Conviction under contempt is a blessing for Mallya as his extradition will not be possible.
COURT'S WRONG APPROACH AND CONVICTION UNDER CONTEMPT IS A BLESSING FOR MALLYA AS
HIS EXTRADITION WILL NOT BE POSSIBLE.
under contempt is a blessing for Mallya as his extradition will not be possible
unless intra court appeal is set up by the Supreme court of India and unless it
is clarified by the Govt. of India that the judgment in Prashant bhushan’s case
is no longer good law and the sentence of Mallya will be only as per Contempt
of Court’s Act, 1971 and not as per whims of the Judges of the Supreme Court.
of review petition in contempt in last month 2020 SCC OnLine SC 701 Dr. Vijay Mallya is likely to file
fresh application for refusing his extradition on the ground that in India, as
per recent judgment in Re Prashant Bhushan, the punishment for contempt
before Supreme Court is infinite and may be a death sentence and there is
no appeal provided for it which is violation of Art. 14 of the
International Covenant on human Rights as clarified by the United Nations Human
Rights Committee of 19 judges including Justice P.N. Bhagwati of India in the
case of Hens Serena and Corujo
Rodriguez v. Spain, Comm. 2008 SCC OnLine HRC 20.
Because of wrong
legal position laid down by the Supreme Court in Re: Vijay Kurle’s case’ and Re: Prashant Bhushan case’ the Mallya will get the benefit
till the issues are clarified by the Constitution Bench in the Writ filed
by the Prashant Bhushan and others challenging their convictions. This is
damaging the reputation of India in International community and also in
convicted under contempt by the Supreme Court in the year 2017. His review
petition is dismissed in the case of Dr.
Vijay Mallya Vs. 2020 SCC OnLine SC 701. Now he has
been summoned to argue on sentence. Such order under contempt is appealable as
has been ruled by the Supreme Court of India in Modi Telefibres Ltd. Vs. Sujit Kumar Chaudhary (2005) 7 SCC 40. But the
Supreme court of India have not set up any mechanism for ‘Intra Court appeal’ and therefore his right are ex facie violated.
Mallya will also
point out the arbitrariness of the Supreme Court of India by citing the
examples of unequal treatment given by the Supreme Court in Contempt
jurisdiction by giving the example in the case against Mr. Vilas Athawale
Assistant secretary of Maharashtra State assembly where his personal presence
was insisted despite Covid-19 situtation in Delhi. On the contrary in the case
of Kunal Kamra the co-ordinate bench of the Supreme Court dispensed the
personal presence of alleged contemnor without any reason. This shows that the
Supreme Court in India is not acting as per law but as per their whim and
caprice and therefore there is a great apprehension in his mind that, his fundamental rights are not protected in
India because the protectors are itself the violators.
the Vijay Mallya lost his appeals in the British Supreme Court in
May against his extradition to India the UK may not give the custody of
Vijay Mallya to India.
The question is
also raised on the bonafides of Attorney General for India for not taking
any efforts to get the Prashant Bhushan’s case decided at the earliest.
Supreme Court of
India is also reluctant to hear the writ petition filed by Adv. Prashant
Bhushan and others for setting up the intra court appeal as mandated by supreme
court in Madhav Hoskot’s case(1978) 3
UK court, the judge must be satisfied that if extradition would be
disproportionate or would be incompatible with the requested person’s
The Extradition Treaty also
provides certain exceptions where extradition may be refused where the offence
carries the death penalty in the Requesting State. Since extradition may be
refused on these grounds, they are often incorporated in the defense of
Requested Persons resisting extradition.
Mallya will also take a defence
that his fundamental rights can also be violated by the Supreme Court as done
in the case of other corporate Mr. Subrato Roy Sahara who was sent to jail by
the Indian Supreme Court without any trial and without in accordance with
the procedure prescribed in the statute, which created the offence and
regulated the punishment. This is also violation of Art. 20 of
the constitution. Since In Re: Prashant Bhushan’s case the bench headed
by Justice Arun Mishra’s Bench had taken a view that they will not act as per
Contempt of courts Act, 1971 and can pass any order under Art 129 and if said
proposition is accepted then the misuse of said discretion may go for death
penalty for Mallya as has been observed by the High court in the case
of in Khemchand Agrawal Vs. Commissioner,
Irrigation (2004) 97 CLT 237:2004 SCC OnLine Ori. 119. And therefore,
UK Court will not permit the extradition of Vijay Mallya till the two issues
are resolved by the Constitution bench of the Supreme Court.
In Khemchand Agrawal’s case it is observed as under;
“Now, if this provision prescribing
maximum punishment under the Contempt of Courts Act,
1971 is held to be inapplicable to the power of High Court under Article 215 of
the Constitution to punish for contempt of itself, then a person found guilty
of contempt of High Court can be sentenced to life imprisonment also or to even
death sentence. If the proposition of Calcutta High Court and Karnataka High
Court in this regard is to be accepted then, there is no escape from the
conclusion that High Court can sentence a person found guilty of contempt of
itself to life imprisonment or to death sentence.”
