Black Money Act Does Not Contravene Bhandari’s Human Rights: UK Court

London: District Judge Michael Snow rejected Indian arms-dealer Sanjay Bhandari’s challenge to the extradition process in the English Courts. He stated that the Black Money Act does not amount to a “complete reversal of the burden of proof”.

As reported in Newsclick, Bhandari’s defence, including the high-profile UK Barrister Edward Fitzgerald, had challenged the Black Money Act, suggesting that it was contrary to the very essence of English Common Law: “The duty of the prosecution to prove… guilt” (Lord Sankey). The defence had tried to argue Bhandari’s extradition should be rejected on the grounds, among others, that it contravened Article 6 ECHR (European Convention on Human Rights), namely the right to a fair trial.

The English judge, however, noted the context of the Black Money Act in India to deal “with the menace of Black Money stashed away abroad”. The Indian government had pointed out in its submissions that even the UK Proceeds of Crime Act 2002 contained a similar reverse burden of proof provisions.

This was the first time the Black Money Act had been challenged internationally in such a way according to a legal expert.

In a 107-page judgement, issued on November 7, 2022, viewed by this author, District Judge Michael Snow rejected Bhandari’s defence and sent the extradition matter to the Secretary of State in the UK to decide whether he is to be extradited. The Judge said this was on the basis of assurances provided by the Indian government, particularly in relation to prison arrangements.

One particular issue on which the judge had sought the Indian government’s assurance was the “risk of the defendant being transferred to a police station or other investigating bodies premises on a temporary basis” where he might face the risk of being tortured or treated in an inhuman or degrading way (i.e. treatment that contravened Article 3).

To overcome this, the Indian Ministry of Home Affairs had provided assurances that “he [Bhandari] will not be removed from prison” except for circumstances of bail, medical treatment or appearance in court. Assurances form a key part of the extradition process, as they provide a sovereign assurance that an individual’s human rights, will not be violated upon extradition.

Interestingly, the Judge had expressed concern over the findings of UNWGAD (Untied Nations Working Group on Arbitrary Detention) in the case of Christian Michel – a British National and alleged middleman -- being investigated by the Indian agencies and who has been in custody for over 3 years pending trial.

The 2020 UN working group had previously concluded that:

“the violations of the right to a fair trial and due process are of such gravity as to give Mr. Michel’s deprivation of liberty an arbitrary character, falling within category III.”

Seemingly in contrast to this, the Judge has reasoned that India has a “robust and independent judiciary” and “India is governed by the rule of law”. Previously, the defence barrister Fitzgerald had attempted to “qualify” that statement that India abided by the rule of law.

Bhandari now has the right of appeal in the London Court and remains on bail in London. Despite expert evidence suggesting the defendant “was the subject of a politically motivated attack by the Prime Minister of India, Narenda Modi and his Bharatiya Janata Party (BJP) administration”, the defence for Bhandari chose not to pursue an argument of political persecution as it could not meet the evidential burden in court.

At least for now, the legal international acceptability of the Black Money Act is still intact post the English Court decision and India gets one step closer to seeing Bhandari’s return to Indian shores.

Nevertheless, how India deals with the case of Christian Michel, particularly the concern from the United Nations Working Group and the English District Judge, remains a very separate issue to watch out for.

The writer is a UK-based financial consultant and researcher.