'I am ashamed of Centre, BJP leadership on black money'

My battle for the restoration of black money illegally siphoned off abroad, estimated to be around US $ 1,500 billion, equivalent to Rs 90 lakh crore, back to our country arises out of absolute moral compulsion.

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 made to the nation throughout the election campaign, and was substantially responsible for the BJP’s grand election victory and enhancement of Narendra Modi’s stature as prime minister.
The “black money” case, and the Supreme Court judgment of July 4, 2011, resulted from a petition filed by me and other distinguished citizens of India in April, 2009. Two reasons compelled me to launch this unusual litigation. First, as a lawyer of some standing, I knew that Indian wealth was being siphoned out of India and concealed in various forms in countries such as Switzerland, Cayman Islands, Mauritius, Singapore and Hong Kong, which allow their banks to enforce ‘Customer Confidentiality’ regulations and practices. These countries were known as tax havens, contributing to the poverty of several nations.

Surprisingly, however, the finance minister replied to a Rajya Sabha question on July 17, 2014 that, “The government has not identified any country as tax haven.”  Unchecked tax havens were becoming a serious, scandalous international issue. In December 2004, the United Nations Convention Against Corruption (UNCAC) was finalised and it detailed articles regarding preventive measures and criminalisation and law enforcement.

As a practitioner of law and an active MP, I had kept myself in touch with the progress of this convention. India signed this convention in 2005, but no UN Convention becomes final until it is ratified by the State. The UPA government ratified this Convention in 2011, after my fierce criticism, just a few weeks before the Supreme Court judgment in my case was expected.

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 February 26, 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.

The tragedy of Indian leadership was lamented both by Admiral Tahiliani, President of the Indian chapter of Transparency International based in Germany, and Professor Vaidyanathan of IIM-Bangalore, an expert on the subject. I also learnt from the press that the US 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 am 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.

FM responsible

The Supreme Court delivered its judgment on July 4, 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.

As a petitioner before the Supreme Court in this matter, I have asked the FM several questions regarding his obligations under the judgment of the SC – all of which are on my Facebook page – mainly, why he was persisting with his predecessor’s ruse of invoking the amended ‘Double Taxation Avoidance Treaty’ (DTAT), that apply only to legitimate businesses which according to laws of more than one state are liable to pay tax on the same income, and not the United Nations Convention, which was specifically drafted for obtaining information about money launderers. More so, since under the amended DTAT, only prospective information can be asked for, and not information prior to signing of the treaty.

I also asked why we had not availed of the German offer to share information about the 1,400 Liechtenstein Bank account holders, (this disclosure has nothing to do with the double taxation avoidance treaties), especially since the USA has used this information and collected huge penalties from a bank and the disclosure of more names as part of the punishment.

I must also inform readers that after the SC ordered that the correspondence between the Government of India and Germany about the Liechtenstein Bank names be disclosed, 17 letters were disclosed by Solicitor General to the Supreme Court, in which names of the authors and addresses in incoming and outgoing correspondence were blacked out in an irretrievable manner. I’m not aware of any action being taken or any interrogation to discover who the forgers were.

Unfortunately, I have received no reply from anyone in the government on any of my questions. I can only recall the outrageous, supercilious statement made by Amit Shah, BJP president, during the ill-fated Delhi elections that the promise to repatriate black money was a mere election ‘jumla’. No one has contradicted this statement yet. So, my fight goes on.

(The writer is Senior Advocate, Supreme Court and Member, Rajya Sabha)