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By Venkatesh Nayak*
The Government of India has published in the Official Gazette the Terms of Reference (ToR) of the Special Investigation Team (SIT) it has set up to investigate the issue of black money stashed abroad by Indians. The setting up of the SIT amounts to a welcome reversal of previous government policy on this subject. The previous government had opposed this direction despite a clear order from the Supreme Court in 2011. The SIT will be headed by Justice (Retd) M B Shah with Justice Arijit Pasayat as Vice-Chair. The rest of the members are the same ex officiosenior bureaucrats who were part of the High Level Committee set up by the previous Government to look into the cases of persons who were said to have stashed away money in foreign banks abroad. The Joint Secretary (Revenue) has been added to this list as Member Secretary of the SIT.
This SIT is an outcome of the directions of the Hon’ble Supreme Court of India in the matter of Ram Jethmalani and Ors. vs Union of India and Ors., (2011) 8 SCC 1- judgement delivered in July 2011. It is also interesting to note that with the exception of the retired judges and bureaucrats of the Finance Ministry, all other members are representatives of organisations notified under the Second Schedule of the Right to Information Act, 2005 (RTI Act) which are not required to furnish any information other than that pertaining to allegations of corruption or violation of human rights.
However, in my opinion, as the SIT has been set up by a notification of the Central Government and as it will be wholly financed by the same Government, it will be a public authority under the RTI Act.
1) that the SIT must take over the investigation of individuals with bank accounts in Liechtenstein as disclosed by Germany to India and expeditiously conduct the same; and
2) that SIT should review concluded matters also to assess whether investigations have been thoroughly and properly conducted or not and if they conclude that there is scope for further investigation they should proceed further.
On May 1 this year the Central Government had said that investigations had been concluded against 18 of the 26 individuals that had bank accounts in Liechtenstein. These names were received from Germany and investigation had concluded in 17 cases. No evidence was found against 8 individuals and the investigation had been concluded against them. One can find this information in the daily order of the Apex Court at http://judis.nic.in/temp/17620093152014p.txt.
So, technically the ToR should have included reopening of these cases also to assess whether everything was properly done and if there is any need to proceed further. The current ToR published in the Gazette do not explicitly refer to these two directions. However I hope the SIT in its wisdom will interpret its mandate broadly to cover these directions as well and make up for what probably is an omission due to oversight.
The NDA Government could change policy in this regard as well and publicize the names contained in the sealed envelopes, as it would only be dutifully following the directions of the Court. Such a step would demonstrate the NDA government’s commitment to transparency as a real one going beyond mere public relations exercises.
This case is also of great use for all RTI users and activists who receive rejection orders from Public Information Officers (PIOs) and First Appellate Authorities on the ground that contracts with private parties contain confidentiality clauses and cannot be disclosed under the RTI Act. In this case also the Government of India, under the United Progressive Alliance, refused to make the names of the accountholders public saying that Germany had handed over their names to Indian authorities under a tax agreement that contains a ‘confidentiality’ clause. The Apex Court examined the relevant clause of the treaty and came to the following conclusion:
1) that the tax agreement did not prohibit disclosure of information provided by one signatory to another if it was required in a judicial proceeding; and
2) that confidentiality clauses contained in international treaties and agreements are not to be interpreted as set in stone. Instead they must be tested against the concept and practice of the rule of law guaranteed by the Indian Constitution and most importantly the right to freedom of speech and expression guaranteed under Article 19(1) and the right to seek redress for violation of fundamental rights guaranteed under Article 32 of the Constitution. The confidentiality clause would be tolerated only if it matched any of the grounds mentioned in Article 19(2) for imposing reasonable restrictions on the citizens’ right to freedom of speech and expression. As RTI is a deemed fundamental right under Article 19(1)(a), it can also be restricted only on grounds mentioned in Article 19(2) and the RTI Act but no other ground would be valid.
Readers will recognize that the Indian Government signs bilateral or multilateral treaties and agreements in exercise of its sovereign functions. When confidentiality clauses contained in such agreements are subject to the fundamental right to free speech and expression and consequently RTI, confidentiality clauses contained in commercial agreements with private parties that public authorities enter into during the routine course of government business must also be interpreted along the same lines. The mere existence of a ‘confidentiality’ clause in a contract with one or more private parties is not enough to reject a request for copies of the contract under the RTI Act.
This is a landmark interpretation of the Apex Court and if applied in letter and spirit can open up to public scrutiny a whole range of contracts and agreements that the Government signs with private parties. Public-Private Partnership (PPPs) agreements would have to meet this test before the public authority concerned can refuse access to such agreements.
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*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative
The Government of India has published in the Official Gazette the Terms of Reference (ToR) of the Special Investigation Team (SIT) it has set up to investigate the issue of black money stashed abroad by Indians. The setting up of the SIT amounts to a welcome reversal of previous government policy on this subject. The previous government had opposed this direction despite a clear order from the Supreme Court in 2011. The SIT will be headed by Justice (Retd) M B Shah with Justice Arijit Pasayat as Vice-Chair. The rest of the members are the same ex officiosenior bureaucrats who were part of the High Level Committee set up by the previous Government to look into the cases of persons who were said to have stashed away money in foreign banks abroad. The Joint Secretary (Revenue) has been added to this list as Member Secretary of the SIT.
