Skip to main content

Order to appoint public authorities for Black Money SIT under RTI a major breakthrough

By Venkatesh Nayak*
The Central Information Commission (CIC) has held the Special Investigation Team (SIT) constituted by the Government of India to investigate all matters relating to ‘black money’ (assets stashed away without accounting for tax purposes) to be a public authority under the Right to Information Act, 2005 (RTI Act). The Black Money SIT headed by two retired Justices of the Supreme Court and comprising of senior representatives of various ministries, departments and agencies engaged in ensuring law enforcement and tax compliance was set up within a few days of the National Democratic Alliance (NDA) taking over the reins of power in Delhi, in May 2014.
Readers will remember that the SIT was constituted in compliance of the directives of the Supreme Court in the matter of Ram Jethmalani & Ors vs Union of India & Ors. (popularly known as the black money case and a landmark judgement in RTI jurisprudence). (CLICK HERE for the CIC’s detailed order in this case)

Background to the RTI intervention

In November, 2015, after almost 1.5 years of the Black Money SIT going about its appointed tasks quietly, without seeking much publicity, Mr. Herve Falciani a former employee of HSBC Bank and recognised the world over as a whistleblower, went public with his grievances that the authorities in India were allegedly not doing enough to make use of the materials that he had supplied to them about illegal funds stashed abroad by individuals and corporate entities of Indian origin. Readers may recollect that the Hon’ble Supreme Court of India had directed the Government of India to disclose the list of entities who had stashed away black money in the Ram Jethmalani case.
I must thank Prof. Jagdeep Chhokar, renowned advocate of electoral reforms and transparency in political party funding, for encouraging me in a telephonic discussion, to look for ways and means to make the working of the Black Money SIT more transparent than it already was. So, using the above news story I filed an information request with the CPIO of the office of the Member Secretary of the SIT seeking the following information:
“Apropos of the enclosed copy of a news-clipping published in the popular English daily, the Times of India, dated 03/11/2015, I would like to obtain the following information from your public authority, under the RTI Act:
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”.
As it happens often, CPIOs in the Ministry of Finance played soccer with my RTI application for more than a month and finally, a CPIO from the Central Board of Direct Taxes (CBDT) rejected access to information sought at queries #1-4 by claiming that ongoing investigations would be hampered [exemption under Section 8(1)(h) of the RTI Act] and that the information was received in a fiduciary capacity [exemption under Section 8(1)(e)]. Queries 5-7 were transferred back to the office of the Black Money SIT!
Interestingly, the CPIO referred to the suppliers of materials (such as Mr. Falciani) as “certain persons claiming to be whistleblowers”. Such replies are but natural in a situation where the Government is keen on diluting the Whistleblower Protection Act instead of implementing it. (CLICK HERE for my analysis of the retrograde amendments to the Whistleblower Protection Act, 2014 passed by the Lok Sabha and pending in the Rajya Sabha.)
In my first appeal I did not challenge the CPIO’s decision of rejection. Instead I questioned the competence of the CPIO, CBDT to make a decision in a matter not under his charge. The FAA upheld the CPIO’s rejection order but directed that the entire RTI application be sent to the Black Money SIT for making a decision de novo (afresh).
After waiting for a reply from the Black Money SIT for 140 days, I decided to file a complaint before the CIC – not for demanding access to information but to declare the SIT as a ‘public authority’ under the RTI Act. My prayers and grounds are on pages 16-26 of the 1st attachment. The sum and substance of my argument was that being a multi-member body, as per the Government’s May 2014 notification, the SIT was clearly a ‘body’ and as this body was constituted by a notification in the Official Gazette, the SIT met both criteria for being recognised as a public authority under Section 2(h)(d) of the RTI Act.
The CIC has accepted this argument adding more reasoning and case law to support its decision- holding the Black Money SIT as a public authority under the RTI Act. The CIC did not rule on my prayer seeking a direction to the Dept. of Personnel and Training (DoPT)- the nodal department for ensuring compliance with the RTI Act in public authorities under the Government of India- requiring issuance of guidelines for entities created after the enforcement of the RTI Act to comply with its provisions. However, the CIC has directed has mentioned my prayers and said its order to the Department of Personnel and Training (DoPT). Hopefully, the DoPT will come up with guidelines on this subject.
In my humble opinion the CIC’s order is a very positive step in the direction of expanding the regime of transparency to bodies that meet the criteria of a ‘public authority’ but do not comply with the provisions of the RTI Act for reasons best known to them. Despite this case taking almost two years to reach finality, this is a timely development on the eve of the RTI Act entering the thirteenth year of implementation.
It remains to be seen whether the SIT and the Government will comply with this order or challenge it before the Courts. Meanwhile, I request readers who can use the RTI Act, to file RTI requests with the Black Money SIT demanding compliance with all statutory requirements.

