Skip to main content

Why should income tax department decide, reject RTI pleas to Black Money SIT?

By Venkatesh Nayak* 
In November 2015, the media reported extensively on a press conference addressed by one Mr. Herve Falciani former employee of HSBC who leaked information about account holders who had stashed away what is alleged to be “black money” in that Bank. Mr. Falciani participating in the presser via skype had alleged that the Government lacked seriousness in acting on the information that he provided to them regarding black money stashed abroad. He claimed to have written to the Hon’ble Prime Minister and the Chairperson of the Special Investigation Team (SIT) constituted in May 2014 to investigate unaccounted money stashed abroad by Indians.

RTI application sent to the Black Money SIT

As the bureaucrats in the Prime Minister’s Office (PMO) are extremely reluctant about sharing information about almost everything sought under The Right Information Act, 2005 (RTI Act) I sent an RTI application along with the news clipping about the presser to the Public Information Officer (PIO) of the SIT. I sought the following information:
“1) A clear photocopy of the letter reportedly written by Mr. Hervé Falciani, former employee of the Geneva branch of the HSBC Bank to the Hon’ble Chairman, Special Investigation Team (SIT) constituted pursuant to Order dated 4/7/2011, passed by Hon’ble Supreme Court of India, in Writ Petition (Civil) No. 176 of 2009;
2) A clear photocopy of all responses sent by the Hon’ble Chairman or any Member of or employee serving, the said SIT, to Mr. Hervé Falciani till date;
3) A clear photocopy of all file notings held by the said SIT in its files in hard copy of electronic form in relation to the said letter of Mr. Hervé Falciani;
4) A clear photocopy of all documents that contain details of action taken till date by the said SIT pursuant to the said letter of Mr. Hervé Falciani;
5) A list containing the titles of the reports submitted by the said SIT to the Government of India and the Hon’ble Supreme Court of India, till date, in pursuance of their terms of reference along with the date of submission of each report;
6) A clear photocopy of all reports described at para #5 above along with Annexures, if any; and
7) A clear photocopy of all information required to be disclosed suo motu by the said SIT under Section 4(1) of the RTI Act;”
The purpose of the first four questions was to ascertain details of the correspondence between Mr. Falciani and the SIT. Queries #5-6 were intended to draw out information that is not placed in the public domain either by the SIT or by the Central Government even though unearthing black money is a matter of great public interest, due in no small measure to the promise made by the lead campaigners of the National Democratic Alliance (NDA) of depositing a few hundred thousand Rupees in the bank account of every Indian citizen by bringing all black money stashed abroad back to the country.
While major efforts have been made to open bank accounts for the hitherto “unbanked” under the PM Jan Dhan Yojana, the promised sums are yet to reach these accounts. Those who made the promise have kept mum about its fulfillment while their supporters have dismissed the promise as a mere “jumla” (idiomatic expression) resulting in an “idiotic expression” on the faces of many of the “now financially included” who were checking their bank balance frequently hoping for a windfall gain. The last query was to remind the SIT of its obligation of complying with the requirements of proactive disclosure of information under Section 4(1)(b) of the RTI Act. The RTI application was specifically addressed to the PIO of the SIT located in the Union Finance Ministry.

