Swaraj is Lalit Modi’s Birthright and He Shall Have It


File photo of Sushma Swaraj (PTI)

From his troubled days as a student in an American university, Lalit Modi grew to acquire many personas. The most celebrated of these stemmed from his involvement in the Indian Premier League. However, on 25 April 2010 he was issued a 34-page show cause notice to remove him as IPL’s Chairman and officially sacked in September 2010. After being found guilty by the Jaitley-Jyotirmoy report of July 2013, he was banned from the Board of Control for Cricket in India for life in September 2013. Already in England, his passport was revoked in March 2011; his challenge to this order was denied by a single judge in the Delhi High Court in January 2013 but allowed by a division bench on August 27, 2014.

An indulgent NDA government committed many errors to help Lalit. Consider the following list for starters:

Error 1: No appeal to the Supreme Court was filed against the 60-page August 27 judgment.
Error 2: Sushma Swaraj reversed the decision that the UPA government conveyed to British authorities i.e. that India viewed helping Lalit with travel rights as inimical to Indo-British relations.
Error 3: Sushma went into emergency mode to contact Britain’s High Commissioner and British MP Keith Vaz to facilitate documents for Lalit to visit his cancer-ridden wife in Portugal.
Error 4: No one examined the falsity of Lalit’s assertion that he was required to sign a consent-for-operation form for his wife’s operation. Sushma insists she acted for this humanitarian reason alone.
Error 5: There was a conflict of interest in Lalit writing to Swaraj’s daughter, Bansuri and her husband Kaushal, whom he knew, to push his case.
Error 6: Surely the conflict of interest deepened because Bansuri was part of Lalit’s legal team, arguably to the knowledge of her mother unless they don’t speak to each other.
Error 7: Sushma must have known of the Jaitley – Jyotirmoy BCCI report indicting Lalit Modi for financial misconduct.
Error 8: Sushma must also have known of the Enforcement Directorial (ED) notice to Modi for foreign exchange violations of up to Rs.425 crores and that there was a blue corner notice at all Indian ports for his arrest.
Error 9: Lalit was wanted in several criminal and other investigations in India. He was a fugitive from investigative justice even if not, as his lawyer points out, a declared fugitive offender.
Error 10: Lalit openly declares his personal friendship with Sushma on the basis of which he asked for a personal favour from Sushma in her official capacity. There is a cute file photo which shows both blowing whistles at an IPL match in 2010.
Error 11: Did Sushma examine Britain’s immigration law which distinguishes between a person being allowed to “remain” in the country while his legal entanglements in India were being sorted out, and a stamp allowing a person to remain, leave and enter the UK which is given to businessmen and not a self declared bankrupt.
Error 12: Is it the universal policy of the NDA to support all requests by Indians irrespective of any antecedents, for the right to remain in another country for any “humanitarian” reason without examining it? Will it also support a humanitarian policy towards refugees in India?

This ensemble of undeniable and irrefutable prima-facie errors establishes that Sushma’s explanation that she was acting for humanitarian reasons is total hogwash. Her decisions violated all principles governing the conflict of interest, her actions were illegal and mala fide in law. She favoured Lalit as a friend even though he was being investigated for criminality by various fora in India. Eventually, Modi cocked a snook at every one by tweeting: “This is war. So bring it on. I choose to lose a battle to win a war.” Arun Jaitley is being hypocritical when he says he supports Sushma but not Lalit who would be detained if he came to India.

One expose leads to others. In an interview with Rajdeep Sardesai from Montenegro, Lalit claimed that Sushma had helped him in a personal, not official capacity. Such a comment crushes Sushma’s self defence.

Vasundhara and son

It is self evident that Lalit is no stranger to getting benefits from those in power in a personal capacity and, reportedly came to be known as a “persistent extra constitutional authority” to Vasundhara Raje during her first term as Rajasthan Chief Minister (2003-2008), operating as a shadow CM. Raje also supported his residency application to the British authorities in 2011 on the “strict condition that my (i.e. Raje’s) assistance will not become known to the Indian authorities” What a line! Don’t tell India what I am doing. As Raje’s friend, Lalit transferred Rs. 11.63 crore to Dushyant (Raje’s son) firm. Examples can be multiplied. His modus operandi has been extra-legal, extra-constitutional and extraordinary, with a pathological ability for self deception in claiming innocence for his wrongs and the pretence that he is invariably a victim more sinned against than sinning. His style is despicable, his gains unworthy.

There is no defence for Sushma’s action. Her Foreign Secretary knew nothing about what she did. Her humanitarian argument is bogus. Her misuse of power was enormous. The BJP’s defence of her and Prime Minister Modi’s silence strain credulity. The argument claiming that she committed only an “impropriety” is unacceptable. Had any Indian civil servant done what she did, he would have been suspended, subjected to inquiry and sacked. Ministers, be they ever so high, are not above the law. The plea of “impropriety” or of  making an “innocent mistake” must fail.

What has given her immunity is the BJP’s majority in Parliament. If Modi does nothing, he is complicit. A maun vrata , or studied silence, will not do. Jaitley’s defence of her and the continuing indictment of Lalit cannot withstand scrutiny. Not doing anything about a wrongdoing is itself a wrongdoing.

We are, therefore, in a state of constitutional helplessness. The concept of constitutional shame which prescribes at least resignation has gone out of fashion. Faced with a majority government in Parliament the Opposition can only put pressure. Even Parliament’s committees are BJP dominated.

Violation of Corruption Act

But there is a case against Sushma under the Prevention of Corruption Act 1988 (PCA) because she has exercised her official duties for the benefit of another. She may not have directly taken gratification but surely her actions constitute an offence of “criminal misconduct”. The relevant section includes a situation whereby a public servant commits such misconduct “if he…(ii) by abusing his position as a public servant, obtains for himself or any other person any valuable thing or pecuniary advantage.”(Section 13(d)(11) of the PCA).

The “valuable thing” she helped Lalit obtain was a travel document that took away the only point of pressure the Indian government had at the time to force him to return to the country to join the criminal investigations pending against him. The punishment for this violation of the PCA is a minimum one year imprisonment, extendable to seven, as well as a fine. Our constitutional problem has always been that we treat abuses of constitutional duty as mere constitutional impropriety, and try and shame the shameless through public protest until the crisis blows over. It seems the only way out is to initiate legal action and, perforce, even change the law to enable it. Politicians ignore appeals to morality but may have some respect for the danda of the law.

Sushma is guilty, not just because she has opened a special, secret and informal “humanitarian” desk in the foreign office for special people but because she has abused her office and violated the law. Modi should sack her and institute proceedings. Of course we need a conflict of interest ordinance, a functioning Lokpal, a non-pliant Central Vigiliance Commission, and an effective code of conduct for ministers and public servants.

Rajeev Dhavan is a senior advocate in the Supreme Court.