L’affaire Sushma Swaraj-Lalit Modi had television anchors break their Sunday Sabbath and rush to studio to explore the first scandal of the Modi era. As the day advanced, the expectation that the Minister for External Affairs was about to vacate her corner office above Gate No 4 of South Block was belied. The Bharatiya Janata Party had dug in its heels, preceded by the Rashtriya Swayamsevak Sangh giving the minister a certificate as a paragon of nationalism.
That said, the question that arises is whether her behaviour in helping the former IPL czar acquire travel documents was a case of poor judgment, or an attempt to by-pass established procedures for handling requests from those who have fled abroad to avoid the grasp of Indian law.
The first issue is an old one. Does “personal liberty” under Article 21 of the Indian Constitution grant a citizen the right to travel abroad and thus, by deduction, the right to a passport? The standard Indian Supreme Court ruling during this writer’s study of law four decades ago was the Satwant Singh case of 1967. While allowing the petitioner to get his revoked passport back, the court observed:
“The Universal Declaration of Human Rights – ‘Everyone has the right to leave any country including his own’ is applicable to normal persons. It does not apply to criminals avoiding penalties etc.”
The dilemma that confronts the Joint Secretary (CPV) & Chief Passport Officer of the Ministry of External Affairs is that Indian investigative agencies, unable to build the kind of fool-proof case needed to extradite fugitives who have fled abroad, often choose the easier path of getting the MEA to revoke their passport and thus force them to return to India to face investigation or even prosecution. The problem is that when this stand-off lingers on for years, it gets presented as a breach of Article 21 before Indian courts. Thus making the MEA face the music and not the agency.
The correct procedure for Sushma Swaraj would have been to ask the Chief Passport Officer, who reports to her, to bring the humanitarian grounds pleaded by Lalit Modi to the attention of the Enforcement Directorate, Ministry of Finance. The ED could have been told that because of the agency’s inability to build an extradition case for two years or more, it would be incorrect or even illegal to keep denying Modi a passport. Having thus alerted the investigative agency that had issued the blue corner notice against him in the first place, she could have then asked the MEA to advise the Indian High Commission in London to issue him a short duration passport, perhaps limited to travel to Portugal, but once again under intimation to the investigative agency.
It seems from the cloak and dagger methodology adopted by Swaraj that she preferred not to pursue the matter through established channels reporting to her. It is possible that she sought advice from MEA officers who misled her into believing the ED would be obdurate and unwilling to concede that passport revocation merely to put pressure on fugitives was an abuse of process when such revocation is not quickly followed by an extradition request. If so, the record will speak.
The next related issue is the nature of her approach to the British government to grant Lalit Modi an interim travel document. First, such an approach undercuts India’s blue-corner notice, the import of which is that the country wants the fugitive apprehended. If so, Swaraj may be guilty of contempt, or worse, of the Indian judicial authority issuing that notice. Second, did she route her approach to the British authorities through the Indian high commissioner in London? If not, this establishes what in legal terms is known as mens rea, a guilty mind. The minister, as a law graduate, would surely understand its significance.
Finally, when the Delhi High Court division bench reversed the single-judge ruling that had upheld the revocation of Lalit Modi’s passport, did the ED urge the MEA to approach the Supreme Court to challenge the judgment? On this question rests the determination of whether the government still considers Lalit Modi a fugitive. It is a strange spectacle to find parts of the government having different approaches to a case as high profile as this.
Ironically, the “fugitive”, if he is one any longer, is not squeamish about displaying on social media his jet-setting life style, the financial basis of which the government of India had set out to explore. Like earlier scandals involving politicians in India, time and delay only deepens the mystery as the elites across political parties are welded at the hip and like the Three Musketeers subscribe to the motto, Unus pro omnibus, omnes pro uno (One for all, all for one).
K.C. Singh is a former Secretary, Ministry of External Affairs