CBDT instead of Black Money SIT replies to the RTI application

After more than a month of the RTI reaching the Finance Ministry, the PIO of the Income Tax Department under the Central Board of Direct Taxes (CBDT) decided to send a response rejecting the first four queries under Section 8(1)(h) of the RTI Act and also claiming the protection of Section 8(1)(e), namely fiduciary relationship. There is no explanation as to why the reply is dated 9th December which is 35 days after the date of receipt of RTI application in the Finance Ministry. The remaining queries #5-7 have been transferred to the Member Secretary, SIT.
This reply is problematic for several reasons. First, the RTI application was never addressed to the CBDT at all. It was sent directly to the office of the Black Money SIT. It is not clear why and how the RTI landed up on the desk of CBDT’s PIO. Second, the PIO’s stock response to queries #1-4 is puzzling. There is an inexplicable hesitation about recognising Herve Falciani as a whistleblower. Instead the PIO clubbed him with other persons who claim to be whistleblowers who have come forward to provide assistance in the investigation of black money stashed abroad. This response makes it clear that there are other whistleblowers as well whose identity the CBDT probably does not want to make public.
Third, everything about the Government’s steps taken to investigate these matters is said to be covered by Section 8(1)(h) of the RTI Act. That exemption covers circumstances where information disclosure may impede the investigation, prosecution or arrest of offenders. The PIO seems to be claiming that all three grounds are applicable in this case. The Central Information Commission (CIC) in several decisions and the High Courts in several judgements and orders have held that Section 8(1)(h) cannot be invoked in a routine manner by a PIO without reasonably showing how disclosure of information will adversely affect the investigation or fair trial process.
Fourth, by claiming the protection of fiduciary relationship under Section 8(1)(e), the CBDT PIO seems to be putting the “whistleblowers” in a fiduciary relationship with the Government. The PIO has not bothered to differentiate between “information given in confidence ordinarily” and “information shared with a lawyer or doctor” where the latter is entitled to the protection of law for being fiduciary in nature ordinarily. By describing the relationship between the CBDT and a whistleblower as “fiduciary” in nature, the PIO is setting new standards of secrecy which even the Hon’ble Supreme Court did not recognise in its exposition of the nature of “fiduciary relationships” in the CBSE and ICAI matters. More recently in the RBI case the Apex Court clarified that all and sundry relationships especially those governed by statutory requirements cannot be termed “fiduciary” in nature.
It comes as no surprise in the same RBI case the Apex Court commented on the tendency of PIOs to favour secrecy over transparency in the following words:
“”61. … it had long since come to our attention that the Public Information Officers (PIO) under the guise of one of the exceptions given under Section 8 of RTI Act, have evaded the general public from getting their hands on the rightful information that they are entitled to.”
The Hon’ble Prime Minister openly stated at the CIC’s Annual RTI Convention, held in October 2015 to commemorate the 10th anniversary of the implementation of the RTI Act, that citizens should not only have the right to get copies of documents but also ask question and demand accountability from public authorities, because the right to ask questions is the very foundation of democracy and it will reinforce their faith in democracy. Many PIOs seem to think otherwise thereby making a mockery of this promise. The black money issue is one of immense public interest as it links inextricably with the businessmen-criminal-politician-bureaucrat nexus, corruption, tax evasion, money laundering, round tripping and pure and plain criminality.
The Government releases very little information about the progress made by the SIT on black money. Only one set of answers to a query raised by an MP in the Lok Sabha is accessible on the website of Parliament for the ongoing Winter Session. These answers focus on systemic changes required to be made or already effectuated by the Government. There is little information about how much black money has been repatriated to India. An MP in the Rajya Sabha raised a query similar to queries #1-4 in my RTI application and the Government’s response was similar word for word except for the references to the RTI Act’s exemptions. The Government refused to describe Mr. Falciani as a whistleblower and clubbed him with others and refused to disclose any information as it would harm the ongoing investigation.
Six other unstarred questions (#1035, 1017, 1020, 1008 and1018) raised in the Rajya Sabha also got stock responses from the Government in the manner of the answers given in the Lok Sabha. So neither the people of India nor their elected representatives can have access to more detailed information about what the SIT or the Government is doing about Black Money. At least MPs are not getting VIP treatment in this issue.

Black Money SIT is a public authority under the RTI Act

As for the transparency obligations of the SIT on Black Money, it must be said that this body is clearly a public authority under Section 2(h)(d) as has been established through a notification of the Central Government and also under Section 2(h)(i) because it is wholly financed by the Government. There is no justifiable reason why it should not upload the progress made in its work on the website of the Finance Ministry if it cannot have a website of its own. All categories of information under Section 4(1)(b) as may applicable to the SIT must be immediately disclosed. Reports presented to the Supreme Court under whose direction it was established, must also be made public on an official website unless directed otherwise by the Apex Court. There is no reason why the SIT should shirk away its obligations of proactive information disclosure.
The CBDT PIO has unnecessarily delayed responses to queries #5-7 of the RTI application by transferring it after more than a month of its receipt in the Finance Ministry. The SIT’s response to these queries is eagerly awaited. As the Chairperson and the Vice Chairperson are retired judges of the Apex Court one is hopeful of a more reasonable response from their office. I will keep you posted on future developments.

Whistleblower Protection Act’s fate is undecided

Meanwhile, thanks to the tug of war between the Treasury Benches and the Opposition in the Rajya Sabha, the Whistleblowers Protection Act‘s fate remains undecided. During the last monsoon session, the Lok Sabha approved a slew of amendments to this as yet unimplemented law under the pretext of strengthening national security. These amendments, if adopted by the Rajya Sabha will effectively discourage many a potential whistleblower from exposing corruption, wrongdoing or criminality in public authorities. The Cabinet Note that I obtained under the RTI Act regarding the amendments makes it clear that the Government thinks, citizens cannot have an absolute right to blow the whistle in India. So while the law is being amended to discourage homegrown whistleblowers, there is a reluctance to accept foreigners like Herve Falciani as whistleblowers too. So what happens to the national motto – “satyameva jayate” (truth alone shall triumph). As this motto is not part of the Constitution, will it be read as the bejewelled sutra of that “holy book”, is anybody’s guess.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

