No, curbing it requires a radical overhaul of our political structure, but since the executive has failed to act in public interest the court had no other choice but to take matters into its own hands.
Senior Counsel, Supreme Court*
The order is nebulous and vague and it does not indicate the specific guidelines to be followed
The spectre of black money is one of the biggest problems facing our country. Unfortunately, neither the government in power nor other political parties have a clear-cut programme to meet this menace. A parallel currency is as bad as a parallel government. To solve the problem, all political parties will have to make a common resolve and consult experts for a final solution.
In that sense, the Supreme Court’s decision to appoint a Special Investigation Team (SIT) shows its earnest desire to tackle the problem. Having said that, it is also true that the appointment of SIT will not solve the problem. The order is nebulous and vague and it does not indicate the specific guidelines to be followed and whether any directions given by the SIT will be binding on the government or not.
So, the formation of an SIT amounts to being just another committee that will try to probe the enormous depth of this problem. It may become like one of the four blind people trying to describe the elephant by feeling various parts, as mentioned in the Panchatantra. But the fact is that the problem is far too serious and needs to extend beyond just a Supreme Court-appointed SIT.
That is because the menace of black money is intricately connected with corruption. So, to eliminate it, the entire structure of our administration and our political philosophy will have to change. The problem is two-fold. One is the immediate problem of unearthing the black money already in the country and that stashed outside the country. The next problem is to see that it is not generated in the future. For that, it is necessary to change the structure of our economy and the example should come from the top. When top ministers are accused of corruption and generating black money, it encourages people lower down to indulge in corruption and generating black money.
Solutions for the immediate problem and the future problem can be separately worked out. The solution to the problem of existing black money can be found through a voluntary disclosure scheme (VDS) that should give immunity from all the laws including the Prevention of Corruption Act. Past VDSs were only partially successful because the immunity from the Prevention of Corruption Act was not provided so bureaucrats and politicians could not take advantage of the scheme and bring their black money out in the open. Black money kept outside the country in foreign banks does not yield any returns and many people are interested in bringing that money back home, provided they get immunity and a slight concession in the rates. A system of discounted bearer bonds can address this issue but it has to be skillfully designed and properly implemented. The scheme should be designed not merely by bureaucrats but also by people who are conversant with tax laws as well as business people who are actively involved in the economy.
On the question of future generation of black money, it is important to examine the reasons responsible for it creation and try to change the system. All political parties must seriously think about this issue so that they do not have to depend on black money for elections, rallies and even day-to-day expenditure.
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To prevent the future generation of black money we must increasingly use electronic systems in administration to reduce the interface between citizens and bureaucrats. Second, we must do away with the controls and liberalise the economy as much as possible. Third, citizens should have access to the necessary and required information for their day-to-day activities. However, while doing so the Right to Information Act should not be allowed to be misused to violate individual privacy.
*Also NCP member in the Rajya Sabha
As told to Sanjay Jog
Former Chief Justice, Calcutta & Andhra Pradesh High Courts
The court has issued such orders only when others designated to act failed to do so
Article 32 of the Constitution of India empowers the Supreme Court to issue writs for the enforcement of fundamental rights conferred by part III of the Constitution. Fundamental rights include provisions to enforce laws of the land that protect, on the one hand, life and personal liberty of individuals and, on the other, such laws that impose reasonable restrictions on the exercise of the right conferred in the interest of, besides other things, public order, and in the interest of the state and public interest. It is fundamental indeed that the Constitution empowers the Supreme Court to make orders necessary to ensure that public interest is served. Parliament and state legislatures are given powers to make laws and courts are constituted to enforce them. There is no possibility of a conflict of interest or of the jurisdiction of court and legislatures if they keep their functions strictly within the limits prescribed by the Constitution or the laws made under it.
The Constitution provides that no discussion shall take place in Parliament with respect to the conduct of any judge of the Supreme Court or high court in the discharge of its duty except by way of a motion for presenting an address to the president for removal of a judge. It also provides that the validity of any proceeding in Parliament cannot be questioned on the ground of any alleged irregularity of procedure and also that no officers or members of Parliament in whom powers are vested for regulating procedure for the conduct of business or for maintaining order would be subject to the jurisdiction of any court in respect of those powers. These and other such provisions are made to ensure that no authority transgresses jurisdictional limitations. Why, then, is there discord or murmur when courts issue orders commanding the authorities to enforce laws and in cases in which such authorities, particularly executive authorities, fail to act in national and public interest? It will not be correct to say that in making such orders courts encroach on the jurisdiction of either the legislature or the executive authorities who are empowered to act for enforcing such provisions.
No one can say depositing money and transactions and deposits in a foreign bank in violation of laws should be ignored and such violators allowed to go free without being punished and that it will not affect national security and public interest. Against this background, let us appreciate the value of the appointment of the Special Investigation Team (SIT) by the Supreme Court to ensure that laws are implemented and black money is brought under proper action.
The point that the appointment of an SIT is innovative is uncalled for and misconceived. The court has appointed an SIT, for example, to investigate the Gujarat riot cases. This is the first time, however, that the court has appointed an SIT in a case associated with finance and black money. This has been done in the interest of the state and public interest. When the authorities concerned have failed to act, setting up an SIT is a noble cause and a step that urgently needed to be taken. Arguments that there are agencies assigned for such work and the court should have exercised discretion to direct any such authority to take steps instead of appointing an SIT are also uncalled for. The Bench of judges that has passed this order was also conscious of this fact. The SIT is constituted by taking officers from all such relevant agencies. Since any such agencies have limited powers, one or the other agency alone may not be able to locate and find black money, fix responsibility for violations and prosecute.
No one should feel hurt if a court asks authorities to act in the interest of the state and public interest. After all, the court has issued such orders only when others designated to act failed to do so. Such orders are a welcome relief in the prevailing situation.