This SIT is an outcome of the directions of the Hon’ble Supreme Court of India in the matter of Ram Jethmalani and Ors. vs Union of India and Ors., (2011) 8 SCC 1- judgement delivered in July 2011. It is also interesting to note that with the exception of the retired judges and bureaucrats of the Finance Ministry, all other members are representatives of organisations notified under the Second Schedule of the Right to Information Act, 2005 (RTI Act) which are not required to furnish any information other than that pertaining to allegations of corruption or violation of human rights.
However, in my opinion, as the SIT has been set up by a notification of the Central Government and as it will be wholly financed by the same Government, it will be a public authority under the RTI Act.
Terms of Reference omit court direction:
While going through the ToR, I found that a crucial direction given by the Supreme Court in July 2011 is missing from the Gazette notification published by the Central Government. On page 66 of its judgement the Apex Court had ordered two more things to be done by the SIT in addition to what it said on pages 38-42 (1st attachment):1) that the SIT must take over the investigation of individuals with bank accounts in Liechtenstein as disclosed by Germany to India and expeditiously conduct the same; and
2) that SIT should review concluded matters also to assess whether investigations have been thoroughly and properly conducted or not and if they conclude that there is scope for further investigation they should proceed further.
On May 1 this year the Central Government had said that investigations had been concluded against 18 of the 26 individuals that had bank accounts in Liechtenstein. These names were received from Germany and investigation had concluded in 17 cases. No evidence was found against 8 individuals and the investigation had been concluded against them. One can find this information in the daily order of the Apex Court at http://judis.nic.in/temp/17620093152014p.txt.
So, technically the ToR should have included reopening of these cases also to assess whether everything was properly done and if there is any need to proceed further. The current ToR published in the Gazette do not explicitly refer to these two directions. However I hope the SIT in its wisdom will interpret its mandate broadly to cover these directions as well and make up for what probably is an omission due to oversight.
Importance of this case to RTI:
Readers who have gone through the Supreme Court’s judgment, and those who may like to read it now, will notice that this appeal case arose from an RTI application made by the petitioners to disclose the names of the bank accountholders that Germany handed over to the Central Government. The previous government adamantly refused to follow the directions of the court to hand over to the petitioners the names of individuals against whom investigations had been completed wholly or partially. Last month the government handed over two sealed envelopes containing the names of the accountholders to the Court. The court again directed that the names be handed over to the petitioners. These names have not been made public by the government, officially, till date. There is no reference to this direction in the ToR of the SIT either.The NDA Government could change policy in this regard as well and publicize the names contained in the sealed envelopes, as it would only be dutifully following the directions of the Court. Such a step would demonstrate the NDA government’s commitment to transparency as a real one going beyond mere public relations exercises.
This case is also of great use for all RTI users and activists who receive rejection orders from Public Information Officers (PIOs) and First Appellate Authorities on the ground that contracts with private parties contain confidentiality clauses and cannot be disclosed under the RTI Act. In this case also the Government of India, under the United Progressive Alliance, refused to make the names of the accountholders public saying that Germany had handed over their names to Indian authorities under a tax agreement that contains a ‘confidentiality’ clause. The Apex Court examined the relevant clause of the treaty and came to the following conclusion:
1) that the tax agreement did not prohibit disclosure of information provided by one signatory to another if it was required in a judicial proceeding; and
2) that confidentiality clauses contained in international treaties and agreements are not to be interpreted as set in stone. Instead they must be tested against the concept and practice of the rule of law guaranteed by the Indian Constitution and most importantly the right to freedom of speech and expression guaranteed under Article 19(1) and the right to seek redress for violation of fundamental rights guaranteed under Article 32 of the Constitution. The confidentiality clause would be tolerated only if it matched any of the grounds mentioned in Article 19(2) for imposing reasonable restrictions on the citizens’ right to freedom of speech and expression. As RTI is a deemed fundamental right under Article 19(1)(a), it can also be restricted only on grounds mentioned in Article 19(2) and the RTI Act but no other ground would be valid.
Readers will recognize that the Indian Government signs bilateral or multilateral treaties and agreements in exercise of its sovereign functions. When confidentiality clauses contained in such agreements are subject to the fundamental right to free speech and expression and consequently RTI, confidentiality clauses contained in commercial agreements with private parties that public authorities enter into during the routine course of government business must also be interpreted along the same lines. The mere existence of a ‘confidentiality’ clause in a contract with one or more private parties is not enough to reject a request for copies of the contract under the RTI Act.
This is a landmark interpretation of the Apex Court and if applied in letter and spirit can open up to public scrutiny a whole range of contracts and agreements that the Government signs with private parties. Public-Private Partnership (PPPs) agreements would have to meet this test before the public authority concerned can refuse access to such agreements.
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*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative
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