[ This piece was published in The New Indian Express on 20.12.2017, with some minor changes, under the heading BRINGING BACK MALLYA NOT EASY. ]
T he government has pulled out all the stops to extradite Mr. Mallya from the UK but it would be well advised not to put its prestige on the line. It’s unlikely to happen, primarily because of the dismal state of our criminal justice system and our poor human rights track record. The developed world sets great store by both these factors and the past history of our extradition requests clearly show that they are not applauding us for either.
India has extradition treaties with 38 countries and since 2002 only 61 accused have been extradited to this country. Currently, 121 extradition requests are pending with 24 countries. We signed a treaty with the UK in 1993 but till now only one person has actually been extradited, and that too because he consented to it! Ominously for the govt., the latest rejection was in October this year: one Sanjeev Chawla, a UK based bookie, was given the reprieve even though the judge found prima facie evidence against him for match fixing in 2000. The reasons cited for refusing the request were our poor human rights record: abysmal conditions in Tihar jail, overcrowding, lack of medical provisions, risk of being tortured, violence from other inmates and prison staff which, the judge noted, “is endemic in Tihar.” And it’s not only the UK. In February 2016 a Canadian court rejected the extradition of Surjit Badesha and one Mrs. Malik wanted for an honour killing in Punjab in view of the “appalling human rights record of Indian prisons.” And therein lies the rub.
Statistics prove that these judges were right. With more than 450,000 persons in jail( most of whom are undertrials and shouldn’t be there in the first place), our prisons are horribly overcrowded: Tihar has three times the population it was designed for. Corruption and violence are rampant. Quoting NHRC figures, the Asian Centre for Human Rights has revealed that between 2001 and 2010 there were 14231 custodial deaths in India- 1504 in police custody, 12727 in judicial custody. 99.99% of the deaths took place within 48 hours of the person being taken into custody. This is damning enough, but what the international tribunals will find even more inexplicable is the govt’s refusal to do anything about it. India signed UNCAT ( United Nations Convention Against Torture) in 1997 but we have not yet ratified it. We are only one of 7 countries not to have done so, and they are not elevating company: Sudan, Gambia, Comoros, Brunei, Bahamas, Angola. Unlike other countries, we have also failed to enact an anti- torture law: the draft Bill has been pending in the Lok Sabha since 2010. The recent murder of a woman inmate by warders in Arthur Road jail in Mumbai does not help our cause.
We have not improved our credibility with the developed world by failing to adopt or implement the Standard Minimum Rules ( for prisoners), also known as the Nelson Mandela Rules, adopted by the UN unanimously in 2015. This signals a disregard for prisoner welfare and rights.
The British court will also note our pathetic conviction rate- 45%- which will raise doubts about the genuineness of the charges made in most of the cases, including, naturally, Mallya’s. The independence of India’s investigating agencies will come under close scrutiny, with the Supreme Court itself labelling the CBI a “ caged parrot.” Ironically, the CBI is the investigating agency in Mallya’s case! The manner in which only opponents of the ruling regime are being prosecuted will lend credence to Mallya’s defence that he is a “political victim”. The clogged judicial system is another major area of concern: as on October 2017 there were almost 40 million pending cases, of which 1.62 million and 743000 cases had been pending for more than five and ten years, respectively, with the various High Courts. These figures raise serious questions about our judicial system’s ability to provide justice in time. Taken together, all these dysfunctionalities feed into a perception that human rights cannot be assured in the country. Even the 2017 report of Human Rights Watch notes that India “has serious human rights concerns.”
Certain recent events in the Supreme Court will further erode the perceived image of our higher judiciary- charges by senior lawyers against the Chief Justice himself concerning his integrity, inaction on the suicide note of the Arunachal Chief Minister in which he had accused senior judges of bribery, corruption charges against a retired judge of the Odisha High Court. In fact, according to a press report on the 13th. October 2017, Mallya’s lawyers have already seized on this- his defence has already brought to the Magistrate’s notice a research article by a scholar in Portsmouth Law University about corruption in the Supreme Court. It does not help matters that the Court is locked in a bitter battle of attrition with the Central Govt. over appointments and “judicial overreach,” or when its coherence is suspect when it appears to be internally divided, with judges overruling each other on important matters.
There is also the question of whether Mallya’s failure to repay loans justifies criminal prosecution or is a matter for civil action. We do have a propensity to arrest people at the drop of a hat, whether it is for someone’s foot accidentally touching a woman on a plane or a cartoonist lampooning someone in power. All these factors will coalesce into a powerful defence for Mallya, and his lawyers have already started using them. A lot of our dirty linen shall get washed in public but the outcome is still not certain as most of the cards are stacked against India. It is difficult for a civilised society to extradite a man to a country with a dysfunctional legal system, a thoroughly compromised police and a strident media which appears to be the final arbiter of guilt and innocence.