Over three years ago, the Supreme Court had described as “disingenuous” the then UPA government’s argument, now being parroted by the Narendra Modi government, that the “confidentiality” clause in the Double Taxation Avoidance Agreement (DTAA) between India and Germany came in the way of disclosing names of those who had parked their black money in Liechtenstein’s LGT Bank.
Finance Minister Arun Jaitley repeated the line on Oct 17 that the “confidentiality” clause in the DTAA signed by the Congress-led central government in 1995 came in the way of making public the names of account holders revealed by the German authorities.
This is what the Supreme Court had said in July 4, 2011: “It is disingenuous. to repeatedly claim that it is unable reveal the documents and names. on the ground that the same is proscribed by the agreement.”
“We have perused the agreement with Germany. We are convinced that the agreement, by itself, does not proscribe the disclosure of the relevant documents and details of the same, including the names of various bank account holders in Liechtenstein,” it had said.
It did not matter, the court said, that Germany may have asked India to treat information shared as being subject to the confidentiality and secrecy clause of the DTAA. “It is for the Union of India and the courts, in appropriate proceedings, to determine whether such information concerns matters that are covered by the Double Taxation Avoidance Agreement or not,” the court had maintained.
Three years down the line not much seems to have changed on the ground, though the BJP may have replaced UPA in power in New Delhi with a whopping majority. The union government’s position remains as “disingenuous” as pointed out by the apex court.
Jaitley said that the government would make public the names of account holders after charge-sheets were filed after investigation by the tax authorities – a UPA stand that the BJP has repeatedly mocked both within and outside parliament.
The party had declared in 2011, through then spokesman and present Information and Broadcasting Minister Prakash Javadekar, that it would declare all black money stashed abroad in tax havens as “national assets” and enact a law to deal with the situation.
Former Lok Sabha secretary general Subhash Kashyap, who, along with noted lawyer Ram Jethmalani, had sought court intervention to retrieve the illegal money in bank accounts abroad, were not shy of expressing their disillusionment with the government’s stand.
“Why are they citing the confidentiality clause now? Were they not aware of it when they were promising during electioneering that they would bring back the money stashed away in tax havens in such and such time,” Kashyap asked while speaking to IANS.
Surely, Jaitley, who had held important portfolios in the previous NDA regime under Atal Bihari Vajpayee, could not be unaware of the DTAA’s confidentiality provisions.
“More politics than law is now in play in the entire issue. If there is a political will to get black money from abroad then it should not be difficult,” Kashyap maintained.
“They (possibly) find some difficulties, probably these difficulties are not legal.”
If the government feels impeded by the DTAA’s confidentiality provision, it can always ask those it suspects of holding such accounts to file an affidavit stating if they or their immediate kin had accounts in a foreign bank before they travel abroad, Kashyap suggested.
If their declaration turns out to be false, then their properties in the country would stand confiscated and they should be prosecuted. This was one way by which, without breaching the DTAA’s confidentiality clause, the government can on its own get the information and put it in the public domain, he added.
The July 4, 2011, ruling had said that the DTAA could not come in the way of disclosing the names of account holders in the LGT Bank. Though Liechtenstein was largely populated by German-speaking people, the court noted, it was “an independent and sovereign nation-state”.
The names of the account holders were not even remotely covered by the DTAA, it said.
“The agreement between Germany and India is with regard to various issues that crop up with respect to German and Indian citizens’ liability to pay taxes to Germany and/or India, the court said.
“It does not even remotely touch upon information regarding Indian citizens’ bank accounts in Liechtenstein that Germany secures and shares.,” the court had said, rejecting the position taken by the UPA government on holding back the names.
This judgment was described by Javadekar as a “slap on the face of the government”, which did not want to take “any tough and honest measures to check corruption and black money”.
So what has changed? Except that possibly the government finds it easy to fall back on the DTAA when faced with real politik?
Activist-lawyer Prashant Bhushan, who spearheads the India Against Corruption Campaign, said that the government could very well disclose the names if it wanted to do so.
“There is no such clause that stops the government from disclosing the names. They can disclose it. It is against those people who are holding illegal accounts,” Bhushan told IANS.
The plea of invasion of privacy is being invoked here to protect innocent account holders, Bhushan said. But if the government knows who the illegal account holders are, it can always disclose their names”, he said.
“At the moment we are studying what they (the government) are saying. I will speak after I tell the court (our stand),” senior counsel Anil Divan, who is espousing Jethmalani’s cause, told IANS cryptically when asked for his reaction.
The last word obviously is yet to be heard on the subject.