‘On the black money issue, BJP has acquired wisdom belatedly’

Senior Supreme Court advocate and Rajya Sabha member K.T.S. Tulsi spoke to Pawan Bali and Nishtha Grover about the recent controversy over black money stashed abroad. He is not too optimistic of an outcome either and believes that the big fish will escape.

The Centre replied to the Supreme Court on the black money issue saying that they are bound by the confidentiality clause. How do you view that?
When did the Bharatiya Janata Party read the Double Taxation Avoidance Agreement for the first time? Did it read it after or before it came to power? If the BJP leaders had not read it before they started stalling Parliament for one year by asking the United Progressive Alliance to disclose names then and there, they simply threatened the government. They asked the names of the account holders to be disclosed. So if they had not read the treaty, why were they shooting in the dark? Were they not aware of Article 26 of the treaty with Switzerland that clearly states that information can only be given to the court? Was the BJP at that time seeking disclosure of names to frustrate the then government? Was it a deliberate attempt to cause breach of treaty, so that the Swiss government would not send the names? How can a political party take a stand and within a day reverse it? Now the BJP says it can’t disclose the names. Suddenly they have learnt about the clause. It is shocking to see them take a U-turn on an issue which they held so closely.
With this attitude, people will stop trusting politicians.

The legal community has two views, one is to reveal the names of the account holders and the other view — led by the attorney-general — says that the disclosure will have an impact on the treaties the country has signed. What’s your take on this?
The treaty with Switzerland is clear and categorical. It states that the information — even secret information — can only be shared with court for computing tax liability and prosecution. The information can be revealed to a judicial proceeding.
Prashant Bhushan claims that the information is stolen, to which the bench said that it is not correct. In India there is a law that states if the document is illegally procured, the court will suffer and prosecution will suffer too. Are we simply trying to score political points and are we just opposing for the sake of opposing?
I feel, the BJP has acquired wisdom belatedly. Treaty is a valid source of law; courts are bound by it.

Even though the information was stolen, are you saying the information was given under the act and we cannot use it?
We cannot do anything with that information, the banks from which the information has been procured, are not validating. We cannot prosecute solely on the basis of the list; there has to be some confirmation and verification of the information. Any information needs a stamp of authentication.

How do we expect the special investigation team (SIT) to function in this case?
The SIT has to seek confirmation of this information from the authentic source. SIT is an investigative body, it can seek disclosure from the authentic source even under the treaty. To investigate we need to seek supporting documents, which give details of the accounts. A lot of information has to be gathered.
SIT consists of judges who have great ability. However, being a judge and being an investigator are two different things. Many times investigators work in ways which cannot be disclosed. They cannot disclose their leads. They intercept phone calls and change identity to unearth information. To successfully investigate, officers are needed who can bring information. A 17-member SIT cannot get such copious amounts of information. Judges are used to adjudicating, collecting material is not their cup of tea.

Do you think people can be prosecuted on the basis of this list?
Till the document is authenticated by the banks, we cannot begin any prosecution. We can hardly do any investigations. A bank account has been opened abroad, we are entirely depending on the banks to provide information. They have to give us the documents for prosecution. Eventually they will have to come as witnesses to authenticate the signature and transactions. Details of transactions have to be given. And as per the treaty once the account is closed, the bank is not liable to give any information.

The finance minister had recently informed reporters that the income-tax department had investigated many cases, on the basis of which they plan to seek information from the Swiss authorities. Your comments.
Once they seek information, they can launch prosecution. They have to get certified copies of the documents first. It is yet to been seen what comes out of their investigations.

So in that case can we deduce that the entire black money issue was a political one?
Of course the whole controversy was political; the BJP only wanted to raise the hopes of people. Nothing can be done in 100 days. Nobody cares about the interest of the nation.

Do you think the big fish will escape and only the small fish will get caught?
That’s right. Big fish will escape because they will have 100 excuses.

What do you make of the finance minister’s statement that the list will reveal many names of the former UPA ministers?
I do not think that kind of comment should have been made. It is plainly playing politics with black money issue. Crime has no colour or communal affiliation. It matters little whether there is one or 20 ministers of any party. They have to be dealt with. They should start with the largest account holder. There should be a focused criteria. It is not necessary to go after political opponents.