My frustration about repatriation of Black Money and contempt for this unpardonable betrayal

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.

• Question 1 – Have you carefully read the judgment of the Supreme Court, and the directions it gave to the then government in power which in substance means your predecessor in office, Mr. Chidambaram?
• Question 2 - Did you as MP and LOP in Rajya Sabha care to see whether the judgment was being followed?
• Question 3 - Are you willing to admit that socially, politically and economically you have more than normal cordial relations with Chidambaram and the NDTV Management, and that you have had no occasion whatsoever to find fault with the manner in which Chidambaram performed his national duty to recover black money?
• Question 4 - Do you admit that after becoming Minister of Finance all that you have done as disclosed in your reply in Parliament on 08.07.2014 is entering into ‘Amended Double Taxation Avoidance’ treaties?
• Question 5 – Do you really understand the meaning and implications of the 'Amended Double Taxation Avoidance Treaty' contemplated under Section 90 of the Income Tax Act? Note that this amendment is the first of its kind in our country, and the motives are not far to seek. Do you know that the DTAT only applies to legitimate businesses which according to laws of more than one State are liable to pay tax on the same income? Do you realize that obtaining information under the amended DTAT completely abandons the United Nations Convention against Corruption, which is specifically drafted for obtaining information about money launderers? Do you know that under the ‘amended double taxation treaty’ only prospective information can be asked for, and not information prior to signing of the treaty?
• Question 6 - How many amended double taxation treaties have you entered into till date after becoming the finance Minister?
• Question 7 - Why have you not availed of the German offer to share information about the 1400 Liechtenstein Bank account holders, which the Supreme Court has dealt with in Paras 64 and 65 of its judgment? This disclosure has nothing to do with the double taxation avoidance treaty. Do you know that the USA has used this information and collected penalties from a bank and the disclosure of more names as part of the punishment?
• Question 8 - Have you learnt by now that the Supreme Court has ordered the correspondence between the Government of India and Germany about the Liechtenstein Bank names to be disclosed?
• Question 9 - Do you know that only recently about 17 letters were disclosed by Solicitor General to the Supreme Court, and these letters, both incoming or outgoing have names of the authors and addresses blacked out in an irretrievable manner? Have you taken any steps to find out who these forgers are, and do you realise they are the ones who should be interrogated and almost certainly arrested?
• Question 10 - Have you read the Supreme Court’s interpretation about the so called confidentiality clause in the DTAT with Germany, explaining the restricted nature of the prohibition of disclosure?
• Question 11 - Have you read the report 'Indian Black Money Abroad in Secret Banks and Tax Havens', 2011, by the BJP Task Force which included Prof. Vaidyanathan and your friend Gurumurthy, which clearly advised that recourse to DTAT is wholly useless and futile?
• Question 12 – Was the statement of the new BJP President, Shri Amit Shah, that the promise of repatriation of black money was a mere election ‘jumla’, made with your concurrence? You have never disowned it, and neither has anyone else in the government. This is confession enough of an intentional fraud on the nation.