Same ground is
taken by Adv. Prashant Bhushan in his writ petition bearing WP No. 1053 of 2020, demanding
setting up of Intra Court appeal and asking declaration from the Supreme Court
as to the supreme court shall exercise its power under art 129 as per
provisions of contempt of courts Act, 1971 as mandated by Full bench in Pallav Sheth’s  7 SCC 549 case
or will act arbitrarily as said by justice Arun Mishra’s bench.
are framed by the three judge bench headed by justice A. M. Khanwilkar in
the case of Amicus Curiae vs
Prashant Bhushan CP/10/2009 IN W.P. [C] 202/1995, Order dated 13.10.2020. But the said matter is not
listed till date.
Declaration on Human Rights ensures due process and Article 10 thereof
provides that everyone is entitled in full equality to a fair hearing by an
independent and impartial tribunal in the determination of his rights and
obligations and of any criminal charges against him.
Article 11 of
Universal Declaration of Human Rights guarantees everyone charged with a penal
offence all the guarantees necessary for the defence, the same reads as under:
Everyone charged with a penal offence has the right to be presumed innocent
until proved guilty according to law in a public trial at which he has had all
the guarantees necessary for his defence.
(2) No one shall
be held guilty of any penal offence on account of any act or omission which did
not constitute a penal offence, under national or international law, at the
time when it was committed. Nor shall a heavier penalty be imposed than the one
that was applicable at the time the penal offence was committed.
Similar is the
provisions of Art 20 of Constitution of India.
In Shanthiniketan Housing Foundation
2009(6)Kar L J 205, it is ruled that, the
conviction envisaged under Article 20 of the Constitution contemplates the
proceedings before a Court of law, which means an initiation or starting of
proceedings of criminal nature before a Court in accordance with the procedure
prescribed in the statute, which created the offence and regulated the
punishment. Conviction without trial would amount to deprivation of the
personal liberty of a person within the meaning of Article 21 of the
Constitution. Article 21 puts restriction on any State to encroach upon the
personal liberty of a person save in accordance with law and in conformity with
the procedure prescribed in that behalf. Procedure established by law
within the Article 21 is understood to mean the law prescribed by the
legislature at any given point of time, Without prescribing the procedure no
person can be deprived of his personal liberty, which means freedom from
physical restraint of a person by incorporation. As the proviso
to Section 27 did not provide any procedure before a sentence of
imprisonment could be imposed it was struck down as unconstitutional.
Supreme Court in the case
of Vijay Singh vs State Of U.P. (2012) 5 SCC 242, ruled
that in a civilized society governed by rule of law, the punishment not
prescribed under the statutory rules cannot be imposed. Principle enshrined in
Criminal Jurisprudence to this effect is prescribed in legal maxim nulla
poena sine lege which means that a
person should not be made to suffer penalty except for a clear breach of
existing law. A person cannot be tried for an alleged offence unless the
Legislature has made it punishable by law and it falls within the offence as
defined under Sections 40, 41 and 42 of
the Indian Penal Code, 1860, Section 2(n) of
Code of Criminal Procedure 1973, or Section 3(38) of
the General Clauses Act, 1897.
Some judges of
Supreme Court of India are the greatest violators of fundamental rights of the
citizens in India and some judges are acting against Indian Constitutional
mandate of Art. 14 of equality before law as can be seen from recent order
in contempt against Kunal Kamra his personal appearance is
dispensed without any reason on the contrary in the case against the Mr. Vilas
Athawale Assistant secretary of Maharashtra State assembly the personal
presence was insisted and he was compelled to travel from Mumbai to Delhi
despite there being seriously high patients of Covid 19 and risk of life. Even
on 26.11.2020 the CJI asked as to whether he is in Delhi. Due to such arbitrary
exercise of power by the Highest Court of the Country the Britain Court will
not accept the submission of the Indian government that the government
will protect the fundamental rights of Vijay Mallya.
During the extradition
hearing in a UK court, the judge
must be satisfied that if extradition would be disproportionate or would be
incompatible with the requested person’s human rights.
The UK will not extradite an
individual to India unless that individual is accused of an offence that would
be criminal under the laws of the UK as well as India and unless the offence is
serious enough that it attracts a sentence of one year. These are common
requirements - i.e. double criminality and minimum punishment - which are
included in most extradition treaties.
In June, India urged the UK not to
consider any request for asylum by Mallya as there appeared to be no ground for
his persecution in the country.
The Britain’s legal system is
biggest hurdle in the process with several checks and balances in the process
of extradition. India and the UK signed extradition treaty in 1992 and it
became effective in 1993.
At the same time the
unconstitutional and wrong approach of some Judges of Supreme Court of India is
also a major hurdle in extradition of Dr.Vijay Mallya.
Hope that the good
sence will prevail over Supreme Court Judges and Attorney General for India.