ARTICLES FROM THE SUNDAY GUARDIAN
Copyright. All rights reserved. Ram Jethmalani. 2017.
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I am grateful to all my readers for their continued interest in knowing the real truth about the burning topic of black money. I am also greatly encouraged by the enthusiasm shown by social media in following the facts that remain uncovered by mainstream media.
The Finance Minister in the Rajya Sabha on 25 November proclaimed that he had been able to obtain 427 HSBC account holder's names, of which 250 had already admitted holding accounts abroad. While dwelling considerably on painstaking efforts that had at last yielded results which no previous government had been able to match, it was not elaborated on how the names originated in the first place, and persisted with the argument of the Double Taxation Avoidance Agreement (DTAA) and its obligation of confidentiality. But what are the facts?
These 427 HSBC account holders' names were among the many other names stolen from HSBC by whistleblower Herve Falciani (refer to my article on 9 November, Time to honour black money pledge), of which a small part were provided to us through possibly the French government. The whistleblower has offered thousands more names. But what is important to understand is that the names were not provided to us under the provisions of any Double Taxation Avoidance Treaty, and under no circumstances do they attract the confidentiality requirement, which seems to be becoming an extremely attractive enterprise, with commonality of interest for several protagonists cutting across party lines.
Interestingly, the Finance Minister was neither asked nor did he volunteer any information as to why the DTAA is being used at all, and why the ministry is reluctant to use the United Nations Convention Against Corruption (UNCAC). Even a law student or an informed lay person knows that the DTAA only applies when information is called under Section 90 of the Income Tax Act of India dealing with persons who on the same income are liable to pay tax in two or more countries.
I have already submitted to the Hon'ble Supreme Court that I propose to raise this issue before it, to put a final lid on assistance and co-operation being extended to powerful criminals who for reasons not difficult to comprehend, are exercising corrupt control on office holders in our government too. The opposition was not wrong in alleging that the BJP is now adopting Congress postures of the past.
I would now like to introduce my readers to a man whom I highly respect, Ajit Doval, presently the National Security Adviser. He has long been associated with the Vivekananda International Foundation, and is universally respected for his integrity and character. He was also member of the BJP Task Force on Black Money, which in its report of January 2011, termed the DTAA as an impotent instrument (refer my piece of 9 November). I wonder if the Ministry of Finance knows the existence of this excellent report.
Mr Doval wrote an article on 21.02.2011 with the title India's Plundered Money Abroad — Can We Get It Back?, which is available on the internet and should be read by all patriotic citizens following this issue. The concluding portion, "What could be done", suggests the following:
"a) Taking cognisance of reports of the IMF, GFI etc, the Government of India should enact a law emphasising that huge Indian capital has been illegally stashed away and needs to be ploughed back. It should be a penal law so that all the defaulters could be treated as criminals. On the strength of this law the government should declare itself as the sole owner and beneficiary of all Indian monies, assets and bank accounts held abroad by or the dependents of Indian nationals without due declaration to the Indian authorities. The law may provide that where the Indian nationals are able to prove that the assets held by them have been acquired through proper means and the non-declaration was merely a technical default; the government should restore the assets back to the claimant. It, however, should shift the onus of proof on the person who holds undeclared wealth abroad. On the strength of the said law, the Government of India can ask the world governments and the foreign banks, like the Swiss Banks, to recognise Indian government as the beneficiary of the undeclared wealth and freeze the accounts till the owners of the wealth are able to prove that they had acquired it by fair and from legally valid sources.
"b) On the basis of various expert reports and other credible information available, there are reasonable grounds to infer that a substantial portion of Indian illegal money stashed in foreign banks owes its origin to criminal activities like corruption, misappropriation of government funds, fraud, cheating, activities of organised criminal gangs, drug mafias, terrorist financing, ransoms etc. All these are cognisable offences punishable under criminal laws of India including the Indian Penal Code, Prevention of Corruption Act, The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, Foreign Exchange Management Act, The Narcotic Drugs and Psychotropic Substance Act, Money Laundering Act, The Smugglers and Foreign Exchange Manipulators Forfeiture of Property Act etc.
"Government of India should suo moto register an omnibus criminal case against suspected unidentified persons who have been indulging in criminal activities and unauthorisedly transferring the money to tax havens abroad. The case may be transferred to a special team of the CBI and investigated under supervision of the Supreme Court. They must register the FIR under various sections of the IPC, money laundering and anti-terror laws etc. Registration of the criminal case will enable the investigation agencies to summon people for questioning, interrogate suspected persons, seize incriminating documents, conduct raids, make arrests, examine documents etc.
"This would also enable the Government to get assistance of foreign police and investigating agencies for gathering requisite evidence and information. Most importantly, this will empower the government to approach different banks abroad, as also the concerned governments, for information regarding the money trail as they pertain to criminal cases."
Anyone who believes that national interest is paramount, and also possesses integrity, will see the force of these recommendations. Doval's suggestion for immediate legislation by Parliament should have been the first step to be taken by the Ministry of Finance, if it was really serious about repatriation of black money. While my readers will, no doubt, reflect upon why these clinching steps are not being taken, I propose to recommend this to the SIT as well as to the Hon'ble Supreme Court of India.
There is precedent for such legislation in the law enacted by Parliament after the Bhopal gas tragedy disaster — Act 2 of 1985 — which conferred certain powers on the Central government to secure claims arising out of the Bhopal gas leak disaster.
I have already written about some correspondence between the Government of India and the German authorities, which was supplied to me after orders of the Hon'ble Supreme Court made in March this year. These letters clearly establish that:
a) The DTAA was invoked first by Finance Minister P. Chidambaram, who sought information only about Indian taxpayers and not about the criminals who did not pay any tax at all.
b) India deliberately did not avail of the offer made by the German government to share information with any country without cost or condition, even though former Finance Minister Chidambaram was aware of this open offer.
c) The fact that names of signatories and addressees of the letters, and portions of content have been blacked out can only suggest criminal conspiracy on the part of the UPA government and serious offences of forgery.
d) The correspondence refers to an email dated 05.03.2008 from the Indian government to its German counterpart. This email has been suppressed and demonstrably false evidence has been created. A letter of 04.08.2008 has been altered and made to appear as the email of 05.08.2008.
Obviously the email is an explosive document that establishes conspiracy.
e) The previous government did not want any trace of evidence regarding any documents transmitted by the Germans in this matter to enter India. It therefore suggested that documents will be received by India in Bonn, Germany, where evidence could be destroyed and names concealed forever. That is why there is no evidence regarding receipt of documents, their number or subject, available in New Delhi. All these facts, per se, constitute serious cognisable offences and must lead to registering of proper FIRs and commencement of investigation, and if warranted, arrest and custodial interrogations. But no such steps have been taken till today.
A possible inference is that there may be a tacit understanding between some influential officeholders in the present government and their counterparts of the previous government. Some in the present dispensation are perhaps hesitant to expose the previous one, as some close to them may be vulnerable to exposure by the past dispensation. I leave it to the readers to decide.