Copyright. All rights reserved. Ram Jethmalani. 2019.
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Whether it was the previous government or the present one, my battle for the return of our national wealth illegally parked in foreign banks, estimated to be around US $ 1,500 billion, equivalent to Rupees 90 lakh crores, back to our national coffers continues unabated. My battle arises out of absolute moral compulsion, and I believe it would be a betrayal of the Indian nation if I do not persist with it, even though it has become more and more a lone battle. Undoubtedly, the promise to repatriate this money was loudly and repeatedly announced in every part of the country throughout the election campaign. Despite Amit Shah now terming this election promise as an ‘election jumla’, and despite the Prime Minister's studied silence, this election promise was substantially responsible for the electoral victory of the BJP and the enhancement of the stature of Narendra Modi as Prime Minister.
I am quite sure that even before he entered the electoral contest, Prime Minister Modi would have been briefed adequately about the Supreme Court judgment of 04.07.2011 in what has come to be called the "Black Money" case. This case resulted from a petition filed by me and other distinguished citizens of India in April 2009. My dear friend and able counsel Mr. Anil Divan agreed to represent us before the court. This petition had been filed around the same time when Mr. Arun Jaitley became the Leader of Opposition in the Rajya Sabha.
Two reasons compelled me to launch this unusual litigation. First, as a lawyer of some long standing I knew that Indian wealth was being siphoned out of India and concealed in various forms including cash deposits in banks located in countries which allowed their banks to enforce the Customer Confidentiality regulations and practices. These regulations are nothing but a bank guarantee to any criminal depositing his illegal wealth in a foreign bank, that details of his deposit would not be disclosed to anyone else. These countries were known as Tax Havens, the more notorious being Switzerland, Cayman Islands, Mauritius, Singapore and Hong Kong. Every informed person has known of their existence since decades and all civilised governments were aware that customer confidentiality regulations protected criminals and contributed to the poverty of several nations. Except perhaps the present Finance Minister of India who glibly replied to a Rajya Sabha question on 15.07.2014 that "The Government has not identified any country as tax haven."
Unchecked tax havens were becoming a serious, scandalous international issue. In December 2000, the UN started drafting the United Nations Convention Against Corruption (UNCAC), which was finalized in 2004. The Convention unequivocally expresses concern about the threats posed by corruption to the stability and security of societies and all democratic and ethical values, and urged all states and other economic organisations to sign and ratify it as soon as possible. The Convention contains detailed articles regarding preventive measures, and criminalisation and law enforcement in which Article 40 expressly provided that “each state party shall ensure that in criminal investigations relating to corruption the domestic law of every state shall overcome all obstacles that may arise out of the application of bank secrecy laws.” It provides for international cooperation in investigations and proceedings in matters relating to corruption both civil and criminal and also asset recovery, and compels banks to verify the identity of customers and the real beneficial owners, particularly high value accounts and public servants.
As a practitioner of law and active Member of Parliament I had kept myself in touch with the progress of this convention. India signed this convention in 2005, but that was not enough, as no UN Convention becomes final until it is ratified by the State. The Manmohan Maino Government only ratified this Convention in 2011, after my fierce criticism, just a few weeks before the Supreme Court judgment in my case was expected. They used this ratification as a bogus argument to convince the Supreme Court that they were serious about recovering the black money and that my allegations against them in Supreme Court were not correct.
The second reason for my action arose out of a remarkable job done by the German Government, which in 2008 had by bribing an ex-employee of Liechtenstein Bank obtained a DVD containing data of 1,400 clients of the bank who were using this Alpine tax haven to plunder money from their own countries. On 26.02.2008 the German Finance Ministry spokesman Thorsten Albig publicly announced that the German Government would be willingly to share the information at no cost, if any country asks for it. I was stunned that neither the UPA Government asked for the information, nor did the Opposition leaders agitate for it. Admiral Tahiliani, President of the Indian Chapter of Transparency International based in Germany, publicly expressed his resentment at this inaction and strongly advised the Government of India to take advantage of the German offer. Professor Vaidyanathan of IIM Bangalore, an expert on the subject, wrote in Eternal India in April 2009 about the tragedy of Indian leadership. I also learnt from the press that the U.S government made use of the German offer and levied a penalty of US$ 800 million on the UBS Bank Switzerland, in addition to the bank disclosing secret accounts of 300 Americans.
Though I always suspected that the UPA Government was sabotaging every move regarding the repatriation of black money from abroad, for shielding the corrupt within itself, why was the BJP totally silent when it should have been proactive? All I can say is that I was ashamed of both the Government of India, and leading BJP politicians, many of whom were dreaming of becoming the future Prime Minister of India. The only politician who showed serious concern about this issue was Narendra Bhai, and after that I supported him to the hilt.
The Supreme Court delivered its judgment on 04.07.2011, and in addition to its findings and directions, it held the Finance Minister completely responsible for creating an appropriate infrastructure and other facilities for proper and effective functioning of the Special Investigation Team, immediately.
Now Mr. Finance Minister, I am entitled to seek answers to questions which relate to performance of your obligations under the judgment of the Supreme Court. I ask not merely as a citizen of India and Member of Parliament, but also as the petitioner before the Supreme Court in this matter, who has a legitimate interest in the functioning of the SIT. Yes, you may recall my regular public interrogation of the late Rajiv Gandhi on the Bofor’s scandal that lasted thirty days. Let us see how satisfactory your replies are, so that I can put my doubts about you at rest. And of course, if you don't reply, I will draw my own inferences. Only some questions can fit the space available to me, but more will follow.