Why do we now care about Lalit Modi's travel plans?

One thing seems clear, at the time of her conversations with the British High Commissioner, Sir James Bevan and British MP Keith Vaz, minister of external affairs Sushma Swaraj had knowledge that was uncommon. Her personal connections with Lalit Modi, her family's role as among his legal confidantes included, and perhaps discussions within the government might have led her to a simplistic understanding of what she was about to do. Has there been an effort to aid prime minister Narendra Modi by powerful political players? Yes. Should Swaraj have followed procedure, or gone through her office to communicate her message to the British government? Also, yes.

Was there intent to hide? It is impossible to deny that. Perhaps Swaraj's understanding of the situation was that by the time Modi returned from that one-off trip to Portugal, his passport would be restored by the courts anyway and the matter would be irrelevant. In the meantime, if a casual, verbal okay to the British government helped Modi, she would have done her bit as a friend. This is the extent of her mistake.

But before we hang Swaraj, how about a little history? In its 60-page judgement, the division bench of the Delhi High Court, comprising Justices Badar Durez Ahmed and Vibhu Bhakru, on August. 27, 2014 unequivocally stated that the revocation of Modi's passport could not stand in the eyes of the law. The justices concluded that the regional passport officer had examined evidence and information that was not germane to the matter for which the Enforcement Directorate(ED) had asked for the passport to be revoked.

Now here is the great thing about democracies and complex legal systems. They are inherently designed to limit the powers of the government and its ability to persecute its citizens. Let me explain: the ED asked for Modi's passport to be revoked on the grounds of his non-compliance with its summons. Why was the ED issuing summons? For violations under the Foreign Exchange Management Act (FEMA) and, therefore, the relevant sections of the Income Tax Act. For those interested in the legal intricacies of the judgement (and it does make for fascinating reading), it is in the public domain. But here is my understanding of what the justices concluded:

Under the provisions of the acts under which the summons were issued, there is a provision for the summoned party to appear either in person or through an authorised legal representative or a chartered accountant. Modi said he could not attend in person but did so through his lawyers. Video conferencing was also on offer, but dismissed by the ED.

The bench upheld the argument of Modi's counsel that the revocation of the passport was in violation of Article 19 of the Constitution. It cited precedent and concluded that Modi's fundamental right to freedom of speech and expression had been illegally suppressed by the revocation of his passport. This is a pretty big deal. After such a strong statement by the Delhi High Court, did the government have grounds for appeal? Perhaps that is a question constitutional lawyers can answer.

The bench was also of the opinion that since the ED's case had not, in the four years that had gone by, progressed to the stage where actual penalties were issued, it was wrong to continue to uphold the order revoking Modi's passport. If the case had progressed, and Modi had defaulted, there might have been grounds for arrest, as prescribed by FEMA laws, and so on. But that was not where things stood.

The judgment is, in legalese, the court's way of saying that the government used extra-legal means to try and arm-twist an Indian citizen into doing something he was not required by law to do.

There are probably a couple of reasons why the government decided not to appeal the decision. One might have been to give the ED enough time to build up its case so that it would reach a stage where the contraventions of the law would be actionable. Another might be the government's own fears of the can of worms that might be opened if it proceeded too far on the matter. As we have already seen over the past several years, it is impossible to tell where the stench of dirt in cricket fades and the stench of politics takes its place.

Fear and loathing

For the year or so since Modi has been able to travel he has done so with great aplomb, and this is not any great piece of investigative journalism as some news outlets would have you believe. His publicly accessible Facebook and Instagram pages reflect this in all its glory. While it may not be a lifestyle most of us aspire to or hold in great appeal, it is one that few would turn down without the bat of an eyelid. Private jets, exotic locations, parties with Kate Moss and Naomi Campbell, Stephen Fry and Kevin Spacey, Shah Rukh Khan and Deepika Padukone; the list is endless. For over a year this bothered no one in India. Suddenly, we take offense to it all.

It took Modi four years to be able to leave the UK. Four years for a man of almost unlimited means to get the Indian legal system to accept that his fundamental rights had been violated by the government. Modi might strike you as an odd poster-boy for the protection of the rights of Indian citizens from government persecution, but that is exactly how he has emerged. As a man with plenty of money, he could probably have bought a different nationality in a fraction of that time. Instead, he told me in an interview in early 2014, he had decided to "Keep fighting in courts in India. I have done nothing wrong and I will fight every allegation against me till it is proven, beyond any doubt, that what I did was by the book. The UPA government chose to target me. They withdrew my police protection despite death threats, tried to deport me and failed and finally took away my passport. But I will keep fighting."

