Notification issued by the government defining the Terms of Reference of the SIT
The Government of India has published in the Official Gazette the Terms of Reference (ToR) of the Special Investigation Team it has set up to investigate the issue of black money stashed abroad by Indians (see Notification at the end). 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 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 Joint Secy. (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 (ToR) seemingly omit an important 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:
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) 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 01 May 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. You will 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 judgement 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 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.
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) Any person who, does not receive a decision within the time specified in sub¬section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority: Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. 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) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order. Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order. 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) Any person who, does not receive a decision within the time specified in sub¬section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority: Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (a), it can also be restricted only on grounds mentioned in Article 19(2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order. Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order. and the RTI Act but no other ground would be valid.
Readers will recognise 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.
Readers may like to watch with great interest how transparently the SIT will be functioning in the days to come.
MINISTRY OF FINANCE
(Department of Revenue)
New Delhi, the 29th May, 2014
F. No. 11/2/2009-Ad. E.D.
—In pursuance of the Order dated 4.7.2011 of Hon’ble Supreme Court of India passed in Writ Petition (Civil) No. 176 of 2009, Central Government in the Ministry of Finance, Department of Revenue hereby constitutes the Special Investigation Team, comprising of the following :-
a) Hon’ble Mr. Justice M.B. Shah, former Judge of Supreme Court — Chairman
b) Hon’ble Mr. Justice Arijit Pasayat former Judge of Supreme Court — Vice Chairman
c) Revenue Secretary — Member
d) Deputy Governor, Reserve Bank of India — Member
e) Director (IB) — Member
f) Director, Enforcement Directorate — Member;
g) Director, CBI — Member;
h) Chairman, CBDT — Member ;
i) Director General, Narcotics Control Bureau—Member ;
j) Director General, Revenue Intelligence — Member;
k) Director, Financial Intelligence Unit — Member;
l) Joint Secretary (FT & TR-I), CBDT — Member and
m) Director, Research and Analysis Wing — Member.
2. The terms of references of the Special Investigation Team will be as per order dated 04.07.2011 of Hon’ble Supreme Court and includes as under:-
(i) The Special Investigation Team shall function under the guidance and direction of Chairman and Vice Chairman.
(ii) The said Special Investigation Team shall be charged with the responsibilities and duties of investigation, initiation of proceedings, and prosecution, whether in the context of appropriate criminal or civil proceedings of :-
a) all issues relating to the matters concerning and arising from unaccounted monies of Hassan Ali Khan and the Tapurias;
b) all other investigations already commenced and are pending, or awaiting to be initiated, with respect to any other known instances of the stashing of unaccounted monies in foreign bank accounts by Indians or other entities operating in India; and 4 THE GAZETTE OF INDIA : EXTRAORDINARY [PART I—SEC. 1]
c) all other matters with respect to unaccounted monies being stashed in foreign banks by
Indians or other entities operating in India that may arise in the course of such investigations
(iii) It is also the responsibility of SIT to ensure that the matters are also investigated, proceedings initiated and prosecutions conducted with regard to criminality and/or unlawfulness of activities that may have been the source for such monies, as well as the criminal and/or unlawful means that are used to take such unaccounted monies out of and/or bring such monies back into the country, and use of such monies in India or abroad.
(iv) The Special Investigation Team shall also be charged with the responsibility of preparing a comprehensive action plan, including the creation of necessary institutional structures that can enable and strengthen the country’s battle against generation of unaccounted monies, and their stashing away in foreign banks or in various forms domestically.
3. The said Special Investigation Team should be responsible to the Hon’ble Supreme Court and that it shall be charged with the duty to keep Supreme Court informed of all major developments by filing of periodic status reports and following of any special orders that Supreme Court may issue from time to time;
4. All organs, agencies, departments and agents of the State, whether at the level of the Union of India, or the State Government, including but not limited to all statutorily formed individual bodies, and other constitutional bodies, extend all the cooperation necessary for the functioning of Special Investigation Team.
5. The Union of India and where needed the State Governments will facilitate the conduct of the investigations, in their fullest measure, by the Special Investigation Team and functioning, by extending all the necessary financial, material, legal, diplomatic and intelligence resources, whether such investigations or portions of such investigations occur inside the country or abroad.
6. The Special Investigation Team also empowered to further investigate even where charge-sheets have been previously filed; and that the Special Investigation Team may register further cases, and conduct appropriate investigations and initiate proceedings, for the purpose of bringing back unaccounted monies unlawfully kept in bank accounts abroad.
7. Remuneration, allowances, facilities etc. for Hon’ble Mr. Justice M.B. Shah and Hon’ble Justice Arijit Pasayat, appointed as Chairman and Vice Chairman to supervise the Special Investigation Team shall be as per judgement dated 4.7.2011. The Department of Revenue, Ministry of Finance, Government of India will be responsible for creating the appropriate infrastructure and other facilities for proper and effective functioning of the Special Investigation Team.
8. JS(R) Department of Revenue, Ministry of Finance would be Member-Secretary of SIT.
9. This notification is subject to the outcome of the Review Petition Pending in the Supreme Court.
M. L. MEENA, Jt. Secy. (Revenue)