is likely to set down a timetable for the service of any evidence to be submitted by either side in the proceedings, and list a date for a final hearing.

Sarosh Zaiwalla, founder and senior partner of Zaiwalla & Co. Solicitors, also believes it will be a "long and strenuous" process which may not succeed at the end.

"This is because, the judge will have to be satisfied that Mallya will get a fair trial in India. His (Mallya's) lawyers will argue he is being politically hounded and is a victim of a media trial. He might also point out other Indian businessmen owe much more money to Indian banks, but his client has been singled out for persecution," Zaiwalla said.

He also highlighted that Mallya has the final option of approaching the European Court of Human Rights, at least until the UK completes its exit from the European Union (EU).

"It is going to be a complicated affair as Mallya can argue that he may not receive a fair trial in Indian courts which are notorious for being easily influenced," he said.

According to him, the Indian government has to continue using diplomatic channels to build a solid casework proving Mallya will receive a fair trial in India.

"They could also look at the option of legally challenging Mallya in British courts to subsequently bring him to trail in India. A worldwide freezing order on Mallya's assets would be an even more effective option than the extradition route," he said.

Mallya, whose now-defunct Kingfisher Airlines allegedly owes more than Rs 9,000 crore to various banks, had fled India on March 2, 2016.

In January, an Indian court ordered a consortium of lenders to start the process of recovering the loans.

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"Extradition is the formal procedure for requesting the surrender of persons from one territory to another... Part 2 of the Extradition Act, in conjunction with any applicable extradition instrument, regulates export extradition from the United Kingdom to category 2 territories [like India].

"The CPS acts as the representative of the requesting state in category 2 cases (as for category 1 territories), and all proceedings are heard at Westminster Magistrates' Court," a CPS statement said.

At the extradition hearing the judge must decide a number of issues: whether the documentation sent to the court by the Secretary of State complies with the Act; whether the person arrested is the person named on the warrant; whether the offence detailed in the request is an extradition offence et al.

If the District Judge rules in favour of extradition, the UK home secretary must order Mallya's extradition within two months of the appropriate day.

India and the UK have an Extradition Treaty, signed in 1992, but so far only one extradition has taken place under the arrangement.

As Mallya is fighting the extradition order, he will have the right to appeal and the case can go up to the UK Supreme Court.

The flamboyant businessman, who still owns Force India Formula One team, has repeatedly denied any wrongdoing. "Not a rupee was misused," he had tweeted earlier this year.

Source: timesofindia.indiatimes.com

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