London: The British government is bracing itself for the outcome of its most unusual intervention in another country’s judicial proceedings.
In a note verbale (diplomatic note) to a Central Bureau of Investigation (CBI) court in Delhi on behalf of Christian Michel, a British arms and aviation consultant, the British High Commission in India on May 10 submitted:
“He (Michel) has suffered from kidney stones and high blood pressure as well as other medical concerns during his detention in Tihar Jail. Mr Michel’s lawyers have reported that his health has continually deteriorated during his time in detention and that he does not have access to adequate medical care nor a suitable diet to support his health. We are also concerned by the possibility of a further deterioration in health if Mr Michel continues to remain in pre-trial detention whilst there is no progress in the case against him. The British High Commission notes that Mr Michel’s age and health concerns place him at a higher risk of contracting communicable diseases such as Covid 19 that has been detected in other inmates in Tihar Jail Number 1 (where he is held).”
It finished by saying:
“The British High Commission respectfully requests that the above matters be taken into account when this bail application is considered.”
On May 13, in an exceptional instance, presiding judge Arvind Kumar is said to have engaged in an interaction with an officer from the British High Commission at a virtual hearing.
Judge Kumar thereafter in a written order stated: “The Jail authority is directed to send the medical record of applicant Christian Michel at the email ID of the Court.” He then indicated he will on May 21 pronounce his verdict on the application for “unconditional bail”. Michel has been in judicial custody in India for two and a half years without a trial.
Michel, 59, was an adviser to AgustaWestland, an outfit in England manufacturing helicopters, controlled by Milan-based Finmeccanica. In 2010, the Ministry of Defence in India concluded a procurement process commenced by the Atal Bihari Vajpayee government to acquire 12 choppers worth 556.2 million euros for VVIP service.
In 2013, Italy accused the chairman of Finmeccanica and chief executive of AgustaWestland of bribery to secure the contract. The alleged intermediaries named in the matter included Michel.
Also read: French Media: Chopper Scam Accused Was Rafale Deal Agent, Received ‘Millions in Commission’
Then Indian defence minister at the time, A.K. Antony, immediately ordered a probe by CBI. This led to the termination of the agreement with AgustaWestland in January 2014. The Indian courts took up an additional complaint by the Enforcement Directorate (ED) later that year.
Meanwhile, the two corporate heads accused in Italy were acquitted by the Court of Busto Arsizio (a local court). Though a Court of Appeal in Milan found them guilty in 2016, this was overturned the same year by the Italian Court of Cassation (Supreme Court). In 2018, the Court of Appeal of Busto Arsizio acquitted the two individuals and finally this judgment was confirmed in 2019 by the Court of Cassation.
One of the judges remarked that the imputation against Michel was “an accusatory hypothesis” and that there was “conclusively no evidence of corruption”.
However, in 2015 in India, Michel was charged, along with two others, with paying bribes in the deal. An arrest warrant was issued against him; and Interpol circulated a Red Notice on this basis. The next year, the ED filed a supplementary allegation, adding Michel had also bribed Indian politicians.
In September 2016, Michel wrote to Prime Minister Narendra Modi offering to answer questions about the case with the proviso that he would not be detained in India against his will. He never received a response.
Michel worked out of Dubai. The United Arab Emirates (UAE) ignored the Red Notice until arresting him in 2017 following an extradition request by India. The request was, however, rejected for lack of “seriousness”.
In November 2020, a five-member United Nations Working Group on Arbitrary Detention (UNWGAD), after hearing a petition by Michel’s lawyers, noted that Indian investigators interrogated Michel in Dubai and wanted him to provide his signature under duress to “statements implicating the Gandhi family (of the Congress party), under threat of further prosecution”.
In January 2018, a deputy director of the CBI – said to be Rakesh Asthana – went to see him. He “allegedly attempted to coerce Mr Michel into signing a 20-page previously drafted statement admitting to involvement in acts of corruption related to the AgustaWestland case and threatened him with prosecution if he refused to sign”, UNWGAD observed, adding: “When he refused to sign the document, which was reportedly factually incorrect, he was told that he would be taken to New Delhi and detained.”
UNWGAD took further cognisance that two weeks later, “he (Michel) was told that, if he signed it (the draft confession), he would be made a witness to the proceedings, all charges against him would be dropped and the Red Notice would be retracted”. But the UAE was yet to accede to India’s extradition request.
However, in March 2018, Princess Latifa, in a daring revolt against restraints imposed by her father Sheikh Mohammed bin Rashid Al Maktoum, the ruler of Dubai and the prime minister of the UAE, escaped in a yacht and headed for India in a bid for asylum. This vessel was intercepted by Indian forces in the Arabian Sea; and Latifa was forcibly returned to her father.
In December 2019 the London high court handed down in a judgment: “The description of the way in which Latifa was treated by the Indian security services and also, once the Arabic man (her father’s agent) had identified her, does not give any indication that this was a ‘rescue’ (her father’s story) rather than a ‘capture’.”
