Much ado about nothing
The ensuing debate, legally speaking, has clearly no far-reaching effect inasmuch as applying the provisions of Foreign Exchange Management Act (FEMA) 1999, Passport Act 1967, Income Tax Act 1961, and more importantly, the extradition treaty executed between the Government of India and the Government of UK, I would definitely like to bat for Lalit K. Modi, who cannot be termed a defaulter inasmuch as if we go by the provisions FEMA 1999 - a defaulter is a person who has already been adjudicated upon, and is directed to pay a certain penalty but has declined to pay the same. In the present case, adjudication process is not yet over nor has Lalit K. Modi been imposed any penalty, and if he fails to pay the same, only then can he at most be slapped with a sentence for civil imprisonment. It would not be out of place to mention that under Section 13 of FEMA,1999, is the adjudicating authority has no power to arrest. It only prescribes for the imposition of penalty and upon failure of the same penalty, an arrest warrant can be issued under Section 14. In other words, since there is no adjudication by the authority nor any penalty imposed. The last thing that one can expect from the Government of the day is to arrest Lalit K. Modi under Section 14 of FEMA, 1999.
Secondly, under the provisions of the Passports Act,1967, also in general and in Section 10(3)(c) of the aforesaid Act, it says, “if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public”; therefore plain simple reading of the aforesaid provision, one cannot construe that he has violated any of the mandatory requirement of The Passport Act, 1967, hence to say that his passport needs to be impounded is actually too much to ask for. Relying upon the judgement of Maneka Gandhi v. <g data-gr-id="61">Union of India</g> (1978), 1 SCC 248/ (MANU/SC/0133/1978), the division bench of the Delhi High Court in Re Lalit Kumar Modi v. Union of India 213 (2014) DLT 504 has restored his passport as same was done with a mala fide intention.
Thirdly, though there still remains a lot of controversy to be resolved, about which corner notice was issued against Lalit K. Modi, assuming light blue or blue or red corner notice, even if it was allegedly issued against him, same cannot sustain in the eyes of law simply because, it does not fall under the criteria and the norms prescribed by the INTERPOL, which are published by the General Secretariat of ICPO. INTERPOL can act upon only when there are requests made by National Central Bureaus (NCB) or authorised international entities such as the United Nations and International Criminal Courts.
Fourthly, any help provided by Sushma Swaraj in July 2014, informing the British Authorities that relation with India would not be affected if travel documents are issued to Lalit Modi as per their own law, could not be considered illegal till the time he is convicted, or an arrest warrant is issued against him, or he is declared an absconder. There is no gain in saying the fact that the conduct of the Ministry External Affairs in acting upon a request made by a so-called fugitive like Lalit K. Modi can only be termed as impropriety but no illegality can be attached to it. Maximum that one can expect from Indian authorities, if every allegation made today, is found to be correct, necessary steps under the Extradition Treaty between India and UK can be taken, the crux of which, basically deals with criminal liability. Lalit Modi has been given show-cause notices for alleged contraventions of FEMA which are essentially civil in nature. Thanks to the repealing of Foreign Exchange Regulation Act, that would have otherwise invited criminal charges against him, had any devil mind in the political circle, worked against his interest.
Last but not the least, it can be corroborated that a Red Corner Notice could not have been served on him for one simple reason, it is just like a non-bailable warrant which thwarts one’s personal liberty. Moreover, if we go by the definition of extradition in the famous words of Oppenheim, it means “the delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed, or to have been convicted of, a crime by the State of whose territory the alleged criminal happens for the time to be.” The right to demand extradition and the duty to surrender an alleged criminal to the demanding State is created by a treaty, which can be given effect to only when the accused is convicted, the state where crime is committed, can ask for the extradition of such accused person. Hence, on this ground also, the entire case against Lalit Modi, will fall like a pack of cards.
That said, the U.K Government has not committed any violation of the Treaty in question or of any laws of extradition as such. Hence, most of you probably will agree that indeed there is much ado about nothing.
(The writer is an advocate with the Supreme Court)