Vijay Mallya may use these 3 options to stall extradition

HIGHLIGHTS

  • Vijay Mallya may have three last options to stall extradition
  • One of the options is appealing to the UK Home Secretary Priti Patel. 
  • Mallya’s appeal against extradition at Supreme Court level already denied

Beleaguered liquor baron Vijay Mallya, who was denied permission to appeal against his extradition order at Supreme Court level, has three more options left to explore to defend himself.

One of the options is appealing to the UK Home Secretary Priti Patel.

Explaining the process, Barrister Mathupandi Ganesan, an expert in extradition law, said Mallya can make further representations to the home secretary based on fresh evidence.

“Mallya has the option of making further representations to the UK home secretary based on new evidence or intervening event such as the pandemic and the Covid-19 crisis,” Ganesan added.

“The evidence has to be strong for the UK Home Secretary or the high court to reconsider the issues on human rights,” says the Barrister Muthupandi Ganesan.

Ganesan said one “potential argument” Mallya could mention regarding the Arthur Road jail in India, where he will be loaded after extradition.

“The potential argument could on be about Arthur Road jail not having sufficient facilities, process and capacity to keep him safe from Covid-19 in the jail.”

The extradition of Mallya was ordered by the Westminster Court on December 10, 2018. The Home Secretary had signed the extradition order of Vijay Malla on February 3, 2019.

Since then, he has appealed against the high court’s judgement, after a long hearing in the case. Eventually, the high court denied permission to appeal at Supreme Court too.

As per law, UK Home Secretary bases his/her decision of signing an extradition order on the following grounds:

* The person could face 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.

* 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)

* 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)

Over and above these, are the discretionary powers and thus representations can be made to the office of the Home Secretary, innumerable times till the very last day of being extradited.

For instance, let’s take the case of Tiger Hanif, a man wanted by India in relation to two bombings in Surat, Gujrat.

One bombing in January 1993 in Surat’s Varacha Road market killed an eight-year-old girl and another one in occurred in April 1993 at the Surat Railway Station.

Hanif aka Mohammed Hanif Umerji Patel, who is believed to be from Dawood Ibrahim’s gang, was ordered to be extradited in June 2012 by the then Home Secretary Theresa May, but later requited.

A recent statement from the Home Office said, “We can confirm that the extradition request for Hanif Patel was refused by the then Home Secretary and he was discharged by the court in August 2019.”

In that period, the Home Secretary was Sajid Javid.

The valid question that arises is how long the UK Home Secretary mull over a case? As per Barrister Ganesan, “The Home Secretary can take as long as required to give the final certificate for extradition between UK and India so can be more than 28 days, if it is in the interest of the person being extradited for e.g. due to new evidence coming into play or for some other national security reasons etc. Normally, the Defendants don’t complain as it means they get to stay longer in the UK.”

Political asylum under immigration law

Another option that Vijay Mallya can explore is seeking political asylum under immigration law.

“He can take this route anytime he likes. Political asylum falls under immigration laws and it is a totally separate procedure. This is a potential legal avenue, but he has to really demonstrate that he will be persecuted if he returns to India,” says Barrister Ganesan.

European Court of Human Rights

The last resort involves the European Court of Human Rights. Despite Brexit, the UK is still in transition period of moving out of the European Union. Therefore, Mallya can approach the European Court of Human Rights.

“He could apply under Rule 39 of the European Court of Human Rights to get a stay of his extradition pending the formal application to review his extradition to India. These applications are known as interim measures. These are usually only for very limited circumstances for eg. Where there is a threat to life, ill-treatment namely prohibition of torture and inhuman or degrading treatment),” says Barrister Ganesan.

The Interviewee Mr Muthupandi Ganesan, a Barrister and an expert in Extradition Laws is a Partner at Ganesan and Manuraj Legal LLP

Link to full article on India Today : https://www.indiatoday.in/india/story/vijay-mallya-extradition-india-uk-london-home-secretary-coronavirus-1679913-2020-05-20