Human Rights, International Law, Posts

Why India Needs to Buckle Up for a Long Journey Ahead?

By: Aastha Mehta

Vijay Mallya’s rise and fall can be a classic Indian movie potboiler. His running away secretly to London; fighting the charges against him legally in British courts have been the subject of various news reports and journalistic commentary. However, in this piece, I am going to dedicate my attention solely to why India may see itself in choppy waters, legally speaking, in extraditing Mallya back to India. There are major loopholes that Mallya’s legal brigade has been craftily using to buy more time for him to stay in London. However, before I move to these loopholes, it is necessary to understand the approach British Courts have towards extradition cases.

British Courts are very conservative about human rights

By very conservative, I mean, they are extremely stringent in the application of human right laws. British Courts take the question of human rights of the requested person very seriously. The increasing role of human right protection for the requested person is seen through the lens of Select Committee on Extradition Law 2nd Report of Session 2014-2015[1], which stresses upon application of human rights in all circumstances. It is the Court’s bounden duty to decide in the extradition hearing whether the extradition of the person requested would be compatible with the obligations of the European Convention on Human Rights (hereinafter ECHR). ECHR has a high standard of human rights, which the Requesting country needs to fulfil. However, in the current post-Brexit scenario, another question that comes glaring on the face is whether Britain is still bound by ECHR requirements or not. Once the withdrawal negotiations start, the test of complying with ECHR might become redundant in the context of extradition. Moreover, withdrawing from ECHR has multiple issues in itself. To top this strict regime, British law itself is vigilant about the treatment of the requested person as to their human rights. Extradition Act 2003[2] reiterates that it is the duty of the judge to assess whether the extradition will be compatible with the ECHR and the Human Rights Act[3]. India falls under the Type B of Category 2 countries of the 2003 Act, therefore the human rights scrutiny fairly applies to the case as well.

Loopholes

Now that we have seen the human right concerns, let us see why India needs to charter through multiple loopholes in the Vijay Mallya case

  1. India will have to give assurances to the United Kingdom (hereinafter UK) that there would not be a violation of Human rights in India if Mallya’s extradition goes through. India needs to prove that their commitment to human rights is as strong as the British law. It is quite possible that Mallya’s team may make generalised arguments on the poor & deplorable state of human rights in India on the basis of which extradition should be refused. Jago Russell of Fair Trials International elaborated on such generalised argument and stated as follows, “You cannot say the whole of the Russian system or the whole of the Ukrainian system is broken, because that is too difficult to show, but you can show that those specific people are unlikely to get a fair trial because of the influence of the Government or of the FSB or whichever security service in whichever jurisdiction service it is.”[4]
  2. Similar to previously mentioned is the political offence exception under the treaty of extradition signed in 1992.[5] Under Article 5, extradition of the requested person can be refused if an offence is a political offence. However, it is unlikely this defence would stand before the British Courts since Mallya is accused of an offence of financial nature. Cheng v. Governor of Pentonville Prison[6] clearly lays down the law on political offence exception, wherein it states the crime must be specifically and immediately directed at “overthrowing or changing the government of a State or inducing it to change its policy, or escaping from its territory the better to do so.”[7]
  3. One issue which crops up, and which is only procedural, is the question whether the country asking for extradition, should the evidence first be tested before the British courts, in order to decide extradition. Critical evidence which would otherwise have been used by prosecutors in India could now be required to be shown before the British courts. This gives the requested person a leeway to know what evidence is likely to bring against him in India, giving him time to counter those even before the trial in India starts. And a man like Mallya, who is well-placed among the Indian political system can use these critical materials with respect to the loan default charges to his advantage.

These are a few things that must be kept in mind with regard to Vijay Mallya’s extradition to India.

[1] Select Committee on Extradition Law, HL  Paper (2014-15) 18

[2] Extradition Act 2003, s.21

[3] Human Rights Act 1998.

[4] Select Committee on Extradition Law, HL  Paper (2014-15) para 57; <https://publications.parliament.uk/pa/ld201415/ldselect/ldextradition/126/12605.htm&gt; accessed 18th July 2017.

[5] Extradition Treaty between Government of Great Britain &  Northern Ireland and Government of Republic of India, 15 November 1993.

[6] [1973] A.C 931, 945 (H.L)

[7] For more see, Mark Dell Kielsgard, ‘The Political Offence Exception: Punishing Whistleblowers ‘ (EJIL Talk . November 13, 2013) <https://www.ejiltalk.org/the-political-offense-exception-punishing-whistleblowers-abroad/> accessed on 22 June 2017.

(Aastha currently works at Agarwal Law Associates, New Delhi)