17/06/2015 6:19 PM IST | Updated 15/07/2016 8:25 AM IST

Can The Government Now Appeal Against High Court Order Restoring Lalit Modi's Passport?

CARL COURT via Getty Images
Ex-chairman of India's cricket IPL, Lalit Modi, leaves the High Court in central London on March 5, 2012, after a hearing in a libel case brought against him by Former New Zealand cricket captain Chris Cairns. Cairns told the High Court in London on Monday that an accusation of match-fixing had reduced his career to 'dust' and strained his marriage. Cairns, 41, is suing Lalit Modi, the former chairman of Twenty20 franchise the Indian Premier League (IPL), for substantial libel damages over an 'unequivocal allegation' made on Twitter. AFP PHOTO / CARL COURT (Photo credit should read CARL COURT/AFP/Getty Images)

NEW DELHI -- The first order to revoke Lalit Modi's passport was made by the Regional Passport Officer in Mumbai in 2010. The RPO did that on a request by the Enforcement Directorate. Lalit Modi contested that decision. Modi and the government fought the battle till 2014, when the last standing order in this matter was pronounced by a division bench of the Delhi high court in August 2014. In the four intervening years, the Passport Appellate Authority in Delhi (a unit of the external affairs ministry) and a single bench of the Delhi high court, ruled in the government's favour. A division bench ruled in Modi's favour.

A lawyer who served as the government's standing counsel in the matter throughout the duration of the case, has now said that he was mystified why the government did not appeal the high court decision.

"The government of India files appeals on all small and big matters, from conversion of property of leasehold to freehold and so on," he said. "This is a high profile case and it was fought very hard. It is mystifying why the government did not go on appeal," said Jatan Singh, a government law officer who was part of the legal team that fought the case on the government's behalf.

Singh was the standing counsel for the central government in the Delhi high court from 2009 till July last year, just a month before the latest high court decision.

The decision by the division bench of the Delhi High Court came on 27 August, a few weeks after external affairs minister Sushma Swaraj had intervened on Lalit Modi's behalf to get him a British Travel Certificate. This meant that even if the court decision went against him, he could travel anywhere he liked till 2016.

Singh said normally the department that is party to the case (the MEA, in this case) decides on whether or not to appeal a court decision in consultation with the government's law officers. In this case, he said he was unaware how the decision was made. Law officers are routinely changed when a new government takes charge.

If now, following the controversy, the government were to file an appeal in the Supreme Court, Jatan Singh said he feels it would be difficult on two grounds.

"In my personal opinion, the government won't be able to show sufficient cause for not filing an appeal within the statutory period, which is 60 days. Now nearly a year has passed. The other problem is that the travel certificate is valid till 2016. You have to first contest that decision before you can go on appeal," he said.

The Enforcement Directorate had got the passport authority to revoke Modi's passport in 2011 after he evaded several summons to join investigations against him. When Modi's lawyers appealed to the passport appellate authority, they ruled against Modi, following which his lawyers approached the Delhi high court. A single judge bench ruled in the government's favour, and Modi appealed against the high court order as well. In August last year, the Delhi high court ruled in Modi's favour, restoring his passport. The government since then has been silent on the issue.

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