At some moments in the extradition hearing of Vijay Mallya — which took place over six sessions in December and is set to conclude with a hearing on the admissibility of certain evidence in January — one might be forgiven for thinking it was a case about something else entirely. Over the course of those hearings, the Indian legal, political, financial and prison systems came under intense scrutiny, as the defence sought to bolster its attack on the prima facie case of fraud, with suggestions that political motivations were at work in its pursuance, and a particularly grim portrayal of India’s prison system and its willingness to be subject to external scrutiny.
First to come under attack were the public-sector banks that lent to Mallya and subsequently pursued the return of funds. Challenging the prosecution’s argument that misrepresentations had been made to the banks in the loan applications — including through the valuation of the brand (the prosecution argued that a second lower valuation had been not disclosed to the banks), and the negative lien on 12 aircrafts as security (the lease on the aircrafts did not expire during the period of the five-year loan) — the defence attempted to highlight how such details would have been readily available to the banks over the course of their decision making process.
The defence, led by barrister Clare Montgomery, sought to question the decision by the consortium of banks in March and April 2016 to reject Mallya’s offer to repay up to 80 per cent of the ₹5,000 crore of liabilities. “They tend to be more susceptible to political pressures,” defence banking expert Paul Rex told the court, highlighting how with a loan in default for many years a bank was likely to have made provisions in terms of write downs and was therefore likely to welcome such an offer to minimise losses.
The prosecution challenged this portrayal, suggesting it was their scepticism about “dishonest” Mallya’s claims that he couldn’t repay the full loan (barrister Mark Summers pointed to a lavish £2-million party hosted during this period) that prompted this assessment.
A legal enquiry
Perhaps, the most headline-grabbing instance, however, was the intense session on India’s legal system, which drew on evidence from Martin Lau, an expert on South Asian law, who raised questions around the speed with which proceedings against Mallya proceeded to the normally heavily burdened Supreme Court, suggesting that other motivations may have been at work. He pointed to a recent study ‘Jobs for Justice: Corruption in the Supreme Court of India’ by Madhav Aney, Shubhankar Dam and Giovanni Ko, which concluded that judges responded to “pandering incentives by ruling in favour of the government... more over judges who have authored favourable judgements in important cases are more likely to receive prestigious government jobs.”
While, in the wake of the media outcry that followed the hearing, one of the authors wrote in to the prosecution to question the findings’ applicability to the Mallya hearing, the revelations threw light on an issue already under scrutiny domestically. “The findings we report are important because this kind of corruption suggests the possibility of a serious miscarriage of justice with far reaching welfare implications,” the report noted.
“Separation of powers, foundation to modern democratic institutions, is not as clear in practice as it is in theory... our analysis suggests that the prospect of being appointed to government positions after retirement could be a way in which the executive exercises control over an otherwise independent judiciary, in countries with judicial term limits,” the academics wrote.
Caged parrots?
Then it was the CBI and the Enforcement Directorate which came in for stinging attack from defence witness Lawrence Saez, who highlighted domestic concerns in India around the impartiality of the CBI, including the Supreme Court’s own words in 2013 — on the probe into coal block allocations — that the investigative body was a “caged parrot” that spoke in its “masters voice”. Saez also highlighted a study by Heidelberg University’s Krishna Chaitanya Vadlamannati, which found that in cases across 30 Indian States between 1988 and 2009, data suggested that “scheduled elections are associated with an increase in the number of corruption cases registered by anti-corruption agencies,” and that politicians engaged in “cheap talk on controlling corruption, especially during the election periods”.
While the prosecution sought to challenge the scenario built by Saez (including highlighting his reliance on media reports to build arguments), it was for his perspective on the appointment of Rakesh Asthana that it reserved its most vigorous cross examination. It sought to question Saez’s failure to bring the court’s attention to the SC judgement on the charity Common Causes’ challenge to Asthana’s appointment. The judgement makes indirect reference to Saez, referring to a newspaper report which previewed some of his evidence relating to the Central Vigilance Commission and the process leading up to its clearing of Asthana’s appointment as special director. “The statement of the professor... appears to be based on the newspaper reports which have been found to be factually incorrect, and therefore, it has no substance,” the SC wrote.
Prison conditions
However, the most dramatic day was still to follow, as Alan Mitchell, a Scottish prison expert, who presented details of a conversation he had with an anonymous member of the Chennai 6 — a British man who was one of the six Britons arrested by the Indian Coast Guard in 2013, along with other foreign and Indian nationals, and held in Puzhal Central Prison.
It was not just the picture of conditions portrayed (snakes, poor sanitary conditions, meagre meals, the use of violence on prisoners, and limited access to medical treatment even for serious conditions such as cancer) but Mitchell’s criticism of the lack of willingness to engage with external inspection bodies that was particularly striking. “Visits are important... because it allows an independent expert to see for themselves what the conditions of detention are but also engage with prison authorities and dialogue to get a fuller understanding of how the regime operates within that particular prison,” he told the court. Casting doubt on assurances offered to courts abroad, the defence also highlighted the extradition proceedings against 1993 bomb blast accused Abu Salem, and how contrary to assurances given by the Indian government that his sentence could be no longer than 25 years, he was given a life sentence.
How all these arguments play out in the judge’s assessment in the extradition hearing remains to be seen: the response of many commentators in India has been one of indignation, as though the use of analysis of the political, and legal system in the defence case is somehow an attack on India.
Perhaps a more useful response would be to recognise their airing in such a prominent place as the hearing, should give pause for thought. Setting aside the issue of whether or not they could contribute to preventing the extradition India so desires, the concerns raised, such as over the condition of prisons, should prompt concern, and a desire for further debate and further investigation, not umbrage.
(The article first appeared in The Hindu BusinessLine.)