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

Comments

TRENDING

Although sporting genius, Wasim Akram was mascot of cricket globalisation era

By Harsh Thakor*  Since Independence India and Pakistan produced a galaxy of cricketing stars that permeated cricketing artistry of legendary heights. Amongst this bunch.Wasim Akram manifested pure cricketing genius to the greatest height.I speculate how India’s fortunes would have changed had partition not taken place and Wasim playing for India. Wasim Akram explored realms untranscended in bowling wizardry, like a painter devising new art forms or a scientist experimenting. He simply re-defined the art of reverse swing, reversing the ball in and out. There were bowlers quicker, more accurate and with better records, but none equalled Wasim in an all-round package. He was more lethal with a new and old ball than any fast bowler ever. Wasim could produce balls that were surreal, with his reverse swing, defying laws of bio mechanics He was simply the epitome of versatility, possessing a repertoire of six different deliveries within an over itself, disguising deliveries in the manner of

Zakir Naik tumult, Catholic Church power abuse: will Anwar Ibrahim save Malaysia?

Anwar Ibrahim By Jay Ihsan*  Anwar Ibrahim, a hardcore reformist who took a punch to his eye in 1998 from then inspector-general of police, Rahim Noor, has finally been given the mandate by Malaysians to serve as the nation's 10th prime minister. Anwar knows too well the burden of staying true to both trust and faith the people have in him requires every once of commitment and dedication. The question is will he be apologetic for his transgressions enroute to "rebuilding" Malaysia? In his overzealousness to get the job done, Anwar, 75, needs to safeguard every bit of gumption to address prickling issues plaguing the safety of the nation especially those involving communal sensitivities. For one, dare Anwar get rid of terrorist hate preacher and fugitive Zakir Naik for inciting religious unrest in Malaysia? In November 2016, India’s counter-terrorism agency filed an official complaint against Naik, holding him responsible for promoting religious hatred and unlawful activi

Galileo-Catholic church affair: must history repeat at Malaysia’s St Francis Xavier church?

By Jay Ihsan*  Christianity is the enemy of liberation and civilization -August Bebel Christianity taught men that love is worth more than intelligence -Jacques Maritain Real Christianity can be summed up in two commands: Love God and love people. - Joyce Meyer Pious XI was too neutral to mention the gas chambers; decent people like my own family were turned into devils by crude Christianity - Lionel Blue Religious doctrines cannot escape the liberty of thoughts and expression. To each their own, so it is said. From all things nice to all things that make one cringe - religion is polarised and in this regard, Christianity has over time faced the wrath of bigotry espoused by those "bequeathed" to protect it. Take Pope Francis for example. He had a secret meeting with giant pharma Pfizer chief executive officer Albert Bourla last year while the world struggled to make sense of the word "lockdown" and suffer adverse effects of the Corona virus vaccines produced by Pfiz

Qatar World Cup has a strong Bangladesh connection: stadium construction, t-shirts

By Mashrur Siddique Bhuiyan*  The FIFA World Cup fever has unquestionably cut through the minds of mass people all over the world. Stadiums in Qatar are buzzing with football fans and athletes representing their countries at the “Greatest Show on Earth". The magic of the FIFA World Cup is so enormous that even being unable to participate does not matter much to the fans who support different nations. This is one of the highest viewed events in the world, with the 2018 event viewed by about 3.6 billion people worldwide. But this crowd is not aware of the contribution of migrant workers who helped build the very stadiums where the matches are playing in. Qatar won the bid in 2010 to host the FIFA World Cup 2022, which got the oxymoron of celebration and controversy. This also created the potential for Qatar to Showcase its monumental economic achievements and unique culture on the global stage. The motto for Qatar’s bid team in 2010 was ‘Expect Amazing’ and migrant workers across th

A classic, 'Gandhi' ignores merciless cruelty unleashed on militant freedom fighters

By Harsh Thakor  The movie ‘Gandhi’ produced by Richard Attenborough, which was released 40 years ago on November 30th, 1982, was classic in it's own right. Ironical that it took an Englishman to embark upon the making of a film on this legendary figure. I can't visualize a better pictorial portrayal of Gandhi's life or an actor getting in the skin of the character an exuding the mannerisms as actor Ben Kingsley. Episodes are crafted and grafted surgically, illustrating how Gandhi wove fragmented bits into a cohesive force, to confront he British empire. Most boldly the movie unfolds how British colonialism subjugated the Indian people to barbaric cruelty. With great mastery the cinematography captures the vast Indian landscapes and essence of livelihood of Indians under colonial rule. The movie most illustratively shows the crystallisation of anti-colonial fervour from the embryonic stage and how it fermented into an integrated movement. In a most subtle manner it illustr

