External Affairs

Six Questions Sushma Swaraj and Narendra Modi Need to Answer

Lalit Modi’s absence from India suits the cosy, Big Money world of Indian cricket, whose intersection with Big Politics is now an indisputable, and ugly, part of life

File photo of Sushma Swaraj and Lalit Modi at a cricket match in 2010. PTI photo.

File photo of Sushma Swaraj and Lalit Modi at a cricket match in 2010. PTI photo.

There is a delicious irony in the fact that the first major whiff of impropriety to surface during the tenure of Narendra Modi as Prime Minister should come from a favour shown by his government to another Modi.

The facts as they stand are simple and damning.

Lalit Modi, the former commissioner of the Indian Premier League, is a fugitive from Indian law. He fled the country following allegations of monumental graft in the allocation of broadcast rights for the lucrative cricket tournament he ran at the time.

The Enforcement Directorate issued a blue corner notice against Modi in 2010 as they wished to interrogate him about a string of alleged offences that include violations of the Foreign Exchange Management Act as well as money laundering. When he surfaced in London, the Government of India sought the surrender of his passport. When he failed to comply, his passport was cancelled, effectively confining him to England’s green and pleasant land.

Now Lalit Modi is a peripatetic man who likes to be pictured acting flamboyantly in different corners of the world. He moved the Indian legal system, as was his right, to have his passport returned but his plea cut no ice with the Delhi High Court. His lead counsel at the time was the respected advocate, U.U. Lalit, who has since gone on to become a judge of the Supreme Court. One of the lawyers who also appeared for him was a young woman called Bansuri Swaraj, who happens to be Sushma Swaraj’s daughter. That was in January 2013.

As an interim solution pending the decision on an appeal he filed before a division bench of the HC, Modi sought a British certificate of travel. The British government demurred on the grounds that the Indian government had serious objections to a fugitive being helped in this way, and there matters stood, until May 16, 2014.

The election of Narendra Modi and the subsequent appointment of Sushma Swaraj as External Affairs Minister changed everything.

We now know from the leaked email correspondence of Lalit Modi and the British MP Keith Vaz that Swaraj actively intervened to ensure that the man whose presence in India is still being sought by the ED obtained the British travel documents he sought.

In a series of tweets on Sunday, Swaraj explained her intervention as an act of humanitarianism. Lalit Modi’s wife needed to undergo cancer surgery in Portugal on August 4, 2014. Modi’s presence was required there in order for him to sign “consent” forms at the hospital. So she decided to inform the British government that India no longer had any objection to this fugitive from Indian law being allowed to travel to Portugal or anywhere else in the world.

Though Swaraj does not enjoy the best of relations with the Prime Minister or his influential Finance Minister, Arun Jaitley, Narendra Modi has decided to batten down the hatches and hope this storm blows over. Senior BJP leaders like party president Amit Shah and Union Home Minister Rajnath Singh have been deployed to send the message that the government is standing solidly behind Sushma Swaraj. There was nothing immoral in the decision she took, Shah said. “The decision to help Lalit Modi was purely a humanitarian one,” he insisted.

Unfortunately for Narendra Modi, Amit Shah and Sushma Swaraj, the questions raised by this murky affair will not go away so easily. Here’s an illustrative list.

1. Did the Narendra Modi government do any due diligence on the ‘humanitarian’ aspect of Lalit Modi’s request?

Assuming for a moment that Swaraj was driven by humanitarian impulses alone, a few faxes and phone calls would have quickly established the nature of the procedure Lalit Modi’s wife was to undergo in hospital and why her husband’s physical presence was required. Consent for surgery can easily be obtained from an adult provided she is conscious, which Mrs Modi must have been as the surgery was scheduled several days in advance. In any case, there are some indications that Lalit Modi might have made too much of the consent issue. “A written consent is not required in Portugal,” an EU document easily available on the internet with just a simple Google search, notes. “The Criminal Code stipulates that the consent can be expressed through any means that convey the serious, free and informed will of the titular of the legally protected interest.” (original emphasis) Perhaps this document is out of date or irrelevant. At any rate, the Government of India had adequate resources at its disposal to quickly verify this aspect of Lalit Modi’s claim but it chose not to do so. Why?

2. Does the Modi government not believe there was a conflict of interest involved in Sushma Swaraj acting alone in reversing India’s stand on a wanted man when her daughter, Bansuri Swaraj had represented him in his travel-related litigation, and when the minister and especially her husband, Swaraj Kaushal, happened to be personal friends of Lalit Modi?

