Family Asks for Justice for Christian Michel, Held Without Trial for Seven Years

London: The Indian Central Bureau of Investigation (CBI), later joined by the country’s Directorate of Enforcement (ED), has been probing alleged bribery in the Indian government’s 2010 procurement of AgustaWestland VVIP helicopters, made in Britain, since 2013. Yet, both have failed to unearth evidence to proceed meaningfully in the matter.

Christian Michel, a Briton, is among several to be charge-sheeted. He has directly or indirectly been imprisoned by Indian authorities for around six years and 10 months without trial. In February and March this year, the trial court and the Delhi High Court respectively ordered his conditional release on bail pertaining to both CBI and ED accusations against him. These, though, are yet to fulfilled.

Speaking exclusively to The Wire on behalf of Michel’s children, his son Alois said, "It is disheartening that court orders to release our father on bail are taking so long to implement."

He added, "After close to seven years imprisonment without trial, my brother Alaric, sister Alienor and I worry about never seeing our father again. He has not seen his daughter since she was 14 years old. He could not even attend his mother’s funeral. We appeal to authorities concerned for humanity and justice – a family is desperately waiting for him."

Advocate moves Supreme Court

Meanwhile, Aljo Joseph, Michel’s Indian advocate, has moved a special leave petition before the Indian Supreme Court, contending that Indian courts cannot issue orders to a diplomatic mission of a foreign country. The matter is expected to be heard within the next week or so.

Michel’s release is held up because his British passport – which was ordered to be deposited with the trial court – has expired and he pleaded he has no permanent place of residence, as his family home in London was sold during his confinement.

In view of his exceptionally long detention, during which an alleged attempt was made to poison him in Tihar Jail, where he is lodged, Sanjeev Aggarwal, the judge in the trial court, indicated in court last week that he may set him free upon him signing a personal bond, which would only commit him to make himself available for trial.

However, on Thursday, a Delhi high court judge, Justice Swarana Kanta Sharma, put a spanner in the works. She acknowledged "the applicant’s (namely Michel’s) prolonged incarceration" and accepted the "applicant may be released on regular bail, without him depositing his passport immediately."

But the judge decreed, "The British High Commission (in Delhi) … shall ensure that the applicant’s fresh passport, whenever the same is ready, is not handed over to the applicant, but directly deposited with the learned trial court."

Joseph has argued before the apex court that "the Hon’ble High Court erred in directing the British High Commission," which according to his submission is an authority "of a sovereign foreign government’ and does ‘not fall under the jurisdiction of Indian courts." He further pleaded, "No high court in India can issue binding directions to a sovereign foreign body or its representatives, and such directions are legally unenforceable and not binding."

What the law says

In 2018, Michel was detained in Dubai at the Indian Central Bureau of Investigation’s request for 130 days, before being extradited to Delhi on December 4 of the same year, because he had refused to sign a draft confession thrust before him by the CBI, which implicated, among others, Indian opposition Congress party leaders Sonia Gandhi and Rahul Gandhi. He has been in judicial custody since.

Section 436A of the Indian Code of Criminal Procedure (CrPC) provides for the release of a convicted person after he has been behind bars for a period extending up to one-half of the maximum period of imprisonment’, other than in exceptional circumstances. His alleged offence – as presented to Dubai authorities - is under Section 420 of the Indian Penal Code (IPC), which carries a maximum sentence of seven years. Between Dubai and Delhi combined, Michel has been immured for six years and 10 months.

Joseph cited before the Supreme Court that, "Rule 1178A of Delhi Prison Rules (as amended on 23.09.2022), an under-trial prisoner is entitled to 30 days’ remission for every year spent in custody. On this basis, the petitioner is entitled to a remission of at least six months." In effect, he should have been discharged by now.

Challenging another condition imposed by Justice Sharma, that of Michel having to furnish the address where he will reside following his release – verified by the trial court though the ED – Joseph submitted this is "impractical," because "the petitioner has no permanent address in India." He explained, "Being inside jail he cannot arrange any of the requirements and conditions imposed by the high court."

'Bribes'

The choice of AgustaWestland helicopters was approved in 2004 by Brajesh Mishra, principal secretary to BJP prime minister Atal Bihari Vajpayee and also the Indian national security adviser. The succeeding Congress party-led government of prime minister Manmohan Singh concurred and ordered purchase.

