A 35-page letter written by the Agusta scam ‘middleman’ to Boris Johnson could throw a wrench in Mallya’s extradition and comes even as a UN Working Group is expected to issue a ruling on Michel’s complaint.
Ashis Ray
February 8, 2021, The Wire
A 35-page letter written by VVIP chopper scam accused Christian Michel to UK Prime Minister Boris Johnson about his alleged mistreatment in Tihar Jail could prove to be embarrassing for the Narendra Modi government and potentially also affect the extradition of fugitive businessman Vijay Mallya to India.
Michel, 56, is charged for his alleged role as a middleman in the AgustaWestland VVIP helicopter deal.
He has been in Tihar Jail for 25 months and claims he was snatched illegally from Dubai in an “unlawful handover to the Indian authorities by the UAE as part of a quid pro quo for the return of (the daughter of Dubai’s ruler and the UAE Prime Minister Sheikh Mohammed bin Rashid Al Maktoum) Sheikha Latifa (by Indian coastguards)”.
In his letter, Michel says he is being detained (in Tihar) “in conditions that can only be described (as being) in flagrant breach of the fundamental guarantees under national and international law and breaches minimum standards for prisoners”.
Asked to comment on the letter, the British Foreign Office said: “The Foreign Secretary (Dominic Raab) raised it (the matter of Michel’s incarceration) with India’s Minister of External Affairs, Dr S. Jaishankar, during his visit to India in December 2020.”
Michel’s description of his experience in Indian prison, if accurate, could possibly deter Britain’s consideration of the Indian government’s request to extradite Mallya, owner of the now defunct Kingfisher Airlines, to face justice in India.
Mallya’s extradition is awaiting a ruling by the UK’s home secretary Priti Patel, following the London high court rejecting the businessman’s appeal against deportation. There has, though, been a perplexing delay in Patel’s ratification since the court order was passed last April. It is widely reported – though not officially acknowledged in so many words – that Mallya has applied for asylum in Britain and this entreaty is being addressed at present.
UN group support?
Meanwhile, London lawyers Guernica 37 International Justice Chambers recently confirmed what was reported in December by the UK’s Mail on Sunday about a petition of complaint that Michel had filed with the United Nations Working Group on Arbitrary Detention (UNWGAD) and the UN Special Rapporteur on Torture on the matter.
“We fully expect the UN Working Group to rule that Christian is being arbitrarily detained and recommend his immediate release,” the law firm said, adding: “That ruling is imminent.”
A source at UNWGAD said: “Check in a week.”
Controversial chopper deal
In 2010, Prime Minister Manmohan Singh’s government ordered the Italian company Finmeccanica’s British-made AgustaWestland VVIP helicopters pursuant to an observation in November 2003 by the late Brajesh Mishra, principal secretary to Prime Minister Atal Bihari Vajpayee, which said the “altitude requirement is unrealistic and has effectively led to a single vendor situation”. The contract was worth £500 million and the relaxation of the height requirement brought several helicopter vendors into the fray, the government said at the time.
The Narendra Modi government has alleged Michel had paid bribes to the Gandhi family of the Congress party to obtain the order. Guernica, who are acting on Michel’s behalf, maintained: “This unsupported allegation has been rejected twice by the Italian courts, due to the complete absence of evidence as to Christian’s involvement in any fraudulent activity.” One of the judges in Italy remarked the charge against Michel was “an accusatory hypothesis” and that there is “conclusively no evidence of corruption”.
Michel, a consultant in the armaments and aviation business, ran his operations out of Dubai. At the Modi dispensation’s request, Interpol issued a Red Notice in his name in 2015. He was consequently arrested in the UAE, but released on bail by providing a surety of £200,000 and debarred from departing the Emirates.
Guernica contended: “It is important to emphasise that the first request for Christian’s extradition from the UAE to India failed due to lack of evidence and the Indian authorities’ inability to substantiate the allegations.” It further pointed out that New Delhi renewed the extradition procedure after Latifa was returned to her father with Indian help; and also significantly, two days after Michel had refused to sign a confession presented to him by the Indian Central Bureau of Investigation (CBI).
The 19-page petition on behalf of Michel submitted to UNWGAD said Rakesh Asthana of the CBI met him in January 2018. It then said: “Mr Asthana produced a 20-page confession that he wanted the petitioner to sign this written confession incriminating him in the alleged corruption concerning the sale of AgustaWestland helicopters sold to the Government of India in 2010.”
Dubai princess case
In November 2019, litigation arose in the Family Division of London’s High Court between Maktoum and his sixth wife Princess Haya bint Al Hussein, half-sister of the present ruler of Jordan King Abdullah II, for the custody of their two children after cracks had appeared in the marriage. The fact-finding process focussed on two of the Sheikh’s older children, Sheikha Shamsa and Latifa.
