Vijay Mallya's return won't be a cakewalk

Extradition applications by Government of India to bring back individuals who are guilty of financial misconduct are a hot political issue. Recall that an extradition treaty was signed between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the Republic of India on September 22, 1992. The specificities of such bilateral treaties are a pre-requisite for any extradition cases to be heard or entertained in the UK Court. However, the successful processing of a request depends entirely on a case-to-case basis when adequate legal justifications to extradite an individual are met.

The Article 2 of the Extradition Treaty signed between the UK and India clearly states that "an offence may be an extradition offence notwithstanding that it relates to taxation or revenue or is of a purely fiscal character." In simple terms this guarantees that an offence of taxation or revenue that is of purely fiscal character do qualify as an extradition-worthy offence, and this would generally provide sufficient grounds for India to legally seek Vijay Mallya or Nirav Modi (defendants) to be extradited for their trial in India. An important requirement for extradition application to succeed before the UK Court is that the offence for which extradition is sought by a foreign country is recognised as a criminal offence under UK law.

Still, despite the basic requirements within the frameworks of the extradition treaty, there is an overarching requirement under English law for the court to ensure that a person, if extradited from the UK, would get a fair trial in the requesting country and will be treated in a humane fashion while in detention awaiting trial, and if convicted in jail. It would seem the Indian government (applicant) had, in the case of Mallya, missed to address the human rights concerns. This could well be partly because the extradition treaty fails to provide a proper legal framework for the balancing of the human rights and the interest of the Indian fugitive in the UK. Since human rights play a major pre-requisite, the UK, accordingly, classifies preferential countries, with the US and European countries in Category 1 – over India which is placed under Category 2 – for which the process is arduous and long.

Based on the numbers provided to Sir Scott Baker's panel, under Britain's various bilateral treaties, 130 extradition requests were submitted from the US to the UK. Of those 130 requests, the UK has refused 10. Of the remaining 120, 77 individuals were extradited from the UK to the US; the other 43 cases remained pending in the UK system, or the individuals returned to the US on their own, or other circumstances made the extradition no longer necessary. During the same time period, the UK submitted 54 extradition requests to the US, of which none have been refused. Of those 54 requests, 38 resulted in extradition of an individual from the US to the UK. In the remaining 16 cases, the individuals similarly either returned to the UK voluntarily or other circumstances made extradition from the U.S. to the UK no longer necessary.

In comparison, since India signed the treaty with Britain in 1992, the number of people extradited from the UK to India stands at 1. The case was not via the legal route but on voluntary terms: Samirbhai Vinubhai Patel, who was sought in connection with the 2002 post-Godhra riots in Gujarat.

The numbers of fugitives living the UK that are wanted in India are currently over 60, with the following high-profile cases topping the list: Vijay Mallya (financial); Lalit Modi (financial); Ravi Shankaran (Indian Navy war room leak case); Tiger Hanif (1993 blasts in Gujarat); Nadeem Saifi (Gulshan Kumar murder case); Raymond Varley (UK citizen, child abuse cases in Goa).

Coming back to the Mallya and Lalit Modi cases, irrespective of the bilateral agreement between UK and India, the case might fall in favour of defendant due to Britain's strong human right laws. The Article 3 of the European Convention on Human Rights prohibits torture, and "inhuman or degrading treatment or punishment". The Section 87 of the UK Extradition Act 2003 mandated the court to turn down the plea for extradition of any person, in case the court is not convinced that the extradition would in some way put at risk his or her "convention rights within the meaning of the Human Rights Act 1998". For example, in the case involving bookie Sanjeev Chawla, who was arrested in London in June 2017 over the cricket match-fixing scandal of 2000, UK officials wrote to Delhi police asking for details about security arrangements and facilities in the jail he would be kept in. The court ruled against his extradition, after taking into account overcrowding and lack of medical facilities as well as reports about clashes among prisoners in the Tihar jail. The case is now before the High Court of the UK. The appeal might well fail if the Indian government doesn't improve the conditions in prisons and abide by human rights before the appeal hearing date and made an application to the appeal court to be allowed to put new evidence on the improved conditions of Indian prisons.

These difficulties and inconsistencies are shown in turn to be the product of a broader, two-fold characterisation of extradition. Even though Article 21 of the Indian Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatment to any person whether he is an Indian national or a foreigner, reality indicates otherwise. According to the Imperial Journal of Interdisciplinary Research, over 80 per cent of prisoners are undertrials. Moreover, insufficient provision of medical aid, insensitive attitude of jail authorities, and punishment carried out by jail authorities not coherent with the punishment given by the court make matters worse.

The mobility of criminals and the consequent internationalisation of crime has made domestic criminal law enforcement dependent upon international cooperation. Under such circumstances, India needs to comply with the international human rights laws to obtain similar results as the United States when it comes to extradition.

The writer is Founder & Senior Partner at Zaiwalla & Co. LLP London. Views are personal.