July 26, 2015

By Naresh Minocha, Our Consulting Editor

Sushma breached core governance rules in helping Lalit Modi

Parliament impasse over Lalitgate should be resolved by looking at three key issues. These are:

1) abuse of discretionary powers;

2) violation of core governance rules named Government of India (Transaction of Business) Rules, 1961 and prima facie breach of specific laws.

The Treasury and the Opposition have to act responsibly on these three dubious actions of disgraced External Affairs Minister, Sushma Swaraj.

The initiative to break the stalemate must come from the Government, which is keeping all documents close to its chest. It has even stonewalled RTI queries on Lalitgate.

NDA Government knows that it would be left defenceless and faceless if it makes public all the documents. To judge whether Mrs Sushma's role in Laligate is "humanitarian" or unethical, MPs must have access to all correspondence between Indian and British Governments during UPA & NDA regimes over the urgency to deport alleged economic offender Lalit Modi.

BJP's stone-walling & mudslinging strategy is a de facto admission of the individual and collective guilt of Modi Government in aiding an accused to stay away from the long arm of the Law. The Government is leveraging Lokpal's non-existence and implied threat to use Official Secrets Act to shield Mrs. Sushma. And it is also abusing official access to incriminating documents against Congress leaders to throw mud back at Congress to force it to back off.

Modi Government is thus acting as defendant, prosecutor and Judge all rolled into one!

This is part of its larger strategy to minimize the scope for tumbling of skeletons from its cupboard in future. Scams would invariably hit headlines if media had liberal access to documents as during UPA days.

We need to dissect two extreme views on Lalitgate to search for the tentative truth on the basis of limited information in public domain. The Government's contention is that Mrs Swaraj, has done no wrong.

The Finance Minister Arun Jaitley has put the ball in the Opposition's court by saying that it is Congress' responsibility to tell what rules Mrs. Swaraj has broken. It is like hiding all cricket gear (documents in this case) in a cupboard and asking the rival team to show how cricket is played!

The other day Mr. Jaitley told reporters outside Parliament: "We asked them to inform which law has been broken, and under what provision they have been violated. But no one has been able to point out which provision of law has been violated."

The Opposition's extreme stand is exemplified by Congress Vice-President Rahul Gandhi's charge that Mrs. Swaraj has committed a criminal act that attracts jail term. As put by Mr. Gandhi, "Sushma Swaraj is a minister who the whole country knows has done a criminal act. When you do a criminal act, you go to jail."

She unilaterally weakened UPA Government's stand that shielding of Mr. Modi would harm bilateral relations. She did so by claiming that India would have no objection if the UK Government granted travel permit to Mr. Lalit, whose deportation was sought by UPA regime.

The deportation is required to help Enforcement Directorate (ED) and Directorate of Revenue Intelligence (DRI) interrogate Mr. Modi. DRI, an arm of Central Excise and Customs Board, had issued a light blue corner notice against Lalit Modi on 1 st October 2010 under the Interpol framework.

She kept the then Foreign Secretary, Sujatha Singh, in dark about her direct negotiations with the UK on this issue. Mrs. Sushma, in fact, lobbied for grant of travel permit by UK Government to Mr Lalit ostensibly to enable the latter to visit Portugal where his cancer-afflicted wife was to undergo treatment.

Mrs. Sushma's lobbying skill is evident in the leaked E-mails especially the one dated 31 st July 2014 from British MP Keith Vaz to Sarah Rapson, Head of UK visas and immigration. The reported Mail reads: "Foreign Minister of India (Sushma Swaraj) has spoken to me making it very clear that the Indian Government has no objection to the travel document being granted which is contrary to what the refusal notice has stated. Mrs Swaraj has also spoken to Sir James Bevan (the British high commissioner in New Delhi), who even though is on leave, said he will speak to the relevant person in the Home Office."

She kept the Nation in dark about the fact her daughter was appearing as attorney for Mr Lalit in Delhi High Court (DHC) in his appeal for restoring his revoked passport.

Such cases of conflict of interest must be included in the archaic Code of Conduct for Union and State Ministers. Let this be a personal credibility test for Prime Minister Narendra Modi, who vowed to fight corruption, which also needs to be redefined to factor in all types of quid pro quo (QPQ) deals.

On 27 th August 2014, DHC set aside UPA Government's passport revocation order that was issued by Passport Office in March 2011. NDA Government's failure to appeal against DHC verdict in Supreme Court has weakened India's case for deportation of Mr. Lalit.

For want of documents, it is difficult to say whether Sushma alone or whether Sushma and Mr. Jaitley (under whose Ministry ED &DRI function) should share blame on this count.

The possibility of Mr. Jaitley facing legal heat in Lalitgate can't be ruled out till there is a thorough, independent probe into Lalitgate and associated IPL gate. The latter scam is marked by allegations of tax evasion by BCCI, money laundering and foreign exchange violations by certain IPL team promoters.

This possibility stems from apparent conflict of interest that Mr. Jaitley faces as a key BCCI member and as Finance Minister. Only the official files and time would show how well he managed this conflict.

Mr. Lalit is highly unlikely to travel outside the UK on Indian passport as the travel permit given by UK government gives him immunity from extradition. Lalit thus continues to make fun of Indian governance system. Speculators don't rule out the scope for Mr. Modi acquiring citizenship of the UK or any country that shields fugitives. In all fairness to Mr. Modi, it must be noted that he not fugitive as defined under the Extradition Act, 1962.

As put by the Act, "'Fugitive Criminal' means a person who is accused or convicted of an extradition offence within the jurisdiction of a foreign State and includes a person who, while in India, conspires, attempts to commit or incites or participates as an accomplice in the commission of an extradition offence in a foreign State."