Implementing misleading govt order to pollute Hyderabad's 100 year old reservoirs

Senior activists* represent to the Telangana Governor on GO Ms 69 dated 12.4.2022 issued by the Municipal Administration and Urban Development (MA&UD), Government of Telangana: ‘...restrictions imposed under para 3 of said GO Ms 111 dated 8.3.1996 are removed...’: *** Ref: GO Ms 111 dated 8.3.1996: ‘To prohibit polluting industries, major hotels, residential colonies or other establishments that generate pollution in the catchment of the lakes upto 10kms from full tank level as per list in Annexure-I...’ We come to your office with grievance that GO Ms 69 dated 12.4.2022 issued by Government of Telangana not only contains false information issued ‘By Order and in the name of the Governor of Telangana’ , without any scientific or expert reports, but also that implementation of the said GO is detrimental and can be catastrophic to the Hyderabad city as two 100 year old reservoirs Osman Sagar and Himayath Sagar were constructed as dams on river Moosa and river Esa, with the first and

Film on evidence of viability of in situ communitarian urban water management

By Rahul Banerjee  Over the past few years it has become increasingly clear that centralised urban water management in India is in deep crisis. Water supply is both inadequate and extremely costly, water harvesting and recharging and used water treatment and reuse are mostly absent and storm water management is a disaster. Under the circumstances, the only viable solution is communitarian in situ water management and this is what has been proposed in the latest guidelines of both the Atal Mission for Rejuvenation and Urban Transformation and the Swacch Bharat Mission. Our NGO, Mahila Jagat Lihaaz Samiti , has not only implemented communitarian in situ water management but has also carried out research to provide evidence of the unviability of centralised water management and the suitability of the former. Here is a film based on a detailed research that I did on urban water management in Chhattisgarh for the National Institute of Urban Affairs, New Delhi, that succinctly critiques cen

Terrorism and right-wing politics in Bangladesh: Exploring the nexus

By Shafiqul Elahi*  Although terrorism as broadly understood as violent extremism or militancy has long historical roots, in Bangladesh, it surfaced in the 1970s through leftist militants. Later, it shifted to Islamist extremism in the 1980s and flourished throughout the 1990s, and reached its peak in the early 2000s. The menace of terrorism particularly in the form of Islamic militancy has widely been felt in Bangladesh's society and polity since 1999. Since then, several militant groups have gained ground and started to challenge the government over the issues of the political process and social systems in the country. The central goal of the operations of the militant groups is to establish an Islamic regime in the country. The Fifth Amendment of the Bangladesh Constitution under the Zia regime in the late 1970s and the eighth amendments of the Constitution under the Ershad regime in the early 1980s have placed Islam at the state level to recognize its importance in the country

Floods: As ax falls on most vulnerable, Pak seeks debt cancellation, climate justice

By Tanupriya Singh  Even as the floodwaters have receded, the people of Pakistan are still trying to grapple with the death and devastation the floods have left in their wake. The floods that swept across the country between June and September have killed more than 1,700 people, injured more than 12,800, and displaced millions as of November 18. The scale of the destruction in Pakistan was still making itself apparent as the world headed to the United Nations climate conference COP27 in Sharm el-Sheikh, Egypt, in November.  Pakistan was one of two countries invited to co-chair the summit. It also served as chair of the Group of 77 (G77) and China for 2022, playing a critical role in ensuring that the establishment of a loss and damage fund was finally on the summit’s agenda, after decades of resistance by the Global North. “The dystopia has already come to our doorstep,” Pakistan’s Minister for Climate Change Sherry Rehman told Reuters. By the first week of September, pleas for h

Chemical project promoters of Tamil Nadu have a lot to learn from Gujarat

By NS Venkataraman*  When good investment opportunities in chemical industry exist which are known in a region and which are yet to be exploited, it can be said that the chemical industry in the region is at the cross roads. However, when there are good investment opportunities in chemical industry but which are ignored and focus shifted to some other sector, it can be said that the scenario amount to poor strategy. Tamil Nadu government has now fixed a target for achieving one trillion dollar economy in the state by 2030. This is a bold and forward looking initiative and certainly this target is achievable, even though the year 2030 is only seven years away. With the target of achieving one trillion dollar size economy, it is necessary to give due role and importance for the growth of the chemical industry, since several chemical products are feed inputs for several other industrial sector such as automobile, electronics, textile and so on. Growth of such chemical in