UNWGAD wrote in its opinion published in March 2021: “Mr Michel was told that his extradition had been granted in exchange for the earlier seizure and return of a high-profile detainee (Latifa) to Dubai despite the detainee’s plea for asylum.” It continued: “The detainee was extradited by the Indian forces, which had intercepted her yacht in international waters off the coast of Goa in March 2018, after the Prime Minister of India had made a personal telephone call to the Prime Minister of the United Arab Emirates and ruler of the Emirate of Dubai.”
On December 4, UNWGAD said, Michel, “reportedly handcuffed, blindfolded and transported by private jet”, was brought to Delhi, where he has been behind bars for the past two and a half years.
UNWGAD concluded: “The deprivation of liberty of Christian James Michel by the Government of India, being in contravention of 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.”
The Working Group said that, “taking into account all the circumstances of the case, the appropriate remedy would be for the Government of India to release Mr Michel immediately”.
It in fact flagged the danger to life by saying: “In the current context of the global COVID-19 pandemic and the threat that it poses in places of detention, the Working Group calls upon the Government of India to take urgent action to ensure the immediate release of Mr Michel.”
Also read: UN Body Warns India of Consequences if Christian Michel Is Not Released Immediately
UNWGAD requested the Indian government to report back within six months on action taken; and warned that if it didn’t do so, “the Working Group reserves the right to take its own action in follow-up to the opinion” which would mean informing “the Human Rights Council”.
On April 24, Michel communicated to British Prime Minister Boris Johnson:
“I believe that my life is in danger. I have been surviving inhumane conditions in this prison; these have largely been denounced by the international community. I am also suffering with a renal illness and have had no access to adequate treatments, so I have been particularly at risk during the current health crisis. On top of this physical pain, I am also undergoing psychological trauma due to my permanent isolation and not being able to communicate with my family.”
…My trial keeps being pushed back, and I live in uncertainty.
…My case has been publicised and instrumentalised to the highest level. It is political and I have no recourse, no way out. I am not allowed to freely communicate with my lawyers and so I cannot prepare for my trial in a satisfactory manner. Even if I could, the trial will probably be marred by serious violations of the fundamental principles of a fair trial.
…I don’t want to die here. I need to see my family again. Prime Minister, please don’t abandon me.”
Repeated applications by his Indian lawyer, Aljo Joseph, for Michel’s freedom – right up to the Indian Supreme Court – have been refused. After a 600-hour grilling over a month by the CBI and ED – which has now been referred to the UN Special Rapporteur on Torture – Michel was lodged at Tihar Jail.
On May 3, Modi and his British counterpart Johnson announced upgraded bilateral cooperation, including an Enhanced Trade Partnership, between the two countries.
On the same day in London, external affairs minister S. Jaishankar and the UK’s home secretary Priti Patel initialled a Memorandum of Understanding on migration and mobility. Following this, Patel told the Hindustan Times:
“I have changed that relationship between the UK government and the Indian government in respect of extradition. I understand the seriousness of these cases (referring to Vijay Mallya and Nirav Modi), I can understand the desire as to why India (want them to be deported); you know it’s the same for us – there are individuals in India that we want to be returned and extradited to the UK.” (emphasis added)
Was “returned” a reference to Michel? On the anvil is legislation in the British parliament to render extradition of people wanted in other countries easier. But, perhaps, Michel has to be released first.
Michel’s latest bail plea in the CBI case argued that supplementary complaints against him were “without any incriminating materials except for certain tall claims”. It also highlighted that among the other accused in the matters, “most have never been arrested and in several other cases they are enlarged on bail”.
Advocate Joseph pleaded, since Michel was completely exonerated by the Italian judiciary, “no one shall be prosecuted and punished for the same offence more than once”. He also questioned the CBI court’s “jurisdiction over the offence and the offender”. A copy of the UNWGAD Opinion was annexed with the application.
The CBI responded with the government’s official view, “the (UN)WGAD is not a judicial body, and therefore, its opinions are not legally binding on the Member States”. It recycled its claims against Michel, without any tangible evidence. Even after eight years of examining the matter, its supplication was, “that further investigation in the instant case is at a very crucial stage on certain key aspects”. There was interestingly no mention of the Gandhi family in the CBI’s reply. But it sought a dismissal of the application.
In the past, Judge Kumar has always upheld the CBI and ED’s demands. However, since the last disposal of the matter in 2019, prima facie, two new elements have emerged. One is the UNWGAD view of the case and its instruction to the Indian government. The other is Michel’s state of health, coupled with the danger of exposure to COVID-19 in his vulnerable condition.
It’s hazardous to defy a UN stricture, regardless of this coming from a quasi-judicial body. The last thing India should want is to be named and shamed at the UN Human Rights Council.
After the adverse assessments on India’s democratic credentials under Modi by the US-based Freedom House and Sweden’s V-Dem Institute, it would not be wise to be in contempt of the global rule-based system and in disregard of international treaty commitments.
But a key to Judge Kumar’s adjudication could be the medical report from Tihar. If indeed Michel is physically fragile and COVID-19 has afflicted others in his prison, his continued incarceration could be difficult to justify.
Ashis Ray is a former editor-at-large of CNN. He currently analyses international affairs on BBC.
