ARTICLES FROM THE SUNDAY GUARDIAN
Copyright. All rights reserved. Ram Jethmalani. 2018.
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his piece is being written to help the SIT investigations into black money, and it is my right and duty as the petitioner who has obtained from the Hon'ble Supreme Court the historic judgment of July 2011 to neutralise all efforts, intentional or just the product of ignorance and inefficiency, calculated to make a mockery of the judgment and let dacoits have the last laugh. I normally do not quote other newspapers in my piece, but for the sake of convenience I am borrowing the following facts from a piece which appeared in the Hindustan Times of 29 October with the title: Black money list: 'Some unanswered Questions about the 627 names.'
One Herve Falciani, a whistleblower who worked for the HSBC Geneva branch, stole the names and information of nearly 25,000 potential fraudsters having accounts in the bank and supplied them to the Government of France. The French shared the information with other countries. France itself earned 168 million euros (3,000 names from the list), Spain 260 million euros (700 names), and UK 135 million Pounds(4000 names).
This unfortunate nation got 627 names, but not a farthing was recovered, nor a single name disclosed to the sovereign of this country "The People", making a joke of the Republic of India. Hindustan Times reports that 800 names were received. What happened to the missing 173? Perhaps the Finance Ministry knows. I join in asking the same question and some more too. When were these names received by India; what was the correspondence that took place before and after the receipt of the names and what steps were taken to use this information by the UPA government and after May 2014 by the new government? It is the conduct of some of our rulers that fully explains and justifies the people's passionate demand for disclosure, to enable them to decide which ruler is really a collaborator in crime or not.
Now we leave the French disclosure for the time being and get back to the Government of Germany. Our governments have been aware for long that the German government in February 2008 made a public statement in newspapers circulating throughout the world that it will provide to other countries, details of relevant clients from the DVD obtained by them from an ex-employee of the bank on payment of roughly US $475 million. The DVD contained names of 1,400 clients of the Liechtenstein Bank. The German Finance Ministry spokesman, Thorsten Albig said they will willingly share this information at no cost and condition to any requesting country.
Most educated citizens have known that the prestigious Swiss magazine called the Swiss Illustrierte had announced in 1991 the names, the photographs, the account numbers and the concealed loot in their accounts of 14 international crooks amongst whom the late, then recently killed, Prime Minister of India was one. Did this produce any response in India? I know of none.
In March 2014, in the midst of the hot election campaign I personally went to Germany and on my return recorded my discussions with the highest in the German ministry and the promise which I received from them about sharing this information with us. This letter was sent to BJP leaders and I am waiting to see what is being done to recover the loot.
An obviously anxious member of the Rajya Sabha, Sh. Shantaram Naik asked on 08.07.2014:
Will the Minister of Finance be pleased to state:
(a) whether Government has made any request regarding black money held by Indian nationals in Swiss bank;
(b) when the request was sent and what was the information sought;
(c) whether it is a fact that Parliament of Swiss Government has passed a law called, 'The Swiss tax Administrative Assistance Act';
(d) If so, when this Act was passed.
(e) whether the changes to be brought in under the law have to be approved through a referendum; and
(f) the details of response given by the Swiss Government in this regard, so far?"
The answer (a) is in the affirmative, a clear 'Yes, Sir'.
The answer to (b) is that after 7 October 2011, when the Double Taxation Avoidance Convention came into force, several requests have been made. This obviously refers to the old government now displaced. The Hon'ble member obviously wanted to know whether the new government brought into existence has taken any steps. One would expect a frank answer. The Parliamentary record of the answer contains the following sentence, "After the amendments to the Double Taxation Avoidance Convention (DTAC) with Switzerland came into force on 7th October, 2011, several requests seeking information in respect of Indian Nationals holding bank accounts in Swiss Banks in specific cases have been made. There has been a positive response to some requests, where information has been provided subject to the confidentiality clause in the said DTAC. In other cases, the Swiss Government has not been providing the information requested citing restrictions imposed by their domestic laws... A letter was accordingly written to Swiss Authorities on 23rd June, 2014 under the provisions of Article 26 of the DTAC between India and Switzerland, requesting them to provide the information in this regard that has been compiled by Switzerland. The Swiss authorities in their reply dated 4th July, 2014 have stated that there is no list of Indian Tax residents holding assets in Swiss financial institutions in their own names or through structures."
The SIT, the nation and the Hon'ble Supreme Court would like to see who invoked the amended DTAA and when they got the specific names from Germany. The new government had not yet come in and all this must be the handiwork of the previous one. The correspondence, if found genuine, will alone show that the DTAA was invoked not by the German but by the Indian government. Article 26, which is mentioned in the reply, does not deal with the right to information but to the information when supplied. It cannot be that any honest government would ask for the information under Article 26, unless it is determined unasked not to disclose it to anyone.
I must now draw attention to the second report of the task force of the BJP on "the steps to be taken by India" in the matter of "Indian Black Money Abroad in Secret Banks and Tax Havens", running into 95 pages. Particularly to Para XIII, "The Double Taxation Treaty with Switzerland," which at page 26 describes the Double Taxation Treaty as an impotent instrument. Of course when this report was written in January 2011, the ratification of United Nations Convention Against Corruption (UNCAC) by India had not taken place, though many other countries had ratified it long before.
Fortunately, before the installation of the Narendra Modi government, India did ratify this when the Manmohan Singh government was still in power. We have only to use this Convention and nothing else. The DTAA was the favourite device of the previous government and our government blindly copied its corrupt actions.
Finance Minister Pranab Mukherjee, our President now, had recommended the use of this useless document in his otherwise useless white paper on black money. Unfortunately, people do not know that his white paper was itself called a black paper. I want, what I lovingly consider our government, to take steps to fulfil its pledge to the people of India.
Wait for more information about the conduct of the collaborators of the culprits.