In 2013, though, there arose a controversy about bribes having been paid by the Italian company, Finmeccanica, then owners of AgustaWestland, to Indian officials to clinch the deal. Senior executives of the firm were accused, but acquitted by the highest court in Italy. In declaring Michel as not guilty, an Italian judge remarked the allegation against him was no more than a ‘hypothesis’. That was in 2018. The Indian government was party to the process and, arguably, obliged to respect the outcome.

But Congress defence minister, A.K. Antony – who had a reputation for probity – had in 2013 already referred the issue to the CBI. After the Narendra Modi regime came to power, a charge-sheet was filed in 2017 and a supplementary one in 2020. It alleged that a former chief of the Indian Air Force, S.P. Tyagi, was involved in wrongdoing. But he was fairly promptly granted bail.

Michel, on the other hand, received no such consideration. In November 2020, a United Nations Working Group on Arbitrary Detention (WGAD) ruled, "The deprivation of liberty of Christian James Michel by the Government of India, being in contravention of the articles 3, 9, 10 and 11(1) of the Universal Declaration of Human Rights and articles 9(3); 10(1); and 14(10)-(2) and 30(b)-(d) and (g) of the International Covenant on Civil and Political Rights, is arbitrary."

It called for his immediate release and reparation at international rates. India ignored what in UN parlance is diplomatically defined as an 'opinion'.

In 2021, Michel wrote a copious letter from Tihar to British prime minister, Boris Johnson:

"In mid-May (2018) I & my lawyers were called to meet with a delegation of UAE (United Arab Emirates) officials by Colonel Waleed of the Dubai CID & Rakesh Asthana special director CBI India. Over three separate meetings over two weeks in front of & with the UAE officials’ support and blessings & in front of my lawyers, openly without any concern for UAE, international law or my human rights, (Asthana) said that unless I implicate Sonia Gandhi, her son and the senior (Indian) opposition leader Ahmed Patel in corruption, I would be taken to India (renditioned) & out in jail for a long time without bail. They said no one will save you & mentioned some names & said a deal has been done. It was made clear to my lawyers and I that I was to be swapped for Latifa (daughter of the ruler of Dubai, who had been captured and returned to her father by Indian coastguards after she had apparently escaped from his clutches). My lawyers were shocked. If I agreed, I would be made a witness & would not have to go to India."

The letter was ignored by Downing Street.

The British government did not act on WGAD’s opinion, either. Michel then corresponded with one of Johnson’s successors, Rishi Sunak, asking him, "Why is your government playing these dirty little games?" Whitehall’s representations to South Block have only been at the level of junior ministers in the British Foreign Office.

Michel described his government as ‘useless’.

"Not only that. They gave documents (to the CBI)…and discovered they couldn’t do it," he complained.

In 2016, the Serious Fraud Office in the United Kingdom did indeed cooperate with the CBI, but soon realised it was unlawfully exposing Michel to double jeopardy.

'Discrimination'

Thereafter in February 2023, a three-member bench of the Indian Supreme Court, which included the then chief justice, D.Y. Chandrachud, delivered a baffling judgement in denying Michel bail. Citing Article 17 of the Extradition Treaty between India and the UAE, the judges said ‘it is evident that the person to be extradited shall not be tried or punished in the requesting State (namely India) except for the offences for which his extradition is sought or for offences connected therewith’. Michel was prima facie extradited under Section 420 of the IPC. Yet, the judges gave cognisance to a supplementary charge against him under Section 467 of the IPC, which can invite up to a life sentence.

Justice Chandrachud and his fellow judges even quoted Section 21 of the Indian Extradition Act 1962, which states that an extradited person shall not be tried in India for an offence other than "the extradition offence in relation to which he was surrendered or returned" or "the offence in respect of which the foreign State (in this case the UAE) has given its consent" – the UAE is not known to have given any such consent.

As the WGAD’s view reflects, Michel is at best a victim of gross discrimination, at worst a horrendous miscarriage of justice. Nevertheless, he was remarkably cheerful and optimistic in court, even engaging in friendly banter with Judge Aggarwal. Dressed in white khadi kurta and pyjama, bent over a Zimmer frame (for he has recently undergone a hip replacement), he  told the court, "I have no axe to grind, no anger. Whether I am in India or outside India, I am never going to attack India. I have always loved India. I only want to do my duty, clear my name."

In addressing the judge, he confidently stated, "In 10 weeks, there will be no argument left. I will have to be released in law, in Indian law, in international law." This was a reference to the fact that he will by then have completed the maximum sentence for conviction under Section 420 of the IPC, without a trial.

It’s a terrible indictment of the state of the criminal justice system in India.

Ashis Ray can be followed on X @ashiscray.

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