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Vijay Mallya extradition hearing: CBI’s role lights up arguments
The fourth day of the defence arguments in India’s efforts to extradite Vijay Mallya from the U.K. was marked by intense exchanges over the picture portrayed of the CBI and its director, Rakesh Asthana, as well as the Enforcement Directorate, by a London-based political economist, as the prosecution sought to discredit his interpretation of events including through the reliance of media reports, and the Supreme Court verdict on Mr. Asthana’s appointment. The discussion over Mr. Asthana’s appointment and role took place as he sat in the courtroom, giving yet another dramatic flourish to what has been a complex, and intense hearing, beginning December 4.
Following the December 11 session, where a legal expert sought to link the decision-making process of Supreme Court judges to future appointment prospects, one of the authors of the report wrote to the prosecution rejecting the “defence’s understanding of the paper”.
Lawrence Saez, a professor of the political economy of South Asia at SOAS testified about what he regarded as the politicisation of the controversy around Mr. Mallya by both main political parties and the Shiv Sena. He also highlighted criticisms and concerns expressed in India about the CBI and the way it pursued cases, as well as the appointment of Mr. Asthana, suggesting that his appointment by the Prime Minister was linked to his pursuance of this particular case. While Mr. Mallya’s political ideology was not the reason for the eagerness of the Congress and the BJP to both use the case for political ends, his “prominence” meant that both parties attempted to use the case, blaming each other. The BJP blamed Congress for the initial disbursement of loans, while Congress blamed the BJP for the waiver of loans and allowing Mr. Mallya to leave the country. He also argued that Mr. Mallya did not have “exceptional access” at highest political levels, highlighting his use of formal emails and written correspondence rather than direct phone calls to press his case as matters intensified. Prof. Saez said that ahead of the 2019 elections, the issue of Mr. Mallya would “continue to be used for political purposes”.
On the issue of the CBI and it being susceptible to political interference, Prof. Saez cited a number of studies including a Supreme Court reference to the CBI as a “caged parrot speaking in its masters voice”. This was “unfortunately” a perspective “widely acknowledged to be true”, in India, he said, adding that the CBI’s independence had fallen over the years. He also highlighted research conducted between 1988 and 2009 that looked at the correlation between election cycles and the number of corruption cases registered. He said the evidence pointed to the “politicisation of the allegations brought up in those corruption cases”. He highlighted recent developments in the Rajiv Gandhi assassination case in which a CBI officer testified that evidence from the person who supplied the battery used for the explosive had been deliberately left out, which he said highlighted a “serious breach of protocol”.
Then turning to the appointment of Mr. Asthana, he highlighted an NGO’s challenge to the appointment, which was finally rejected by the Supreme Court, and the decision to “move” R.K. Dutta out of the CBI, following the retirement of his predecessor, paving the way for Mr. Asthana’s appointment, as examples of the political nature of his appointment.
He also pointed to reports that the banks had complained to the Prime Minister’s Office (PMO) over “veiled threats” made to them in order to persuade them to lodge a First Information Report on the case, but that the PMO “refused to intervene”.
In an intense, counter-examination, the prosecution sought to cast doubt on the picture portrayed by Prof. Saez, with prosecution lead Mark Summers questioning his use or “regurgitation” of media reports, including with regard to the objections to Mr. Asthana’s appointment, and the media interpretation of the Central Vigilance Commission’s response to NGO concerns around Mr. Asthana’s appointment. He highlighted the Supreme Court decision which argued that media reports that no decision had been taken by the CVC to be “factually incorrect”.
“Do you regard it as part of the job to verify or investigate whether the press articles you rely upon are correct,” Mr. Summers asked Prof. Saez, arguing it was “dangerous to rely on press reports” for exclusive opinions. Mr. Summers pointed to a separate report by the Ministry of Personnel, Public Grievances and Pensions that described how the CBI had emerged as a “premier investigative agency” that had the “trust”, “credibility” and “legal mandate” of the people of India.
Prof. Saez highlighted his methodology and assessment of what he regarded as credible sources of information. “I do not believe all press reports are fake news,” he said, amid a discussion of one article that had suggested that Mr. Asthana had used coercion to persuade the banks to file a First Information Report against Mr. Mallya. “ I would believe the Indian press would not present evidence of the severity or seriousness of this case with made up information,” he insisted. India had a “free press” he insisted, which respected the British model of “fairness and impartiality”.
“The Indian press in a democracy can be trusted to provide some level of fairness that you’d not find in other countries,” Prof. Saez said, arguing that cases where one media outlet had got things wrong were swiftly highlighted by others, which had not been the case of the Asthana “coercion” story.
At the start of the session on December 12, Mr. Summers brought to the court’s attention what he described as an “unsolicited” email from Shubankar Dam, a professor of Public Law at Portsmouth University, and one of the three co-authors of the report on the Supreme Court’s decision-making process, cited by defence witness Martin Lau on December 11. Rejecting the defence’s interpretation of their findings, he insisted that it had no relevance to the Mallya case, and that they didn’t discuss the Indian legal sector as a whole and to position it as so was to “grossly misunderstand the analysis.” “We believe the Indian legal system is as fair and transparent as any legal system.”
