In May 2016, the UK had refused to deport Mallya but said it recognised India's concerns and could agree to extradition.

Why Britain wont deport Vijay Mallya but can extradite him back to IndiaPTI photo
news Law Thursday, February 09, 2017 - 21:36

India handed over a request to the British High Commission on Thursday for the extradition of liquor baron Vijay Mallya, seeking his presence to face trial in a Rs 9,000 crore loan default case.

"We have today handed over the request for extradition of Vijay Mallya, as received from the CBI, to the UK High Commission in New Delhi. We have requested the UK side to extradite him to face trial in India," Vikas Swarup, Ministry of External Affairs spokesperson said.

Asserting that India has a "legitimate" case against Mallya, Swarup said that it will show the UK’s "sensitivity towards our concerns", if the extradition request is honoured.

The UK had, in May 2016, refused to deport Mallya, but had said that it would help India extradite him.

The difference between extradition and deportation

Extradition, as the CBI describes, is a process by which, one state, upon the request of another, surrenders a person within its jurisdiction to the latter for trial and punishment, for a crime punishable by the laws of the requesting state and committed outside the territory of the requested state.

Deportation, on the other hand, is a process initiated by a country when its immigration laws are violated. According to the Oxford University's Migration Observatory, deportation is the "state-enforced or enforceable departure of a non-citizen from the country". 

India can send an extradition request to any country. However, only countries that are bound by treaties to India, 37 currently, are obliged to consider India’s request. In the absence of a treaty, it is up to the foreign country to consider India’s extradition request. 

However, this has to be done “in accordance with its domestic laws and procedures, whether the country can agree to India’s extradition request on the basis of an assurance of reciprocity,” the Ministry of External Affairs website states.

Why the UK refused to deport Mallya

India has been insisting that the UK deport Mallya rather than extraditing him to India as the former is a faster process. However, according to the 1971 Immigration Act in the UK, a person isn't required to continue to hold a valid passport to remain in the country, if they entered with a valid passport.

Mallya's passport was cancelled in April last year, after he had entered the UK. Mallya has had a UK residency permit since 1992, Devesh K Pandey reported for Hindu Businessline. And while his passport was cancelled, he was staying in the UK on a valid visa.

While turning down India's request to deport Mallya, the UK had also said that it recognised the "seriousness" of Mallya's offences and that India should instead file for extradition under the 1993 extradition treaty, or under the Mutual Legal Assistance Treaty signed between the two countries in 1992.  

The Extradition process ahead

According to the CBI website, an extradition request can be filed after a chargesheet has been filed before the court, and the court has to seek the presence of the accused to face trial.

The CBI filed its chargesheet against Mallya in January 2017, in the Rs 9,000 crore loan default case on the charges of cheating and criminal conspiracy. He was later declared an absconder. The Economic Directorate is set to file a chargesheet soon. 

 Even though the formal extradition request has been sent, the road ahead is arduous. Article 9 of the 1993 extradition treaty provides several grounds for defense for the person to be extradited. 

If he or she is able to convince the Requested State that the trial may be prejudiced against him or her, and his/her personal liberties curtailed, if the charges are not considered serious enough, if he or she is able to argue that the charges have been made as a pretext for presecuting him or her on the basis of race, religion or political opinions, among other grounds, then the extradition attempt could fail.

 Mallya, who has called his stay in the UK since April 2016 a "forced exile", has denied the charges against him, and has also accused the Indian authorities of conducting a witch hunt against him.

(with IANS inputs)

 

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