Terms of reference of Modi govt's SIT on black money has "ignored" crucial directions by Supreme Court

MB Shah

By A Representative
Terms of reference (ToR) for the new special investigation team (SIT) on black money, set by the Narendra Modi government, is learnt to have missed two crucial directions given by the Supreme Court in July 2011. The Commonwealth Human Rights Initiative (CHRI), in a statement, has said that on page 66 of its judgement, the apex court had ordered 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”. At the same time, it had added, "The SIT should review concluded matters to assess whether investigations have been thoroughly and properly conducted, if they conclude is there a scope for further investigation”.
The CHRI says, “On May 1 the Government of India had said 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 eight and the investigation had been concluded against them…" It insists, "Technically, the ToR should have included reopening of these cases to assess whether everything was properly done and if there is any need to proceed further.” Signed by Venkatesh Nayak, programme coordinator, CHRI, the statement adds, “The current ToR published in the gazette do not explicitly refer to these two directions.”
Welcoming the setting up of the SIT as “a reversal of previous government policy on this subject”, Nayak says, “The previous Government had opposed this direction despite a clear order from the Supreme Court in 2011.” Headed by Justice (retd) MB Shah with Justice Arijit Pasayat as vice-chair, Nayak regrets, however, “The rest of the members are the same ex-officio senior 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 SIT is an outcome of the directions of the Supreme Court of India in the matter of Ram Jethmalani and Ors. vs Union of India and Ors judgment delivered in July 2011. 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”, Nayak points out, suggesting, this makes application of the RTI on SIT particularly important, especially when the SIT will be wholly financed by the Government of India.
The whole case, according to CHRI, was born because of an RTI application seeking “to disclose the names of the bank account-holders that Germany handed over to the Central Government”, Nayak says, adding, “The previous government adamantly refused to follow the directions of the court to hand over to the RTI petitioners the names of individuals against whom investigations had been completed wholly or partially.” Only “last month the Government of India handed over two sealed envelopes containing the names of the account-holders to the court”.
While the “court directed that the names be handed over to the petitioners”, the statement regrets, 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 publicise 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.”
Pointing out that the case is particularly important 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, the statement says, “In this case also the Government of India, under the UPA, refused to make the names of the account-holders public saying that Germany had handed over their names to Indian authorities under a tax agreement that contains a 'confidentiality' clause.”