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Over the last few years, a number of high profile persons accused in white collar crimes and money laundering cases have fled India. It has been nearly impossible for Indian authorities to extradite these persons and these issues have been pending adjudication before various courts in the United Kingdom (UK).
However, two recent decisions by the High Court of England & Wales, rejecting the extradition appeals of Vijay Mallya and Sanjeev Chawla, are a clear and discouraging sign for others in line. Once considered a paradise for Indian fugitives, the United Kingdom, and especially London, may be losing its appeal for those who are seeking to escape the clutches of law in India.
In both cases - Mallya's and Chawla's - the Government of India has succeeded in resisting their appeals against extradition. The two cases are significantly different in nature, complexity and value. Nevertheless, they are important in setting precedents in extradition matters between India and the UK involving ‘assurances’ being provided by the Government of India to satisfy the requirements of a UK Court.
In Chawla's case, the Indian government initially failed in arguing its application at the Magistrates Court for extradition, after it was found that the prison conditions in India would amount to a risk of inhuman and degrading treatment.
However, the Indian government was able to provide an ‘assurance’ that Chawla would be held in specified cells within Tihar Jail. As a diplomatic assurance, an undertaking was provided as to how Chawla would be treated in India. This included specifications on proper safety, security and hygiene requirements.
This assurance was sufficient to enable the successful extradition of Chawla to India on the February 23, 2020. Upon being extradited to India, at present, there is no suggestion that India has not abided by the diplomatic assurance given to the Court.
However, in Mallya’s case, even at the Magistrate Court proceedings, the arguments in relation to the poor conditions of Indian prisons were dismissed by the Court on the basis of assurances given by the Government of India that if extradited, Mallya would be held at Arthur Road Jail in conditions that are comparable to international standards.
As such, in both cases, diplomatic assurances have been vital part of the defense strategy.
Prima Facie Case
As such, the only ground on which Mallya was granted permission to appeal to the High Court was in relation to whether there is a prima facie case against him on charges of conspiracy to defraud and fraud by misrepresentation.
At the Magistrates Court, the Senior District Judge found that there is a prima facie case made out against Mallya on charges of conspiracy to dishonestly obtain bank loans without having the intention of paying them back. The finding in this case is as follows:
“I find a prima facie case of a conspiracy to defraud which involves not just the KFA executives but also the named bankers in IDBI...there is clear evidence of dispersal and misapplication of the loan funds and I find a prima facie case the Mallya was involved in a conspiracy to launder money."
On appeal against this order, the High Court roundly rejected the battery of arguments advanced on behalf of Mallya in challenging the prima facie case finding by the Senior District Judge. Some of the appeal grounds were described by the Court as “barren of merit”.
In dismissing the appeal, the High Court held that there is a prima facie case of fraud by false representation and conspiracy to defraud against Mallya based on its review of all the admissible evidence in the case. Therefore, it was naturally held that Mallya should be extradited to India to face the charges.
Narrowing Routes of Appeal
Mallya now has two potential routes to appeal to the Supreme Court by inviting the High Court justices within 14 days of the decision to certify that there is a point of general public importance involved in the case. If the certificate is granted, then the matter will proceed to the Supreme Court on appeal. If the certificate is not granted by the High Court, then Mallya has 28 days from the date of the decision to appeal to the Supreme Court seeking permission to appeal against the decision of the High Court.
Any permission to appeal application may take up to 2 to 3 months or so to be decided by the Supreme court. If permission is granted, then the actual appeal proceedings may take anything from 6 to 18 months to conclude.
As such, in all respects, the avenues of appeal are narrowing. If permission to appeal is not granted, then Mallya, like Chawla, may appeal pursuant to Rule 39 of the European Court of Human Rights on an urgent basis for an interim measure, seeking to stop the extradition to India. Interim measures are rarely granted and apply only where there is an imminent risk of irreparable damages in very limited circumstances, such as a threat to life, ill-treatment, right to respect for private and family life, etc.
At present, the potential avenues for Mallya to resist extradition seem to be shutting down very fast and he may meet the same fate as Chawla. However, the current COVID-19 pandemic and the lockdown imposed in the UK and in India may pose further practical difficulties in terms of his extradition to India, as the UK rules require for an extradition to be carried out within 28 days of the dismissal of the appeal.
It is to be seen how the Government of India will process and execute the extradition in circumstances when international travel is suspended for the foreseeable future. But one thing is clear: the United Kingdom is no longer the paradise it used to be for Indian fugitives.
The authors are advocates and founders of Chennai-based law firm Ganesan and Manuraj Legal LLP.