The Bombay High Court on Tuesday delivered a significant order in the long-running legal battle involving businessman Vijay Mallya, the founder of the now-defunct Kingfisher Airlines. The court adjourned the hearing of Mallya's petition, which challenges the constitutional validity of the Fugitive Economic Offenders (FEO) Act, 2018, to February 11. Crucially, the bench directed Mallya to make a clear statement or file an affidavit by that date specifying when he intends to return to India.
The Court's Firm Stand on Jurisdiction
A division bench comprising Chief Justice Shree Chandrashekhar and Justice Gautam Ankhad laid down a fundamental condition. They ruled that a plea challenging the very validity of the FEO Act should not be heard unless the petitioner submits to the jurisdiction of the court. This legal understanding formed the core of their order. The court was hearing arguments from Mallya's senior counsel, Amit Desai, and Solicitor General Tushar Mehta, who appeared for the Enforcement Directorate (ED).
The ED vehemently opposed Mallya's petition, seeking its dismissal. Mehta argued that an economic offender cannot be permitted to question the law specifically designed to tackle fugitives like him while simultaneously refusing to submit to India's judicial process. He emphasized that Section 14 of the FEO Act is intended to prevent such abuse of legal process through petitions filed solely by lawyers.
Clash of Arguments in the Courtroom
Amit Desai, representing Mallya, contended that his client retains the statutory right to be represented and litigate in India even while abroad, especially when challenging the constitutional vires of an Act. "All rights, including constitutional rights, are available even if not in court," Desai argued. However, the Chief Justice responded with a clear opinion, stating, "The vires (constitutional validity) of the Act he cannot challenge, this is our opinion (unless present)."
The court also pointed out a procedural hurdle for Mallya. It asked him to decide which of his two pending petitions he wishes to pursue. One is an appeal from 2019 against a trial court order, and the other is the current petition in the High Court, also from 2019, challenging provisions of the FEO Act. The bench clarified that both cannot coexist.
Allegations of Mockery and Staggering Financial Claims
During the hearing, Solicitor General Tushar Mehta, who joined virtually from Delhi, made sharp remarks about Mallya's conduct. He stated that while extradition proceedings were at an advanced stage in the UK, Mallya was "partying" there. "There are many fugitives, and they are celebrating their birthdays. While nobody can legally object to celebrations, they are mocking our nation. This is unacceptable," Mehta asserted. He also warned that Mallya cannot use the pendency of his Mumbai petition to thwart the ongoing extradition process.
The financial scale of the alleged offence was a major point of contention. The ED, through advocate Prashant Mishra, submitted its reply stating Mallya caused "glaring" economic harm to the nation with an outstanding amount nearing Rs 15,000 crore. Desai countered this figure, stating the liability was alleged to be Rs 6,200 crore "but now shown as Rs 15,000 crore. We have a lot to argue in the matter."
Mallya's petition claims the seizure of his assets under the FEO Act violates his fundamental right to property, arguing it was unfounded. The ED rebutted this by highlighting that Mallya had several opportunities to appear before the trial court. It cited a provision of the FEO Act that allows for the confiscation of property when offences involve over Rs 100 crore and impact the national economy.
With the matter now set for February 11, all eyes will be on whether Vijay Mallya complies with the court's directive to declare his return date, a move that could significantly alter the trajectory of this high-profile economic offences case.
