Hemant K Batra, FDI & Cross-Border Law Specialist
Photo Source: BigStockPhoto
Vijay Mallya, a glitzy Indian businessman cum politician infamous for his failed frilled Kingfisher Airlines but successful beer & spirits; and wow factored IPL cricket team is fast becoming a beneficiary of international legal co-operation blotches. Mallya allegedly fled the country to escape the clutches of several investigative and enforcement authorities, who had a long list of major and minor offences worked out against him. Predominantly born out of his alleged more than a billion-dollar debt owed to the consortium of nearly two dozen banks in India.
It is important for concerned and interested Indians to understand and perhaps appreciate the most recent action or communication of Interpol in Vijay Mallya’s matter whereby they have returned request of Indian authorities for issuance of a red corner notice (RCN) against Vijay Mallya.
Let us first brush up the background of Mallya matter. The progression has had four major climaxes until now.
Climax 1: The consortium of nearly two dozen banks in India vetoed several options forwarded by Vijay Mallya for repaying their dues. The banks are inclined in having him on the negotiation table in person and revise the amount he is proposing as a first instalment towards clearing his liability.
Climax 2: The Enforcement Directorate a premium and specialist fiscal offences investigating central agency in India is investigating alleged money laundering offences committed by Mallya. As alleged, he recycled part of a loan amounts received from the Indian banks in buying properties abroad. A judicial court in the city of Mumbai has gone to issue an arrest warrant for him regarding this charge.
Climax 3: British authorities rejected the request of the Indian authorities seeking his deportation mainly on the ground that his passport had been revoked. Ironically for India, under the 1971 Immigration Act applicable in England, the UK does not necessitate an individual to hold a valid passport to remain in the UK if they have otherwise valid permission to continue to remain assuming their passport was to be valid in the normal course when entry into the UK was granted. Indian authorities wanted Mallya to be deported, as deportation process is quicker than the course of extradition under the 1993 treaty between India and UK.
Climax 4: Interpol returns request of Indian authorities for a red corner notice (RCN) against Vijay Mallya with queries. There are speculations that Interpol has raised doubts on the request lacking enough material and information to issue a RCN against the subject. It is also believed though with no official confirmation that Interpol feels that RCN cannot be issued as there are no pending extradition proceedings or criminal trial against Mallya. Interpol also appears to be inclined in hearing from Mallya’s side before concluding on the notice keeping in view that the matter pertains to financial wrongdoings.
The rejection by the British at the first instance had a legal sanction and proper thought behind it. They declined the faster process route but expressed their accommodation if the Indian authorities sought assistance under mutual legal assistance or extradition route. Apparently, Indians must already be exploring sending an extradition request to UK.
Likewise, even Interpol is and was within its legal rights in returning the Indian request for issuing RCN against Mallya.
I have handled some really complicated international legal matters relating to Interpol in my past two and a half decade of cross-border law practice. My take on the Interpol headway is as follows, which path I am sure Mallya’s lawyers would have taken in his case.
The Red Corner Notice of Interpol pursues the interim arrest or detention of a fugitive so that the said individual could be extradited to the requesting country. Ironically, Interpol RCN isn’t considered any obligatory or binding directive on the member countries. Actually, there aren’t many Interpol member countries who consider RCN to be a binding request for conditional detention of the so called fugitive. It is just a matter of moral binding at the end. After all each Interpol member nation is sovereign in its own right with a unique system of law and judicial precedents. In Mallya’s case, even if RCN is eventually issued, the country where he may be located at that point in time will like to be sure beyond doubt about the proof that the alleged offense committed by him in India also constitutes a legal breach as per laws of their country.
But even today, the most common system of extradition is by treaty between two countries because treaties do contain qualifying offences or the parameters thereof.
Even before the Indian authorities had sent in request to the Interpol for issuance of RCN against Mallya, I assume that Mallya’s lawyers would already have had a forewarning communication and representation with Interpol or in other words a peremptory process. It is expected that Indian request for RCN was in compliance with Interpol’s Constitution and international law.
Mallya’s lawyers can challenge the Indian request at the Interpol level itself meaning pre RCN stage. The lawyers can even challenge the issuance of RCN itself, if it is so issued despite their opposition at pre RCN stage.
As per Interpol itself, RCN will not be published if it violates Article 3 of its constitution, which forbids the organization from undertaking any intervention or activities of a political, military, religious or racial character. Notices are processed pursuant to Interpol’s Rules on the Processing of Data, which ensure the legality and quality of information, and the protection of personal data. In order to ensure that RCN or for that matter any other Interpol notices are not based on erroneous info or any factual or legal premise or offences that do not meet Interpol’s requirements, or are not triggered due to bias of the requesting state, Interpol stipulates that – the penalty for the causal offense must be at least imprisonment for one year; the accusing certification has not been sealed; and the authorized prosecuting agency in the initiating country has committed to extradite; has concluded, executed and forwarded the agreement to extradite to the Interpol.
The application and supporting documents as forwarded to Interpol’s General Secretariat in Lyon, France are thoroughly examined to confirm that it meets all the legal requirements prior to publication of a RCN. This process may take few months to complete. In the instant matter Mallya and/or his lawyers will be given an opportunity to present their set of contentions.
In the event, Mallya’s lawyers were opposing the Indian request, I am sure Interpol’s Office of Legal Affairs would also have got involved in the evaluation process. The Interpol’s Legal Team will be under obligation more so in a contested matter to meet not only the international legal requirements but also Interpol’s Constitution and its fundamental rules. Accordingly, Interpol wrote to Indian authorities about their concerns perhaps of routine or substantive nature. Interpol would be within its absolute legal rights to even eventually reject the Indian request in Mallya’s case if it reaches a conclusion that the RCN publication would breach Interpol’s rules or Constitutional mandate.
As the international law has evolved over past many decades, Interpol has become very cautious and conscious in discharge of its functions and privileges. It doesn’t want its actions to be seen as not in tune with the Universal Declaration of Human Rights, neutrality of political, military, religious or racial character; and more fundamentally the international conventions and applicable laws, rules and regulations.
Even in those cases where RCN has been published despite being questioned or not challenged by an affected party, the General Secretariat of Interpol still has the authority to take corrective measures.
There are a diverse legal and procedural options available to an aggrieved to overthrow a Red Corner Notice.
Hence, Interpol reserves a right to decline issuing RCN or even revoke if it’s already issued and published.