Mallya may face biased SC, trial by media in India: defence witness
12 December 2017
A law expert appearing on behalf of beleaguered businessman Vijay Mallya on Monday cast doubts on the Indian Supreme Court's handling of the case, alleging that it gave preferential treatment to banks and was also swayed by ''media trials''.
Martin Lau, professor of law at the School of Oriental and African Studies, deposed on Mallya's behalf on the fourth day of his extradition case at the Westminster Magistrates Court, claiming that the Supreme Court had shown ''unusual speed'' in dealing with Mallya's case. He went on to say that the former liquor baron would not get a fair trial if extradited to India.
Mallya's counsel Clare Montgomery asked Lau for his views on the way the allegations of fraud against the promoter of the failed Kingfisher Airlines have been dealt with.
''There is an increasing concern in India about media trials, which is connected with a change in the landscape in India where TV channels use panel discussions and such like Ö there is an emergence powerful TV commentators,'' said Lau, an expert on South Asian law.
He referred to the Delhi High Court setting up a committee to look into ''trial by media'', where adverse media coverage might affect aspects of a trial and provide the police an incentive to achieve ''overnight fame''.
''It is evident from the TV cameras outside this court that there is intense interest in India in this case,'' Lau said, adding that it raised concerns about the ''fairness of a trial'' in India.
Crown Prosecution Service barrister Mark Summers, who appeared on India's behalf, said the issue before the court was not to decide on trial issues but whether there was a prima facie case that Mallya has to answer in India. The defence says the prosecution has ''zero'' evidence against him.
Summers asserted that India has a ''free and animated press'' that was understandably interested in this case, which involves ''substantial state funds'' going missing.
Lau said courts in India tend to be influenced by media trials. When asked by Summers if the legal chronology of Mallya's cases in India supports his contention on the Supreme Court, Lau said, ''(By) giving banks preferential treatment, it has allowed doubts to be cast on judicial independence.''
The professor of law said the Supreme Court's decisions reflect a pattern where judges, especially those nearing retirement, rule in favour of the government to secure post-retirement jobs and postings in the administration.
''I have the highest respect for the Supreme Court, but it is not disrespectful to voice doubts about some of its aspects. It is not a corrupt institution (but) it is heavily burdened,'' Lau said, agreeing with Mallya's lawyer Clare Montgomery on various legal aspects related to him.
Lau however agreed with Summers that Mallya could raise the issue of trial by media during his trial in India.
According to Lau, India's case that Mallya made misrepresentations to IDBI Bank while securing loans, failed to honour obligations, and used loan funds for unintended purposes does not amount to cheating. Wilful default is not an offence in Indian law, he claimed.
Montgomery cited the rapid pace at which Mallya's case progressed from the Karnataka High Court to the Supreme Court, despite the apex court having a large number of cases on its plate.
She also referred to another study that found several allegedly undesirable aspects – including fabrication and planting of evidence, torture, death penalty, and abuse of the legal process in India – to support the defence's claim that Mallya may not get a fair trial if extradited.
Besides this, Montgomery cited a press report to allege that Central Bureau of Investigation special director Rakesh Asthana threatened bank officials in the Mallya case. Lau agreed with her that a statement under Section 161 of the Criminal Procedure Code cannot be used to secure a conviction in court.
Margaret Sweeney, chief financial officer of the Force India F1 team, which Mallya continues to own, deposed to say that all transactions with Kingfisher Airlines were audited and made under existing contracts. She denied India's allegation that some of the payments made since 2008 were shrouded in secrecy.
Academic Lawrence Saez will speak on Indian politics when he deposes on Mallya's behalf today.