Even if Swaraj was convinced about the humanitarian grounds involved, ought she not to have either ‘recused’ herself or at least broad-based the decision-making process by bringing the Finance Ministry and even the PMO into the picture? Had inter-ministerial consultations taken place, Lalit Modi’s request could have been made the basis of a bargain in which he is asked to return immediately to India, answer the ED’s questions, and is then allowed to travel to Portugal. Instead, Sushma acted swiftly and directly. BJP spokespersons say that Sushma Swaraj responds promptly to the requests of ordinary Indians around the world who get caught up in an emergency and they are right. That has been one of the more endearing aspects of her tenure as minister. But to pretend Lalit Modi falls into the same category is sheer dishonesty. In the vast majority of cases involving consular assistance, it is the MEA’s bureaucracy which swings into action once Swaraj gives the nod, rather than the minister herself  personally speaking to foreign ambassadors and MPs. Judges regularly recuse themselves from cases when there is even the faintest whiff of a conflict of interest. Here, the smell is rather more pronounced.

3. Does Prime Minister Modi not believe it highly improper for Sushma Swaraj to have contacted Lalit Modi in 2013 for help in securing her nephew’s admission to a British university, when she held the constitutional position of Leader of Opposition in the Lok Sabha at the time?

Lalit Modi may be Swaraj’s friend but he is also a wanted man. The ED alleges his involvement in a scam worth Rs 450 crore. According to the Sunday Times, which accessed Lalit Modi’s emails,

“On August 29, 2013, Modi passed the family’s request to Vaz: “Hi Keith, Mrs Sushma Swaraj called to see if we can do anything to help her nephew get into law degree programme at Sussex. Can you help with this? Much love, Lalit.”

Swaraj said on Sunday that the nephew’s admission took place before the NDA came to power, which is an irrelevant point. As is the argument made by BJP spokespersons that there is no proof Sussex University granted the lad admission because of Lalit Modi and Keith Vaz. What matters here is that Swaraj, as LOP, sought a favour from a fugitive. Is it really likely that this favour-seeking did not even enter the minister’s mind when she took up his case on “humanitarian” grounds a year later?

4. If a decision to allow Lalit Modi to travel was indeed warranted on humanitarian grounds, why didn’t Swaraj try and tell the British government that the travel document they provide him should be valid for Portugal alone and for a limited duration only?

The Certificate of Travel issued to Lalit Modi allowed him to travel anywhere in the world for two years. Swaraj tweeted on Sunday night, “He was in London. After his wife’s surgery, he came back to London. What is it that I changed?’ What she changed was to remove the one lever of pressure the Indian government had over Lalit Modi. Now that he was free to travel on his own terms, he would be be even less likely to return to India to face the ED’s music. Since the British issued Modi’s Certificate of Travel only because Swaraj gave the green light, she could easily have asked them to limit its scope. Why didn’t she?

Lalit Modi posted a photograph of the Certificate of Travel issued to him by the British government on his publicly-visible Instagram account.

Lalit Modi posted a photograph of the Certificate of Travel issued to him by the British government on his publicly-visible Instagram account.

5. Why has the Modi government not appealed the August 27, 2014 ruling of the Delhi High Court division bench which restored Lalit Modi’s Indian passport?

Just as Swaraj intervened on ‘humanitarian’ grounds to allow Lalit Modi to travel on British papers, other ministers appear to have now made the ‘humanitarian’ decision to allow him to travel on his un-revoked Indian passport rather than going on appeal to the Supreme Court and seeking a fresh revocation. Why is this?

6. How serious is the Government of India in investigating and prosecuting Lalit Modi?

Five years after issuing a blue corner notice, which only requires other countries to “locate, identify or obtain information on a person of interest in a criminal investigation” isn’t it time to raise the stakes and issue a red-corner notice? For all the toughness of its stand in conveying its objections to the UK government, the Manmohan Singh government never bothered to initiate legal proceedings for Lalit Modi’s extradition. Perhaps the ED had not been able to build a strong enough case in the absence of his interrogation. But what the Modi government has done now is to make his interrogation by the ED even less likely than before.

This apparent indulgence towards a man suspected of massive FEMA violations is in stark contrast to the crackdown on NGOs receiving overseas contributions in foreign exchange. Earlier this year, the Modi government prevented a Greenpeace activist from travelling abroad on the grounds that her presence in London would hurt India’s image. One wonders how India’s image is being helped by Lalit Modi jet-setting around the world without the government doing anything serious to bring him back.

Or could it be that his absence from the country suits the cosy, Big Money world of Indian cricket, whose intersection with Big Politics cutting across party lines is now an indisputable – and ugly – part of life?