Why is extradition of Vijay Mallya not a cakewalk for India?

New Delhi, Feb 5: The Bharatiya Janata Party (BJP) led Narendra Modi government was delighted on Monday after the British government cleared one more step in the direction of the extradition process of businessman Vijay Mallya, wanted in multi-crore loan recovery cases by several banks, to India.

British Home Secretary Sajid Javid formally signed the extradition order for Mallya. The order came after the Westminster magistrates court on December 10 allowed his extradition to India to face legal proceedings in the cases, which was sent to the Secretary of State for approval.

"On 3 February, the Secretary of State, having carefully considered all relevant matters, signed the order for Vijay Mallya's extradition to India. Vijay Mallya is accused in India of conspiracy to defraud, making false representations and money laundering offences," a British home office spokesperson said.

However, Mallya has 14 days to appeal the government order, which gives the embattled liquor baron relief at this juncture.

Though there is euphoria in Indian media and political circles, but Mallya as well as Indian authorities know very well that his extradition to India, if it happens, will not happen overnight.

He is fighting his extradition case under the British Extradition Act 2003, which provides a framework for extradition proceedings in the UK.

The Act came into effect on 1 January 2004 and transposes the Framework Decision on the European Arrest Warrant into domestic legislation and retains, with some modifications, arrangements for extradition to non-EU territories.

The Act draws a distinction between category 1 territories which are European Union Member States, and category 2 territories, which are all other territories, including India, with which the UK has extradition arrangements.

The extradition process to category 2 territories follows these steps: 1. extradition request is made to the Secretary of State; 2. Secretary of State decides whether to certify the request; 3. Judge decides whether to issue a warrant for arrest; 4. The person wanted is arrested and brought before the court; 5. Preliminary hearing; 6. Extradition hearing; 7. Secretary of State decides whether to order extradition.

With Mondays development, Mallya has gone through all above seven steps, including being arrested twice and getting bail.

Another aspect of the Secretary of States Monday order is that it didnt come due to any extra efforts of the Indian government, but the UK Extradition Act 2003 mandates the Secretary of State to order extradition unless the surrender of a person is prohibited by certain statutory provisions in the Act.

Under the Act, extradition is prohibited by statute if: 1. the person could face the death penalty (unless the Secretary of State gets adequate written assurance that the death penalty will not be imposed or, if imposed, will not be carried out); 2. there are no speciality arrangements with the requesting country - 'speciality' requires that the person must be dealt with in the requesting state only for the offences for which they have been extradited (except in certain limited circumstances) ; 3. the person has already been extradited to the UK from a third state or transferred from the International Criminal Court and consent for onward extradition is required from that third state or that Court (unless the Secretary of State has received consent)

"If none of these prohibitions apply, the Secretary of State must order extradition. Or, if surrender is prohibited, the person must be discharged," says the UK Extradition Act.

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 as per the provisions of the Extradition Act 2003.

Mallya filed this appeal back in December 2018 itself after magistrate Emma Arbuthnot recommended his extradition.

Soon after Javid signed the extradition orders, Mallya tweeted: "After the decision was handed down on December 10, 2018 by the Westminster Magistrates Court, I stated my intention to appeal. I could not initiate the appeal process before a decision by the Home Secretary. Now I will initiate the appeal process."

Now, Mallya has the option to appeal against the Secretary of State's orders in the High Court under Section 108 of the Extradition Act 2003.

However, the High Court may allow or dismiss the appeal.

Section 109 of the Extradition Act defines Court's powers on appeal under section 108.

It says that the court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

The subsection 3 defines the conditions that : (a) the Secretary of State ought to have decided a question before him differently; (b) if he had decided the question in the way he ought to have done, he would not have ordered the person's extradition.

The subsection 4 defines the conditions that: (a) an issue is raised that was not raised when the case was being considered by the Secretary of State or information is available that was not available at that time; (b) the issue or information would have resulted in the Secretary of State deciding a question before him differently; (c) if he had decided the question in that way, he would not have ordered the person's extradition.

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.

The other step of the extradition process is appeal in the Supreme Court, but there is a catch: appeals to the Supreme Court can only be made if the High Court has certified that the case involves a point of law of general public importance.

The UK Extradition Act 2003 also gives an option to the aggrieved party to appeal before the House of Lords under Section 114.

The 2003 Act says: An application to the House of Lords for leave to appeal under this section (114) must be made before the end of the permitted period, which is 14 days starting with the day on which the High Court refuses leave to appeal.

Its notable that Sections 21 and 87 of the Extradition Act 2003 deal with Human Rights and a Joint Committee of House of Lords and House of Commons on Human Rights in Fifteenth Report titled The Human Rights Implications of UK Extradition Policy has heavily emphasised on protecting the human rights of the extradited or to be extradited persons.

It recommends to the UK government that "we have heard evidence that Sections 21 and 87 of the Extradition Act 2003 do not, in practice, offer adequate human rights protection for those subject to proceedings and that the courts have set their interpretation of the threshold too high".

Therefore, it is likely that a persons case whose extradition is sought reaches before the House of Lords then the person has very high chances of getting a relief on human rights grounds.

It is notable that during the extradition proceedings, Mallyas lawyers also challenged the case on human rights grounds, questioning the conditions at Arthur Road Jail in Mumbai, where the businessman is to be held post-extradition, but they failed to convince the lower court.

However, it will not deter his lawyers to challenge the extradition order on the human rights grounds in the High Court or if required before the House of Lords.

In 2017, a judge at Westminster Magistrates' Court in London rejected UK-based alleged bookie Sanjeev Kumar Chawlas extradition request by saying that his human rights will be violated in Tihar Jail.

"There are strong grounds for believing that the RP (Requested Person: Chawla) would be subjected to torture or inhuman or degrading treatment or punishment in the Tihar prison complex, due to the overcrowding, lack of medical provision, risk of being subjected to torture and violence either from other inmates or prison staff which is endemic in Tihar," Judge Crane noted in her judgment.

Mallya and Indian government are also aware of the fact that the UK Extradition law does not easily allows final extradition. The total number of fugitives India requested UK to extradite since 2002 is 28 but only one - Samirbhai Vinubhai Patel - has so far been extradited.