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Administrative Law:Writ petition filed by former Union law minister - Allegation regarding transfers and accumulation of unaccounted monies by many individuals and other legal entities in foreign banks - Petition specifically named Hassan Ali and Tapurias as party to such illegal activities - Supreme Court expressed its concern not merely to the quantum of monies said to have been secreted away in foreign banks, but also the manner in which they may have been taken away from the country and also expressed worries also with regard to the nature of activities that such monies may engender, both in terms of the concentration of economic power, and also the fact that such monies may be transferred to groups and individuals who may use them for unlawful activities that are extremely dangerous to the nation - Union of India did not give satisfactory explanation for slowness of the pace of investigation - It was only upon the insistence and intervention of Supreme Court that the Enforcement Directorate initiated and secured custodial interrogation over Hassan Ali Khan - Union of India explicitly acknowledged that there was much desired with the manner in which the investigation had proceeded prior to the intervention of the Court - Union of India, on account of its more recent efforts to conduct the investigation with seriousness led to the securing of additional information, and leads, which could aid in further investigation - During the continuing interrogation of Hassan Ali Khan and the Tapurias, undertaken at the behest of the Supreme Court, many names of important persons, including leaders of some corporate giants, politically powerful people, and international arms dealers cropped up - Supreme Court proposed to the Union of India that the High Level Committee constituted by it be converted into a Special Investigation Team, headed by two retired judges of the Supreme Court of India - Union of India to issue appropriate notification and publish the same forthwith. Concept of a "soft state" - Held: Is a broad based assessment of the degree to which the State, and its machinery, is equipped to deal with its responsibilities of governance - The more soft the State is, greater the likelihood that there is an unholy nexus between the law maker, the law keeper, and the law breaker - The issue of unaccounted monies held by nationals, and other legal entities, in foreign banks, is of primordial importance to the welfare of the citizens - The quantum of such monies may be rough indicators of the weakness of the State, in terms of both crime prevention, and also of tax collection - Depending on the volume of such monies, and the number of incidents through which such monies are generated and secreted away, it may very well reveal the degree of "softness of the State." Public function - Responsibilities of State - Discussed. Fragmentation of administration - Effect of - Discussed. Double Taxation Avoidance Agreement: Writ petition - Allegation regarding transfers of monies, and accumulation of monies, which are unaccounted for by many individuals and other legal entities in the country, in foreign banks - Disclosure sought by the petitioners of certain documents relied upon by the Government - Supreme Court strongly disapproved the stand taken by the Government that the names of the tax evaders was a "secret" and could not be revealed under the lndo German Double Taxation Avoidance Agreement - The said agreement, by itself, did not proscribe the disclosure of the relevant documents and details of the same, including the names of various bank account holders in Liechtenstein - 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 - It does not even remotely touch upon information regarding Indian citizens' bank accounts in Liechtenstein that Germany secures and shares that have no bearing upon the matters that are covered by the double c taxation agreement between the two countries - In fact, the "information" that is referred to in Article 26 is that which is "necessary for carrying out the purposes of the lndo-German DTAA - Instead the agreement specifically provides that the information may be disclosed in public court proceedings, which the instant proceedings are - The proceedings in the instant matter relate both to the issue of tax collection with respect to unaccounted monies deposited into foreign bank accounts, as well as with issues relating to the manner in which such monies were generated, which may include activities that are criminal in nature also - Therefore, the information sought does not faff within the ambit of this provision - It is disingenuous for the Union of India, under these circumstances, to repeatedly claim that it is unable to reveal the documents and names as sought by the petitioners on the ground that the same is proscribed by the said agreement. Vienna Convention of the Law of Treaties, 1969: Article 31 - Interpretation of treaties - General Rule of Interpretation - Held: It provides that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose - While India is not a party to the Vienna Convention, it contains many principles of customary international law, and the principle of interpretation, of Article 31 provides a broad guideline as to what could be an appropriate manner of interpreting a treaty in the Indian context also. Constitution of India, 1950: Article 32 - Writ petition - In the writ proceeding, petitioner seeking certain documents referenced by the Union of India - Held: Constitution guarantees the right, pursuant to Clause (1) of Article 32, to petition Supreme Court on the ground that the rights guaranteed under Part Ill of the Constitution have been violated - This provision is a part of the basic structure of the Constitution - Clause (2) of Article 32 empowers the Supreme Court to issue "directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of any of the rights conferred by" Part Ill - This is also a part of the basic structure of the Constitution - In order that the right guaranteed by Clause (1) of Article 32 be meaningful, and particularly because such petitions seek the protection of fundamental rights, it is imperative that in such proceedings the petitioners are not denied the information necessary for them to properly articulate the case and be heard, especially where such information is in the possession of the State - To deny access to such information, without citing any constitutional principle or enumerated grounds of constitutional prohibition, would be to thwart the right granted by Clause (1) of Article 32 - Burden of asserting, and proving, by relevant evidence a claim in judicial proceedings would ordinarily be placed upon the proponent of such a claim, however, the burden of protection of fundamental rights is primarily the duty of the State - Consequently, unless constitutional grounds exist, the State may not act in a manner that hinders the Supreme Court from rendering complete justice in such proceedings - The State has the duty, generally, to reveal all the facts and information in its possession to the Court, and also provide the same to the petitioners - This is so, because the petitioners would also then be enabled to bring to light facts and the law that may be relevant for the Court in rendering its decision - However, revelation of details of bank accounts of individuals, without establishment of prima facie grounds to accuse them of wrong doing, would be a violation of their B rights to privacy - Details of bank accounts can be used by those who want to harass, or otherwise cause damage, to individuals - No conclusion can be drawn as to whether those who have not been investigated, or only partially investigated and proceedings not initiated have committed any wrong c doing - There is no presumption that every account holder in banks of Liechtenstein has acted unlawfully - In these circumstances, it would be inappropriate to order disclosure of such names, even in the context of proceedings under Clause (1) of Article 32. Article 21 - Right to privacy is an integral part of right to life - The rights of citizens, to effectively seek the protection of fundamental rights, under Clause (1) of Article 32 have to be balanced against the rights of citizens and persons under Article 21 - The notion of fundamental rights, such as a right to privacy as part of right to life, is not merely that the State is enjoined from derogating from them - It also includes the responsibility of the State to uphold them against the actions of others in the society, even in the context of exercise of fundamental rights by those others - The revelation of details of bank accounts of individuals, without establishment of prima facie grounds to accuse them of wrong doing, would be a violation of their rights to privacy - Details of bank accounts can be used by those who want to harass, or otherwise cause damage, to individuals - No conclusion can be drawn as to whether those who have not been investigated, or only partially investigated and proceedings not initiated have committed any wrong doing. Treaties: Governments entering into treaties - Held: Such act of governments can only be lawful when exercised within the four corners of constitutional permissibility - No treaty can be entered into, or interpreted, such that constitutional fealty is derogated from. |