If it took Modi, and his army of lawyers, legal advisors, money and powerful friends, four years to have his appeal heard by the courts, what would you or I do if, for example, the IT department decided to do the same to us for filing our taxes a few months late? And when the media, including the so-called liberals, decide to completely ignore this part of the story, that induces bone-chilling fear.

There are several charges against Modi. I will not get into what they are, but I would recommend those interested in this story read up on them. Modi has a response to each of the charges. His lawyers have provided those responses, presumably backed by evidence, to the investigating authorities. The fact that he has been convicted on exactly zero of those charges by a court of law, seems to indicate he has both good representation and a strong defence. Were Modi a convicted criminal, or a "fugitive" as he is being called, there would have been no room for debate. When I asked Modi about the charges at his London home in February 2014, he provided a detailed response. Part of his defence rests on an assertion that the financial actions (including the transfer of funds to Cricket South Africa that has been held in violation of FEMA) of the BCCI were conducted not by him but by the Board and with its approval.

Thank God for small mercies

It is always amusing when the Congress attempts to take the high moral ground on an issue (or a non-issue, as in this case). Anand Sharma called the present government a "nikkammi sarkar". Rahul Gandhi called Modi the "symbol of black money outside". And yet, for more than four years after the charges were levelled against Modi, the Congress-led UPA government was unable to find anything that stuck well enough to bring him to justice? It is time we started questioning that failure too. If the BJP government has helped make Modi's life easier, then it is also true that the previous government did little, except illegally revoke his passport, to make it more difficult either.

If successive governments have been unable, or unwilling, to bring Modi to book, does it apply that he is innocent until proven otherwise? If he is innocent, and naive or brazen enough to use social media to keep the world updated of his whereabouts at all times, why do we care if he has a passport or how he got it?

Who gains from all this?

An outsider watching the coverage of this potboiler might assume there are no real issues for India to discuss. The outsider would be wrong, but that's our fault, not his. I hope some of our intellectuals will find the time to critique the role of the media in all this sensationalism and conspiracy-theory mongering. I, on the other hand, would like to examine who benefits from all of this drama? Who benefits from dealing another body blow to Modi's long-cherished dream to return to India, and to cricket administration, as the man who fought and slayed the dreaded dragon? Who benefits from staining the otherwise spotless reputation of the most widely accepted and respected BJP leader since Atal Behari Vajpayee? It doesn't take a genius to answer these questions. And the answer most certainly isn't the Congress party.

What are we after?

I have met Modi several times. All of these meetings have been in London. He is a sharp observer of cricket and business. He loves to talk and is an engaging story teller with some big stories to tell. In another life he might have been a wildly successful writer of spy fiction or political thrillers. But in this life, Modi represents big business (big tobacco to be specific). The links between big business and big government are just a logical extension of the basically transactional nature of all human social engagement. We give and we take; take and give. That is how humans differentiate themselves from all other species and have created a world in which we are the masters and all others subordinate. We have a unique ability to cooperate, which makes us unbeatable. We also have the unique ability to destroy. Quid pro quo is not an exception. It is a fundamental rule of life. Without people to help, life is impossible to live. Not a single one of us can claim to have neither received nor accepted a favour.

And this is where it gets interesting. Modi tweeted on Monday, saying, "this is war". Sure, he has a penchant for melodrama. He also has an affinity with the legal profession. He is surrounded by lawyers and spends millions on legal fees. He is also meticulous about record-keeping. Most of all, Modi loves playing this game. Since most of us in the Indian media are likely to prove incapable of genuine, independent investigation, this story will progress in the form of leaks from this side and that. Each will counter the other. More names will be dragged into the mix and, at some stage, big business and big politics will decide it is time to put the lid back on the can of worms. It is not in interest of anyone involved with this story to see it through to a final resolution.

Swaraj might lose her job, she might not. But the normative arguments that we are making-the moral outrage at a politician using influence to help a multi-millionaire friend- do not have any place in the real world. The real world is capitalist. That is how we have all chosen to exist. The links between money and power are as basic to our existence as the links between mother and child. They have existed, and will exist, forever.

Will Lalit Modi be the tipping point of a global reformation that will alter these fundamentals? I think not. But it will be interesting to see how far he will let the story go.