Haya, Latifa’s stepmother, deposed to the court: “Latifa was forcibly returned to Dubai from international waters on 4 March 2018. That forcible return involved armed Indian coastguard forces boarding and commandeering the boat upon which Latifa was travelling in international waters, 20 nautical miles off the coast of India.”
In December 2019, Justice Sir Andrew McFarlane, president of the Family Division, handed down in his judgement: “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’.
From UAE to India
When the second extradition process was initiated after Latifa was returned by India to her father, Michel was once more summoned to meet with CBI officials.
This time, the petition to UNWGAD outlined, “he was asked to sign a forged budget sheet stating he had paid (the late Congress leader) Ahmed Patel and the Gandhi family. The petitioner states that he was told if he did this he would be made a witness to the proceedings and that all charges against him would be dropped, as well as the Red Notice being removed. However, he was threatened that if he did not cooperate he would be taken to India and detained in jail there.”
At the Dubai court in October 2018, Michel’s lawyer Abdulmunem Bin Suwaidan noted, the request should have come from the Indian home ministry, but had instead been presented by its ministry of external affairs; that inadequate and invalid evidence was submitted by Indian authorities; that the 2015 Interpol move for an arrest had said money to bribe Indian politicians had been paid by Finmeccanica to Michel “and his company Global Services – Dubai Free Zone Authority”, thereby meaning the crime had allegedly been committed by an UAE-based company and so he had to be prosecuted in the UAE; that the Indian pursuit of Michel was of a political nature (which according to the Indo-UAE treaty disqualifies an extradition demand); the request violated law governing double jeopardy, since a higher Italian court dismissed accusations against Michel; and Italy did not surrender Michel to India.
But these arguments appeared to not be convincing enough for the Dubai judge.
On December 4, 2018, Michel, the petition detailed, “was handcuffed, blindfolded and transported by a private jet” from Dubai to Delhi. “The process,” the application asserted, “was more akin to rendition as there was little recourse to a legal process.”
It went on to allege: “It is submitted that in the case of the petitioner, the treatment he has endured once extradited to India clearly amounts to torture.”
Michel was grilled by the CBI for 15 days after his arrival, with “the first night of interrogation lasting until 4:00am”. The petition also added that he was “threatened throughout that if he did not cooperate, he would be beaten and made to stand up all night”. It further alleged: “Every day following this the petitioner was interrogated for no less than 21 hours and in the very brief periods of time that he was able to sleep the guards proceeded to switch the lights on and off repeating the same statement over and over ‘Tell us you paid AP and the Gandhi family’.”
After 15 days, Michel was handed over to the Enforcement Directorate (ED) of the Union Finance Ministry “where the same treatment continued”. Apparently failing to make progress, Naresh Malik of the ED emailed Michel’s Italian lawyer Rosemary Patrizi on January 14, 2019 seeking evidence against her client. This seemed to indicate the Indian agencies did not possess sufficient proof of his guilt prior to extraditing Michel from Dubai – a prerequisite for deportation, Patrizi claimed.
After being “interrogated for 600 hours over a 30-day period”,Michel was sent to Tihar, where he was put in an isolation cell reserved for dangerous criminals before a judge felt this was too extreme.
The submission also asserted the Modi government had violated the International Covenant on Civil and Political Rights, which India acceded to in 1979. India is yet to ratify the Convention against Torture, which it signed in 1997. But Michel’s lawyers argued: “Under Article 18 of the Vienna Convention on the Law of Treaties, India is under an obligation not to defeat the object and purpose of a treaty prior to its entry into force.” A parallel plea on almost identical lines was made by a French human rights advocate Jessica Finelle of Paris-based firm Zimeray and Finelle.
UNWGAD is a highly confidential process. But on receiving the complaint, the body wrote to the Indian and UAE governments on May 8, 2020, on what it called “deprivation of liberty of Mr Christian Michel”. The UAE has not replied. On June 26, 2020 India’s Permanent Mission to the UN in Geneva responded: “It is not correct to say that no due process was followed in extradition of Mr Michel.”
Michel’s Indian advocate Aljo Joseph told this writer, “He’s lost a lot of weight since being taken into custody, he didn’t have use of a proper toilet to start with and finds it difficult to eat the indifferent food offered to him.”
In a letter dated September 20 last from Tihar, Michel informed a prominent BBC broadcaster: “I am lodged in ward no 6 …..All of us [here] have one thing in common. We are all being pressurized to make a deal in exchange for our freedom.” He continued: “Each of the so called pillars of democracy (in India) have been ideologically politicized to a point of buffoonery.”
