Cannot Specify Date For Return To India, Says Vijay Mallya — Bombay High Court Raises Questions

Jurisdiction, Presence And The Fugitive Litigant

An Editorial Analysis On Vijay Mallya’s Statement Before The Bombay High Court

“Cannot specify date for return to India; English courts have barred me from leaving England.”
— Submission attributed to Vijay Mallya before the Bombay High Court

The latest proceedings before the Bombay High Court in the Vijay Mallya litigation may appear procedural at first glance. A litigant claims inability to travel due to foreign court restrictions. The court asks for an affidavit. Hearing adjourned.

Yet beneath this seemingly routine exchange lies a profound constitutional question:

Can A Fugitive Economic Offender Invoke The Protection Of Indian Constitutional Courts While Refusing — Or Failing — To Submit To Their Jurisdiction?

This question sits at the intersection of constitutional remedies, criminal accountability, international comity, and the doctrine of equity. The Mallya matter is gradually transforming from an individual dispute into a jurisprudential test case on the limits of transnational litigation rights.

The Legal Background

Vijay Mallya left India in March 2016 amid investigations relating to massive loan defaults. Subsequently:

• Criminal proceedings were initiated
• Extradition proceedings commenced in the UK
• He was declared a Fugitive Economic Offender (FEO) under the Fugitive Economic Offenders Act, 2018
• He approached Indian courts challenging the consequences of that declaration

The current controversy arises because he seeks relief from Indian courts while stating that he cannot physically return due to restrictions imposed by courts in England.

The Bombay High Court therefore confronts a threshold issue — maintainability.

• Not guilt.
• Not extradition.
• But access to justice itself.

The Central Legal Principle: He Who Seeks Equity Must Do Equity

Indian constitutional jurisprudence has consistently held that discretionary relief — particularly writ jurisdiction — is not a matter of right but of equity.

The Supreme Court in State of Maharashtra v. Prabhu (1994) 2 SCC 481 held:

A writ court may refuse relief where the conduct of the petitioner disentitles him to equitable consideration.

Similarly, in Prestige Lights Ltd. v. SBI (2007) 8 SCC 449, the Court laid down a now-classical principle:

A litigant who approaches the writ court must come with clean hands and must not suppress material facts or evade legal obligations.

The doctrine extends further in cases involving absconding accused persons.

The “Fugitive Disentitlement Doctrine” In Indian Law

Though originating in Anglo-American jurisprudence, Indian courts have adopted a parallel approach:

A person avoiding criminal process cannot simultaneously seek judicial protection.

Supreme Court Precedents

1. Swaran Singh v. State of Punjab (2000) 5 SCC 668

The Court refused relief to an accused who had absconded:

Courts cannot encourage litigants who flout the process of law and yet claim discretionary relief.

2. State of Madhya Pradesh v. Pradeep Sharma (2014) 2 SCC 171

The Supreme Court explicitly held:

An absconder is not entitled to relief under Article 226. A person who evades law cannot invoke equity.

This judgment is extremely relevant to the Mallya controversy. The principle is clear — presence is a precondition to protection.

3. Lavesh v. State (NCT of Delhi) (2012) 8 SCC 730

The Court rejected anticipatory bail for a proclaimed offender:

When a person is declared absconder, he is not entitled to discretionary relief.

Though relating to bail, the constitutional reasoning is identical — judicial discretion is incompatible with evasion of jurisdiction.

The Fugitive Economic Offenders Act, 2018 — Legislative Codification Of The Principle

The FEO Act represents Parliament’s direct response to economic offenders remaining abroad while litigating domestically.

Its underlying philosophy:

A person cannot retain civil rights over property while avoiding criminal accountability.

The Act permits confiscation of property and restricts civil claims by fugitives. The legislative intent mirrors the equitable doctrine already evolved by courts.

Thus, the High Court’s concern is not merely procedural — it is statutory.

The Argument Of Foreign Legal Restraint

Mallya’s submission introduces a new complication:

He claims he cannot return because English courts have barred him from leaving the UK.

This raises a delicate issue of international comity.

Should An Indian Constitutional Court:

• accommodate foreign judicial restrictions, or
• insist upon submission to domestic jurisdiction?

Indian precedent suggests the latter.

Jurisdiction Is Territorial — Rights Are Conditional

In Harshad S. Mehta v. Custodian (1998) 5 SCC 1, the Supreme Court emphasized that economic offenders cannot exploit procedural rights to frustrate legal accountability.

Likewise, in Bachan Singh v. State of Punjab (1980) 2 SCC 684, though a death penalty case, the Court articulated a broader constitutional philosophy:

Procedure must be fair, but fairness applies equally to society.

Applied here — fairness to banks, depositors, and public institutions demands participation in the judicial process.

Can One Litigate From Abroad?

Indian courts have allowed representation through counsel in civil matters. But criminal accountability changes the equation.

The Key Distinction

The Mallya litigation straddles both domains — a civil challenge to consequences arising from criminal conduct.

Hence the High Court’s hesitation.

The Constitutional Dimension: Article 14 vs Article 21

Mallya’s challenge indirectly invokes Article 14 (equality) and Article 21 (fair procedure).

But courts have repeatedly held:

• Fundamental rights are not a shield for evasion of law.

In Union of India v. W.N. Chadha (1993 Supp (4) SCC 260), the Supreme Court held that an accused cannot demand procedural participation at every stage if doing so obstructs investigation or justice.

Therefore, constitutional remedies remain available — but not unconditionally.

The Real Question Before The Bombay High Court

The court is not deciding extradition.

It is deciding a principle of constitutional governance:

Can a litigant remain beyond coercive jurisdiction yet within protective jurisdiction?

If answered in the affirmative, it would create a precedent where economic offenders could:

• Stay abroad
• Challenge confiscation
• Delay proceedings
• Retain litigation advantage

Such an outcome would defeat the very object of the FEO Act.

Comparative Perspective: Anglo-American Doctrine

In the United States, courts follow the Fugitive Disentitlement Doctrine, affirmed in Molinaro v. New Jersey, 396 U.S. 365 (1970):

A fugitive from justice disentitles himself from calling upon the court’s resources.

Indian jurisprudence, though independently evolved, reflects the same reasoning — law cannot be invoked selectively.

Possible Judicial Outcomes

The Bombay High Court may adopt one of three approaches:

Given existing Supreme Court rulings, the first outcome aligns most closely with established law.

Conclusion: The Emerging Principle

The Mallya proceedings highlight a new age legal conflict — global mobility versus territorial accountability.

Courts must adapt to international finance without diluting sovereign authority. The likely jurisprudential message emerging from this litigation is:

• Rights travel across borders.
• Jurisdiction does not.

If Indian courts allow relief without submission, the FEO Act weakens.

If they refuse hearing, constitutional discipline strengthens.

The Bombay High Court therefore stands at a constitutional crossroads — not deciding a businessman’s plea, but defining the future relationship between fugitive offenders and Indian justice.

And the law, historically, has answered consistently:

Justice cannot be claimed from a distance while accountability is avoided up close.