On 4 February 2019, the UK Home Office announced that Home Secretary Sajid Javid had approved the extradition of fugitive businessman Vijay Mallya to India. The extradition case was forwarded to Javid by the Westminster Magistrates’ Court on 10 December 2018, after over a year of deliberations to consider whether or not Mallya should be sent back to India.
India had made a formal extradition request to the UK government in February 2017, on the basis of a CBI charge sheet which accused Mallya of fraud to secure loans for Kingfisher Airlines (which were never paid back). The Magistrate had held that if the charges against Mallya are proven, they would constitute the offences of “making false representations to make a gain for himself [Mallya], conspiracy to defraud and money laundering.”
The UK Home Office said that Javid had considered all relevant matters before signing the order on 3 February, and noted that Mallya is “accused in India of conspiracy to defraud, making false representations and money laundering offences.”
But does this mean Mallya will now be extradited for sure? Can Mallya appeal the verdict? And how long will it take before he is brought back to India?
Here’s what happens next.
STEP 1: MALLYA FILES APPEAL WITH UK HIGH COURT
Mallya has 14 days to appeal the Home Secretary’s decision to the UK High Court. In his appeal, he can try to argue that Home Secretary failed to consider the relevant law when approving his extradition.
There are four specific bars to extradition under the UK’s Extradition Act 2003, including the risk that the person extradited could face the death penalty, or that the person could end up being tried for other crimes apart from the extradition offence. If any of these bars apply to Mallya, the Home Secretary was obliged to order Mallya’s discharge. However, it is difficult to see how Mallya would be able to successfully argue any of these conditions applied to him.
However, this doesn’t mean that the extradition case against him is over and done with. Now that the Home Secretary has approved his extradition, Mallya’s appeal against the decision of the Westminster Magistrate’s Court to send the case to the Home Secretary, will also finally be heard.
Mallya filed this appeal back in December 2018 itself after magistrate Emma Arbuthnot recommended his extradition. These are the arguments open to him as part of that appeal:
- There is no prima facie evidence that he is guilty of the crimes the CBI accuses him of;
- Extraditing him would violate his fundamental right to a fair trial since the CBI is unfairly targetting him;
- Extraditing him would violate his fundamental right against torture and inhumane treatment, because of the condition of Indian jails.
STEP 2: MALLYA’S APPEALS IN THE HIGH COURT
The high court will hear both his appeals, against the Home Secretary’s decision as well as the decision of the Magistrate to send his case to the Home Secretary in the first place, together.
As mentioned above, during these appeals, Mallya will get to argue all aspects of the case, including whether his guilt has been prima facie established, as well as his arguments on jail conditions and fair trial.
The appeals are only likely to be heard after several months, subject to the High Court’s schedule, and could take a further few months for the hearings to be completed.
STEP 3: MALLYA APPEALS TO THE SUPREME COURT
If the high court rejects Mallya’s appeal, he can still appeal to the Supreme Court of the UK within 14 days of the high court’s verdict. However, this appeal can only be made if the high court certifies that the case involves a “point of law of general public importance”.
Again, it would take several months before this appeal could be scheduled for hearing, and could take weeks, if not months for the Supreme Court arrives at its decision.
STEP 4: THE UK HOME SECRETARY MAKES A FINAL DECISION
Once the Supreme Court has made its decision, the ball will once again be in the Home Secretary’s court. They will need to make a decision, and if they order Mallya’s extradition, he will need to be extradited within 28 days of the same.
However, the Home Secretary has some amount of discretion over whether to extradite or not, or at least can take as much time as they want to do so. They can also defer the extradition, which can be done for years at a stretch – Dawood aide Tiger Hanif’s legal options were exhausted in 2013, but he has still not been extradited from the UK to India.
Conclusion
To sum up, the decision by Sajid Javid on 3 February is not final, and is subject to appeal in the high court and the Supreme Court. Factoring in scheduling, the time needed for hearings, and the Home Secretary’s discretion, it is likely to take at least a year before Mallya is finally extradited to the country.
It should be noted that in the event any of Mallya’s appeals to the high court are successful, India would be able to appeal those decisions, subject to the same time limits and conditions for Mallya described above.
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