In the same communication he claimed he had previously corresponded with Home Secretary Patel, expressing outrage. “At the time,” he wrote, “I was incensed that the UK was still extraditing people to the failed state of India.” Barrister Toby Cadman, a co-founder of Guernica, attested: “Yes that looks like his (Michel’s) handwriting.” Patel was requested to comment on the claim. She neither confirmed nor denied receiving the letters.
Mallya case
The buck stops with Patel on the issue of Mallya’s extradition to India. Under rules of procedure in Britain, once a court orders deportation and this is not challenged at a higher court (in this case the UK’s Supreme Court), the country’s home secretary has to sign off or otherwise on implementation.
Her predecessor, Sajid Javid, did so after the magistrates’ court’s decision; but this was nullified by Mallya appealing to the London High Court.
Patel’s sense of judgment, though, has been called into question, following an inquiry last year which found evidence she had broken the ministerial code. Johnson ignored the finding. His independent adviser on ministerial standards Sir Alex Allan resigned as a result.
The Indian government has put relentless pressure on its British counterpart on Mallya’s extradition. The magistrates’ court’s judgement was not delivered until December 2018 and the London High Court did not reject Mallya’s appeal until April 2020. Yet, in March 2017, the late Indian Finance Minister Arun Jaitley raised the subject with Chancellor of the Exchequer Philip Hammond when they met in London. Notably, the then Prime Minister Theresa May broke protocol to join this meeting. Then in April 2018, Modi brought it up again with May.
This writer understands that the only British cabinet minister the Indian High Commissioner Ruchi Ghanashyam met during her term from November 2018 to April 2020 was Patel. Additional indirect persuasion on the latter, who as home secretary is a key arbiter on the matter of extraditing Mallya, has reportedly come from a section of Gujarati-extraction Britons, who are linked to UK-based front organisations of the Rashtriya Swayamsevak Sangh (RSS). This includes the Hindu Swayamsevak Sangh (HSS) – who were once warned by the UK’s Charity Commission for preaching hatred of Muslims to Hindu children – and Overseas Friends of BJP. They have pressurised British MPs with large Gujarati constituents and peers, who are beholden to them for making it to the House of Lords.
When foreign secretary Harsh Shringla visited London in November, he, too, called on Patel in what can only be described as a slightly unusual meeting for a senior Indian diplomat, who normally restrict his or her engagements to counterparts at the foreign office or mandarins at Downing Street.
Tamal Bandyopadhyay’s recently published book Pandemonium: The Great Indian Banking Tragedy has also exposed facts unknown to British courts when they considered the Indian government’s application for Mallya’s extradition. On the Kingfisher Airline saga, he depicts in detail the 2017 arrests of five executives of IDBI Bank (who lent funds to Mallya) and four Kingfisher Airlines officials, who were placed in CBI custody without being granted recourse to a lawyer.
He narrates the executives were squeezed into one room and made to sleep on a durrie, with no pillows or blankets. The bankers arrested included Yogesh Agarwal, who was chairman of the bank when the last loan to Kingfisher Airlines was extended. He and B K Batra, former deputy managing director of IDBI, were kept behind bars for 54 days before they were released.
Even after 44 months a matter directly related to the charge against Mallya and touted as an open-and-shut case, was yet to go to trial, let alone be decided. It would be surprising if his lawyers didn’t highlight this to buttress their case.
Likely grounds?
If UNWGAD deduces Michel has been arbitrarily detained and recommends he be immediately released, Finelle said Indian authorities may be asked he be “compensated for the prejudice suffered” and the British government would have to take cognizance of the degrading and lawless treatment meted out to one of its citizens.
In other words, it could make it harder for the UK’s home office to justify denying asylum to Mallya. Michel’s letter to Johnson could add to the arguments towards that.
Sarosh Zaiwalla, senior partner at London solicitors Zaiwalla & Co, when asked for his opinion, first clarified: “My firm has never been consulted by Vijay Mallya in respect of the Crown Prosecution’s extradition application or his reported asylum application.”
He, then, stated: “The UK Human Rights Act 1998 protects the asylum seeker even if the asylum seeker does not qualify for refugee status. (Mallya enjoys ‘leave of indefinite stay’ in Britain.) The Human Rights Act enables an English Court to prohibit removal when the return of the asylum seeker to the home country would otherwise result in a ‘real risk’ of ill-treatment in his home country contrary to Article 3 of the international Human Rights Convention. The risk of ill-treatment would include inhuman treatment; and the court will gauge applying western standards.”
Zaiwalla summarised: “I am not aware of the grounds and facts Mallya is relying upon to seek asylum. But in my view the reported long detention without bail or a quick trial of Christian Michel and the alleged torture he is said to have undergone during investigation whilst in detention would in my view themselves be likely grounds for Mallya succeeding with his asylum application.”
The Indian Ministry of External Affairs and the UAE’s Ministry of Foreign Affairs were given opportunities to comment. Neither responded.