Comments

TRENDING

CAG’s audit report creates a case for dismantling of UIDAI, scrapping Aadhaar

By Gopal Krishna  The total estimated budget of the biometric UID/Aadhaar number project and its cost: benefit analysis has not been disclosed till date. Unless the total estimated budget of the project is revealed, all claims of benefits are suspect and untrustworthy. How can one know about total savings unless the total cost is disclosed? Can limited audit of continuing expenditure of Unique Identification Authority of India (UIDAI), an instrumentality of Union of India be deemed a substitute for total estimated budget of the biometric UID/Aadhaar number project of UIDAI? It has been admitted by CAG that the audit of functioning of the UIDAI is partial because of non-transparency. The report of the Comptroller and Auditor General (CAG) of India arising from performance audit of functioning of the UIDAI for the period from 2014-15 to 2018-19 is incomplete because it is based on statistical information “to the extent as furnished by UIDAI” upto March 2021. There is also a need to compa

Women for Water: WICCI resource council for empowering women entrepreneurs, leaders

By Mansee Bal Bhargava*  The Water Resources Council of the Women’s Indian Chamber of Commerce & Industry is formed for 2022-24. A National Business Chamber for Women, the Women’s Indian Chamber of Commerce & Industry ( WICCI ) is a premier association empowering women entrepreneurs and leaders in all walks of life through advocacy, pro-active representations to government, implementing projects for women via funds allocated by various government agencies and corporates, plus bringing awareness on all issues that concern women. WICCI boosts and builds women’s entrepreneurship and businesses through greater engagement with government, institutions, global trade and networks. WICCI enables fundamental changes in governmental policies, laws, incentives and sanctions through proper channel, with a view to robustly encourage and empower women in business, industry and commerce across all sectors. WICCI is supported by the massive global networks of ALL Ladies League (ALL), Women Eco

75 yrs of water in India: whither decentralised governance to sustain the precious resource?

By Shubhangi Rai, Megha Gupta, Fawzia Tarannum, Mansee Bal Bhargava Looking into the last century, water resources management have come a long way from the living with water in the villages to the nimbyism and capitalism in the cities to coming full cycle with room for water in the villages. With the climate change induced water crisis, the focus on conservation and management of water resources if furthered in both national and local agenda. The Water management 2021 report by NITI Aayog acknowledges that water and sustainability are of immense importance for the sustenance of life on earth. Water is intricately linked to the health, food security and livelihood. With business as usual, India’s water availability will only be enough to meet 50% of its total demand and 40% of the population in India will have no access to drinking water and sanitation by 2030 . Its Composite Water Management Index 2021 states that ‘India is suffering from the worst water crisis in its history and mil

Grassroot innovations in water management: Policy challenges amidst climate change

By Shubhangi Rai[1], Megha Gupta[2], Mansee Bal Bhargava[3] India despite of having a vast traditional water management history continue to struggle with water crisis from disasters like floods and droughts but more with social distress leading to asymmetric access to water goods and services. The rising water crisis in a country that is abundant in water resources and wisdom is worth questioning and resolving. The knowledge that was passed on by our ancestors who used a diverse range of structures that helped harvest rainwater locally besides replenish and recharge the groundwater along the way. Formal and informal rules were locally crafted by the community on who to use the water, how much to use, when to use, how to penalise for misuse, how to resolve conflicts and many more. As a nation, we need to revive our dying wisdom of the traditional water management systems and as water commons, enable the governing mechanisms towards sustainability. In the session on ‘ Grassroot Innovatio

Need to destroy dowry, annihilate greed and toxic patriarchy in India

By IMPRI Team Talking about an evil ever-persistent in our society and highlighting the presence of toxic patriarchy, #IMPRI Gender Impact Studies Center (GISC) , IMPRI Impact and Policy Research Institute, New Delhi organized a panel discussion on Destroy Dowry: Annihilation of Greed and Toxic Patriarchy in India under the series The State of Gender Equality – #GenderGaps on May 4, 2022. The chair for the event was Prof Vibhuti Patel, Former Professor, Tata Institute of Social Sciences (TISS), Mumbai and a Visiting Professor, IMPRI. The distinguished panel included – Asha Kulkarni, General Secretary at Anti Dowry Movement, Mumbai ; Kamal Thakar, Sahiyar Stree Sangathan ; Adv Celin Thomas, Advocate at Celin Thomas and Associates, Bengaluru; Shalini Mathur, Honorary Secretary, Suraksha Dahej Maang Virodhi Sanstha Tatha Parivar Paraamarsh Kendra, Lucknow and Secretary, Nav Kalyani Foundation, Gender Resource and Training Centre; and Dr Bharti Sharma, Honorary Secretary, Shakti Shalini

