Black money: 'This govt was changing its position and going backwards'

‘You ask the (Modi) government that question (why it took such a stand). If I was in government I would not have advised the government to take such a stand.’

'The question is, does the government have the will (to bring back the black money)?

Anil Divan, who is fighting the black money case in the Supreme Court, speaks to Sheela Bhatt/Rediff.com.

Senior lawyer Anil Divan, 84, is handling the brief of maverick Ram Jethmalani in the black money case that is being fought in the Supreme Court of India. Two great lawyers, two totally different personalities, but who are working superbly in tandem while handling the high-profile case in the Supreme Court.

If Jethmalani makes the right noises over the political implications of the case, Divan puts forward the legal framework within which he wants the court’s help to get back the alleged black money stashed abroad.

The Supreme Court is hearing Jethmalani’s plea regarding the 800-plus names of Indian account-holders given by Germany and France in the Liechtenstein-based bank and HSBC branch of Geneva in Switzerland. The court has given a couple of important decisions already, which has kept the issue alive in the public space.

Even though it will take not years but maybe a decade or more before the black money stashed abroad could return to India, Anil Divan, image, left, tells Sheela Bhatt/Rediff.com, “In a democracy we should never give up the fight.”

The new government led by Prime Minister Narendra Modi, like the previous government of Manmohan Singh, took a legal stand in the Supreme Court that only after the prosecution is completed could the names of the alleged account-holders in the Swiss bank be revealed. Why did you disagree with this stand?

This was a completely incorrect stand because the names of account-holders was given by the French government to the Indian government. The names relate to the HSBC Geneva branch account. So, the Double Taxation Avoidance Agreement between France and India doesn’t apply here because this is something related to the accounts held not in France or India.

It is commonsense that the DTAA, which is a bilateral agreement, doesn’t apply here at all.

What does the DTAA mean? It is applied when the business takes place in France and India and between them. The agreement says businessman will not be taxed twice. It has nothing to do with what France handed over to India about the secret accounts held in Swiss banks.

The matter of Swiss deposits has nothing to do with business between France and India, nor does it have anything to do with tax conditions applicable between the two countries. The government took an incorrect stand in the first place.

Also, we are totally supported by the Supreme Court judgment already delivered in the case where the court said the DTAA doesn’t apply in case of bank details between India and Germany. The same principle applies here. So why should the government ask for a revision?

Germany gave India details of Indian accounts held secretly in the Liechtenstein-based bank. The Supreme Court said the DTAA doesn’t apply there. So the government’s stand in case of France was quite incorrect.

In that case why did the Modi government take such a stand?

You ask the government that question. If I was in government I would not have advised the government to take such a stand.

In the first place, why did the United Progressive Alliance government sign the DTAA with these countries that’s binding in many ways and facilitating in some ways?

In our application we have alleged that the government deliberately tried to bring in the DTAA to apply the confidentiality clause which was absolutely unnecessary. Because Germany has offered the information openly to any country. It got the secret account-holders’ information of various countries and offered it without condition. Then why bring in the confidentiality clause?

The UPA government deliberately got in the DTAA to apply the confidentiality clause to protect account-holders.

And this government is endorsing it.

Yes, that’s why we are opposing it.

I started my argument saying that this is abuse (by the current government) of the process of law because the previous government had accepted the judgment of the same court in the case of Germany’s Liechtenstein-based bank accounts.

Our question was, why do you (the Modi government) want to change it?

I also said that this government was resiling and going backwards. The earlier government had at least accepted the judgment in the case of Germany.

What are the legal implications of the court’s stinging remarks on October 28?

See, the government has agreed to give the 700 or 800 names to the Supreme Court. What I could not understand is that the government has claimed that it has given the names to the Special Investigation Team (formed by the court), then what was the hesitation in giving it to the Supreme Court?

On this issue, inside the court, 20 minutes of arguments took place between me and the government’s lawyer on it. Why this hesitation? Were they suggesting that they can’t give it to the court because then the court may give it to us (the petitioner) and therefore, the government might have thought there will be a breach?

But, as I told you, the DTAA between France and India has no application in this case.

If the names are leaked out or published, what will be the implication?

It is necessary. The people would come to know who is right and who is wrong. The people must know and create pressure on the government to act. Even after the names are published the investigation will go on and truth will come out in due process.

As you know, out of some 600 plus names, many account-holders haven't been identified. Some have paid tax and got away. Some accounts don't have any money left in them. So the issue of getting back millions of dollars is hyped up actually. Is it not?

It’s not hyped up. If India asks for the account details of the last 15 or so years of all these accounts, then we will get everything. But I don’t see getting such details from Swiss banks. Only if we get all details, only then, will we get money back.

Unfortunately the UPA government entered into a protocol or agreement with the Switzerland government in which they agreed that facts will be provided of account details of April 1, 2011. That’s the cut-off date the Government of India has agreed to.

It was done deliberately to protect the account-holders. We have attacked it. Let’s see what happens now.

In a democracy we have to go on fighting. We can fight through PILs, by vote, or by writing and questioning the government. The money would come back only if there is will. The question is if there is such a will or not.

What is your estimate of the money held abroad?

There are only estimates. The previous government had appointed a couple of committees. I don't have their report, but the government has the estimates.

The new government is not ready to even disclose it.

Image: Finance Minister Arun Jaitley with Prime Minister Narendra Modi. Photograph: Adnan Abidi/Reuters.

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