15/06/2015 12:47 PM IST | Updated 15/07/2016 8:25 AM IST

5 Reasons Why Sushma Swaraj's Defence Is Untenable

How did she make a unilateral 'humanitarian' decision in favour of a man who was being pursued by India's law enforcement agencies? Did she make a competent assessment of the consequence of the relaxation she was granting?

SAJJAD HUSSAIN via Getty Images
Indian Foreign Minister Sushma Swaraj addresses a press conference in New Delhi on May 31, 2015. Swaraj held the press conference to mark the first anniversary of Prime Minister Narendra Modi's government. AFP PHOTO / SAJJAD HUSSAIN (Photo credit should read SAJJAD HUSSAIN/AFP/Getty Images)

The discomfort all around about the allegations that have now surfaced against Sushma Swaraj is palpable. Even opposition parties are treading a careful line instead of an aggressive all-out attack.

This is to Swaraj's credit. She has led an impeccable public life. She rose on her own steam and has not let scandal taint her long career. In the Narendra Modi government, she has lain low, but is seen as a minister responsive to the problems of Indians everywhere, particularly the republic of Twitter.

She is the rare BJP politician who enjoys a measure of cross-party acceptability. So not even her political opponents seem to wish it upon her that this scandal should undo a life's work and reputation.

But in this instance, her defence is weak, and she has erred. And she has erred in a manner that is at best naive, but more realistically, deeply problematic.

Here are the facts, undisputed:

Lalit Modi is a fugitive from Indian law. His passport has been revoked. The Enforcement Directorate has issued a blue notice against him, which means cooperating international agencies will maintain a lookout for him and he will be arrested if he lands on Indian soil. The charges against him are serious and involves money laundering, an issue the Modi government is avowedly serious about.

The Mumbai passport office revoked Modi's passport in 2010 on the request of the enforcement directorate (ED). ED wanted Modi to appear before it for interrogation, and Modi wouldn't come back from the UK, saying there were threats against his life. On his passport getting revoked, Modi effectively became a stateless man, but the UK wouldn't deport him, citing legal complications. The UPA government conveyed to the UK that it should not permit him to travel. If such permission were granted, it said, bilateral ties would be affected. In other words, the preceding government deemed charges against Modi so serious that it went to the extent of saying it would stake UK-India ties if he were allowed to travel on British documents.

The Narendra Modi government came to power in May 2014. In July, Sushma Swaraj dramatically changed India's policy on Lalit Modi (for readers unfamiliar with the characters involved, the two Modis are unrelated). She conveyed to the British that India would be ok if UK issued travel documents. Based on this, and with generous amount of lobbying by Indian-origin English MP Keith Vaz, Modi was suddenly free to travel the world. Swaraj's defence is that she made the decision on humanitarian grounds, because Modi "told her" his wife had cancer and he had to travel to Lisbon to sign consent papers ahead of her surgery.

Here are five reasons why this defence is untenable.

1) Did Swaraj check with enforcement directorate and finance ministry if it was ok?

How did she make a unilateral 'humanitarian' decision in favour of a man who was being pursued by India's law enforcement agencies? Did she make a competent assessment of the consequence of the relaxation she was granting? The travel document Modi obtained thanks to her intervention was not a one-time document. It meant he could now travel anywhere.

Whatever the reason Modi might have given her, it was not her decision to make. She was reversing India's policy on Lalit Modi and she should have checked with those pursuing him, and indeed the ministry of finance, if his international travel could sabotage their case or allow him to tamper with crucial evidence. If she has indeed done this, she needs to come out and say it.

2) Did she verify Modi's claim?

Did she ask him for documents from the hospital to prove that his attendance was necessary to sign the consent papers? If she had got her office or any government agency to do a cursory check on the claim, she would have found in a day that Portugal law does not require such papers. A fugitive from Indian law took India's foreign minister for a ride. Leaves a bad taste in the mouth.

Here's what is worse. A British Certificate of Travel is not even accepted in Portugal! When Modi "told her" that he needed a certificate of travel to go visit his wife in Lisbon, a Google search would have told her that that claim needs verification. She took a fugitive's request at face value.

Applicants for this document must show that they have been "unreasonably refused" a passport by their home authorities. In effect, India's foreign minister endorsed this assertion by Modi.

3) There's severe conflict of interest.

When Sushma Swaraj made this humanitarian decision in favour of Modi, her daughter Bansuri Swaraj was representing Lalit Modi as his legal counsel in the Delhi high court. On 27 August 2014, the Delhi high court set aside the revocation of Modi's passport. Swaraj should not have made a decision--least of all a discretionary, favourable one that reversed existing policy--in a case involving her daughter's client. Leaked emails also show that Swaraj's husband Swaraj Kaushal had sought Modi's help in securing a university admission for his nephew in 2013. In her statement yesterday, Swaraj simply says that the admission was secured through the normal process, offering no explanation about the email. When Modi finally secured British travel certificate, he marks both Bansuri and Swaraj Kaushal in the thank you email. It's altogether the kind of messy and conflicting lines of interests and allegiances that Narendra Modi refers to when he talks about the Lutyen's cosy club that he wants demolished.

4) Why no appeal?

The high court set aside the revocation of Modi's passport principally on technical grounds--that the revocation was disproportionate punishment for the sin of non-appearance on an ED summons. The court specifically says in its judgment that it has not gone into the merits of the FEMA (Foreign Exchange Management Act) charges against him. It's mystifying why the government, which came to power promising serious action on black money and money laundering, stood by and watched, and did not appeal in the higher court. Four years of work by officials of ED and other state agencies had gone into prosecuting Modi. It is also worth bearing in mind that India's foreign minister's intervention gave Modi a British travel certificate reportedly valid till 2016. So no matter which way the court order might have gone, Modi could have travelled the world comfortably.

It's seriously worrying if the minister doesn't comprehend the benefit she conferred on Modi.

5) Did she keep the PM and other cabinet colleagues informed?

Allowing Modi to travel internationally was an important decision that should have involved at least two other ministries--finance and home. ED reports to the finance ministry and a lot of work have been done by agencies under both ministries in building up a prosecution case against Modi, over the tenure of two governments. She might have seriously undermined that effort by making a unilateral concession. If she did inform or consult other ministries and if other stakeholders were part of the decision, she hasn't said it so far.

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