MUMBAI: A courtroom exchange in Mumbai has reopened a familiar question in India’s pursuit of high-profile economic offenders: can someone challenge the constitutionality of a law while remaining outside the country’s reach?
A Petition From Abroad
When the Bombay High Court convened this week to hear Vijay Mallya’s challenge to the Fugitive Economic Offenders Act, the issue before the judges extended beyond statutory interpretation. At stake was a more elemental question of jurisdiction: whether a person declared a fugitive can ask a constitutional court for relief while continuing to live overseas.
Mr. Mallya, the former chairman of the now-defunct Kingfisher Airlines, left India in March 2016 as banks and investigative agencies began probing alleged loan defaults running into thousands of crores of rupees. Since then, his legal strategy has unfolded largely from abroad, even as Indian authorities have pressed for his extradition from the United Kingdom.
In Mumbai, senior advocate Amit Desai, appearing for Mr. Mallya, argued that the law does not require physical presence in India to question the validity of a statute. The Fugitive Economic Offenders Act, he said, allows a person to challenge the law itself irrespective of geography. He pointed to the scale of asset seizures already undertaken by enforcement agencies, telling the court that properties worth about ₹14,000 crore had been attached against an alleged liability of roughly ₹6,000 crore
The Court’s Jurisdictional Line
The Division Bench, led by Chief Justice Shree Chandrashekhar and Justice Gautam Ankhad, was unconvinced that the two legal paths Mr. Mallya had chosen could be pursued simultaneously from overseas. Observing that he had filed one petition challenging his 2019 designation as a fugitive economic offender and another questioning the constitutional validity of the Act itself, the judges drew a distinction between the two.
While an appeal against the special court’s declaration might proceed even if the petitioner remained abroad, the bench suggested that a constitutional challenge stood on different footing. “How does one wipe out criminal liability without submitting to the jurisdiction of the court?” the judges asked, underscoring a principle that has animated earlier fugitive cases: relief from Indian courts generally presupposes submission to their authority.
The court directed Mr. Mallya to clarify his position. Either he would withdraw one of the petitions or state, through an affidavit, when he intended to return to India. The matter was adjourned to February 12, leaving his legal options temporarily suspended between two jurisdictions.
The State’s Case and the Extradition Clock
Opposing the plea, Solicitor General Tushar Mehta, representing the Enforcement Directorate, invoked Section 14 of the Fugitive Economic Offenders Act, which bars fugitives from contesting proceedings while evading Indian courts. Allowing such petitions, he argued, would hollow out the statute’s purpose by enabling accused persons to challenge the law without facing trial.
Mr. Mehta also pointed to developments outside India. Extradition proceedings against Mr. Mallya in the United Kingdom, he told the court, were at an advanced stage and should not be delayed by collateral constitutional litigation in India. The government’s position reflects a broader concern among enforcement agencies that parallel legal challenges can be used to slow investigations and recoveries in high-value economic offences.
Enacted in 2018, the Fugitive Economic Offenders Act was designed precisely to address that problem. It empowers authorities to confiscate the properties of individuals accused of economic offences involving ₹100 crore or more if they refuse to return to India to face trial.
A Law Shaped by High-Profile Absences
Mr. Mallya was declared a fugitive economic offender by a Mumbai special court in January 2019, a designation that followed years of public scrutiny over the collapse of Kingfisher Airlines and the unpaid loans extended by a consortium of banks. His case has since become emblematic of India’s struggle to reconcile due process with the practical challenges of cross-border enforcement.
