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Analysis: Glacial timelines & progress in SC black money case, as Panama Papers storm whispers softly in India and politicians procrastinate

Panama, the Dubai of the Americas
Panama, the Dubai of the Americas

There are many cases in the Supreme Court, which are under continuous monitoring of the court, meaning that the court, rather than dispose them of after issuing certain orders, monitors them once in a while, so as to ensure compliance with its orders by the authorities concerned. The petition, filed by senior counsel Ram Jethmalani in 2009, (writ petition [civil] 176 of 2009) is one such, which has seen several ups and downs.

The leaked Panama Papers may underline the urgency with which the Supreme Court must monitor the ongoing investigations, but cause-list shows that the case will come up, in its normal course, on 26 April.

It was last listed on 19 January before the bench of the chief justice, and justices AK Sikri and R Banumathi, and the bench simply passed an one-line order saying ‘Post this matter after 15.02.2016’.

Legally India traced the monitoring of this case by the Supreme Court since the delivery of the order directing the setting up of the Special Investigation Team in 2011, and through the Modi Government’s setting up of the SIT in 2014, to make sense of the issues being dealt with by the SIT, and what each hearing of the Supreme Court meant in this case.

The greatest moment in the case was on 4 July, 2011 when the bench comprising justices B Sudershan Reddy and Surinder Singh Nijjar passed an order directing the Central Government to constitute a Special Investigation Team (SIT), headed by two former Judges of the Supreme Court, to investigate, initiate proceedings, and prosecute those involved in the stashing of unaccounted monies in foreign bank accounts by Indians, or other entities operating in India.

However, it took more than three years for the Government to constitute a SIT, as the previous UPA Government had procrastinated a decision on setting it up till the completion of its term.

In 2014, when it appeared, the outgoing Government had exhausted all possible excuses to not set up the SIT, the election results, which brought in the new Government, proved to be a blessing-in-disguise, and the Supreme Court decided to await the new Government’s resolve to set up the SIT

Thus the setting up of the SIT was one of the first steps taken by the Narendra Modi Government, soon after swearing-in.

Here is an account of the important hearings since then:

20 August 2014:

Bench comprising justices HL Dattu, Ranjana Prakash Desai and Madan B Lokur heard the matter, and took note of the first report submitted by the SIT The court adopted the system of keeping the reports in sealed covers in the custody of the Secretary General of the court, without stating any reasons for doing so.

The bench permitted Jethmalani and his senior counsel, Anil B Divan, to interact with the SIT members on the nuances of the case and the possible way of getting the black money from the banks situated outside the country. “They can only suggest the ways and means and nothing beyond that”, the bench had underlined.

29 October 2014:

The same bench heard the matter, with Justice Dattu becoming the chief justice in the mean time. The AG “voluntarily” filed two separate sealed covers before the bench, containing the names of those account holders who have their bank accounts in HSBC, Geneva, as received from the Government of France. The bench asked the Registry to hand over the sealed covers to the SIT, to be opened only by its Chairman and Vice-Chairman.

The bench permitted both sides to express their difficulties, grievances and other procedure which requires to be adopted before the SIT

3 December 2014

The case was heard by the bench comprising Chief Justice Dattu, and justices Madan B Lokur and AK Sikri. The bench asked Jethmalani to approach the SIT, for redressal of his grievances like the non-supply of copies of reports, and the required correspondence without concealing any information.

20 January 2015

The same bench continued to hear the matter, and asked the parties to bring to the notice of the SIT, their suggestions within two weeks’ time, and asked the SIT to consider them in accordance with law .

21 April 2015:

The Dattu-Lokur-Sikri bench heard the matter, and asked senior counsel, Soli Sorabjee, who appeared for the SIT, to send the status report to the court.

12 May 2015:

Ram Jethmalani and intervener, Subramanian Swamy filed affidavits. The Centre was told to file replies.

3 September 2015:

The Dattu-Lokur-Sikri bench, which continued to hear it, noted the receipt of the third interim report of the SIT dated 7 May 2015.

28 October 2015:

Chief Justice Dattu and justice Arun Mishra heard the matter, acknowledged the submission of fourth report by the SIT, to be kept in a sealed cover. The bench directed listing of the matter in January, 2016.

Unsensational?

As opposed to reports in the media that seek to somewhat sensationalise each hearing of the court in this case, the case status/daily orders section of the Supreme Court’s website, treats the hearing of every case matter-of-factly, giving as little information as possible about what the bench or the counsel observed.

Therefore, it is not surprising that even as civil society and experts view the leaks of the Panama Papers as just the tip of the iceberg, and urge a pro-active role on the part of the authorities and the SIT to investigate whatever little information that these papers show about the involvement of as many as 500 Indians allegedly stashing unaccounted money abroad, the Supreme Court’s monitoring of the SIT’s work has not proceeded beyond sealed covers and missed dates with the cause-list.

The Government’s setting up of another agency to investigate the Panama Papers, when the SIT is already doing a comprehensive job, has surprised observers, who suspect that a Government-appointed committee, without the independence enjoyed by the SIT, can not achieve much.

The SIT’s lack of a pro-active approach to investigating the preliminary leads from the leaks has also disappointed observers who ask what mere reports from the agencies to the SIT on the leaks can achieve.

Asked what being pro-active means in this area, an expert said that it would involve the Government’s active encouragement to whistleblowers to steal data from the likes of MF

Comparing public response to the leaks in other countries and in India, the expert lamented that no major political party has taken it up in a big way, and that is why the reaction here is very muted.

Photo by Nico2Panama

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