Coming back to core issues, Mrs Sushma's conduct in the Lalit-centric bilateral negotiations violates the Government of India (Transaction of Business) Rules, 1961 (TOBR).

She breached the TOBR rule relating to Inter-Departmental Consultations. The Rule reads as "When the subject of a case concerns more than one department, no decision be taken or order issued until all such departments have concurred, or, failing such concurrence, a decision thereon has been taken by or under the authority of the Cabinet."

TOBR explains: "Every case in which a decision, if taken in one Department, is likely to affect the transaction of business allotted to another department, shall be deemed to be a case the subject of which concerns more than one department."

In this case, Sushma's facilitation of UK travel permit for Mr. Lalit has obviously weakened ED's efforts to force him to come to India for interrogation for alleged violation of laws such as Foreign Exchange Management Act (FEMA).

Mrs. Sushma wilfully breached TOBR. She knew about ED's & UPA's Finance Minister, P. Chidambaram's correspondence with the UK authorities on the need to evict Lalit. The Government's stand on such critical subjects does not change simply with coming to power of a new political party/alliance.

Even a school drop-out knows the implications of helping an accused who stubbornly resists personal appearance before law enforcement agencies on one pretext or the other.

Congress spokesperson Randeep Surjewala thus last month pitched for invoking Indian Penal Code (IPC) against Mrs. Sushma for helping Lalit to stay away from the Law of the land.

Mr Surjewala reportedly stated: "Section 107 of the IPC provides punishment for abetment or aiding by any act, or illegal omission… Is she (Swaraj) not an abettor to the crime? Should an FIR not be lodged against her?"

Prima facie, she has potentially attracted charges of abetment. It is, however, premature to book Mrs. Sushma under IPC for abetting an accused to avoid interrogation and perhaps arrest. This can be done only after Mr. Lalit Modi's interrogation is started.

The interrogation might even establish suspected violation of Prevention of Money Laundering Act. Thus, the charges for abetment of violations of one or more laws by Mr. Lalit can be taken forward only after his deportation.

Mrs. Sushma also violated TOBR on another count relating to cases which shall be brought before the Cabinet. The relevant Rule deals with "cases involving negotiations with foreign and Commonwealth countries on treaties, agreements and other important matters."

Mr. Lalit case obviously comes in the category of 'other important matters' as it has a direct bearing on extradition of fugitives. Duhaime's Law Dictionary defines a Fugitive as "One who is unlawfully at large; who hides or extracts himself from the reach of law enforcement officers to avoid arrest, prosecution or imprisonment."

Mrs. Sushma might not have complied with yet another provision of TOBR as regards her role in Lalitgate. The concerned Rule requires periodical submission of papers to President for his information "important telegrams exchanged between the Ministry of External Affairs and representatives abroad."

The violation of TOBR alone constitutes a strong ground for PM to ask for resignation of Mrs. Sushma. Alternatively, he must prove that Mrs. Sushma has not violated TOBR. Will he make such offer to the Opposition to break Parliamentary logjam in national interest?

The other day, Sushma proved herself too clever by half: Through a tweet, she implicitly compared her travel favour to Lalit Modi with a Congress Leader's plea for grant of diplomatic visa to a Coalgate accused, who is not a fugitive. The two cases are incomparable.

The accused is an ex-Union Minister of State Santosh Bagrodia, who has legally requested for renewal of his diplomatic passport.

The senior Congress leader, whose name is not yet disclosed, requested Mrs. Sushma by virtue of the fact she enjoys discretionary powers to grant diplomatic passports under Category F. Had she exercised the discretionary power in a transparent manner, the scope for lobbying would have got minimized.

She or her predecessor should have either surrendered these discretionary powers or made adequate public disclosure under RTI format.

The latest update on surrender of discretionary powers by ministers under NDA Government is hard to come by. Modi Government has apparently not done anything on this count.

When UPA was in Power, it was repeatedly pursuing with the ministries this subject. The last reminder on 'Regulating parameters for exercise of discretionary powers enjoyed by Ministers at the Centre' was issued to 38 ministries including MEA on 1 st January 2014.

The reminder signed by an official of Department of Personnel & Training (DOPT) refers to its original office memorandum (OM) dated 15 th April 2012. OM had advised all ministries and departments to "put in place regulatory parameters for exercise of discretionary powers of Ministers and to put them in public domain so as to minimize arbitrariness in exercise of such powers and to send a copy of the guidelines, if already framed, within 15 days."

DOPT had issued OM in pursuance of decision taken by UPA on the recommendation made by Group of Ministers (GOM) that constituted in January 2011 to consider anti-corruption measures.

In its first report submitted in April 2011, GOM recommended: "wherever the Ministers have discretion in discharging their official function, e.g. for making nomination to various bodies, suitable guidelines should be formulated by the Ministries and be placed in public domain."

GOM has its origin in 2 nd report of Administrative Reforms Commission (ARC) titled 'Ethics in Governance' that was submitted in 2007.

The report says: "An office having more discretion and more public interface is more vulnerable to corruption than an office in which there are no discretionary powers."

The available evidence suggests that NDA has suffered huge credibility deficit by failing to enforce proactive, generous disclosures under RTI and by delaying setting up of Lokpal. It has also been very slow in taking forward certain other measures initiated by previous regime.

Way back in May 1998, an IMF working paper on corruption around the world observed, "however, like an elephant, even though it (corruption) may be difficult to describe, it is generally not difficult to recognize when observed. In most cases, though not all, different observers would agree on whether a particular behaviour connotes corruption. Unfortunately, the behaviour is often difficult to observe directly because, typically, acts of corruption do not take place in broad daylight."