Impact of climate change on Gujarat pastoralists' traditional livelihood

By Varsha Bhagat-Ganguly, Karen Pinerio* We are sharing a study[1] based learning on climate resilience and adaptation strategies of pastoralists of Kachchh district, Gujarat. There are two objectives of the study: (i) to examine the impact of climate on traditional livelihood of pastoralists of Gujarat state; and (ii) to explore and document the adaptation strategies of pastoralists in mitigating climate adversities, with a focus on the role of women in it. In order to meet these objectives, the research inquiries focused on how pastoralists perceive climate change, how climate change has impacted their traditional livelihood, i.e., pastoralism in drylands (Krätli 2015), and how these pastoral families have evolved adaptation strategies that address climate change (CC)/ variabilities, i.e., traditional livelihood of pastoralists of Kachchh district, Gujarat state. Pastoralism is more than 5,000 years old land-use strategy in India; it is practised by nomadic (their entire livelihood r

Russia’s invasion of Ukraine: Implications for India and emerging geopolitics

By IMPRI Team In the backdrop of the ongoing conflict between Russia and Ukraine, #IMPRI Center for International Relations and Strategic Studies (CIRSS) , IMPRI Impact and Policy Research Institute, New Delhi hosted a panel discussion on Russia’s Invasion of Ukraine: Implications for India and Emerging Geopolitics. The event was chaired by Ambassador Anil Trigunayat (IFS Retd.), Former Ambassador to the Hashemite Kingdom of Jordan, Libya, and Malta; Former Deputy Chief of Mission, Embassy of India, Moscow. The panelists of the event were Prof Waheguru Pal Singh Sidhu, Clinical Professor, Center for Global Affairs, New York University; H.E. Freddy Svane, Ambassador, Royal Danish Embassy, New Delhi; Maj. Gen. (Dr) P. K. Chakravorty, Strategic Thinker on Security Issues; and T. K. Arun, Senior Journalist, and Columnist. Ambassador Anil Trigunayat commenced the discussion by stating the fact that wars are evil. He opines that no war has ever brought peace and prosperity to any country and

Making Indian cities disaster, climate resilient: Towards actionable urban planning

By IMPRI Team  Three-Day Online Certificate Training Programme on “Making Indian Cities Disaster and Climate Change Resilient: Towards Responsive and Actionable Urban Planning, Policy and Development”: Day 1 A three day Online Certificate Training Programme on the theme “Making Indian Cities Disaster and Climate Change Resilient: Towards Responsive and Actionable Urban Planning, Policy and Development”, a joint initiative of the National Institute of Disaster Management (NIDM) , Ministry of Home Affairs, Government of India, was held at the Centre for Habitat, Urban and Regional Studies at IMPRI Impact and Policy Research Institute, New Delhi. Inaugurating the session Ms. Karnika Arun, Researcher at IMPRI, welcomed the speakers and participants to the program with an introduction to the eminent panellists. Day 1 of the program included Prof Anil K Gupta, Head ECDRM, NIDM, New Delhi and Mr Tikender Singh Panwar, Former Deputy Mayor, Shimla; Visiting Senior Fellow, IMPRI as conveners, an

Gender gap: Women face disproportionate barriers in accessing finance

By IMPRI Team Women worldwide disproportionately face barriers to financial access that prevents them from participating in the economy and improving their lives. Providing access to finance for women is crucial for financial inclusion and, consequently, inclusive growth. To deliberate and encourage dialogue and discussion for growth, the Gender Impact Studies Center (GISC) of IMPRI Impact and Policy Research Institute, New Delhi, organized a web policy talk by Mr S. S. Bhat, Chief Executive Officer Friends of Women’s World Banking India, Ahmedabad on ‘Access to Finance for Women’ as a part of its series The State of Gender Equality – #GenderGaps. The session was started by the moderator, Chavi Jain, by introducing the speaker and the discussants and inviting Prof. Vibhuti Patel to start the deliberation. Importance of access to finance for women Prof. Vibhuti Patel, Visiting Professor, IMPRI, New Delhi; Former Professor, Tata Institute of Social Sciences (TISS), Mumbai, began by expre

Hindutva patriotism: State-sponsored effort to construct religion-based national identity

By Harasankar Adhikari Rabindranath Tagore (1908) said, "Patriotism can’t be our final spiritual shelter. "I will not buy glass for a diamond, and I will never let patriotism triumph over humanity as long as I live." Tagore’s view stands in sharp contrast to what we are witnessing today, when patriotism means religious differences between the majority (Hindu) and minority (Muslim). Our secular nation is gradually disobeying its secular nature and it is being patronised by political leaders and their narrow politics. India’s unique character of ‘unity in diversity’ is trying to be saffronised. Hindu extremism (Hindutvavadis) generates a culture of religious intolerance. Democratic India is based upon the ideology of equality of all. This nation is based upon different foundations than most of those which went before it. Its legitimacy lies in its being able to satisfy its various component communities that their interests will be safeguarded by the Indian state