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