Non-Functioning of the Government on the issue of India’s Black Money is the only reason to move the Review Petition

Supreme Court of India

Exposure of the Non-Functioning of the Government on the issue of India’s Black Money is the only reason to move the Review Petition, otherwise Government should have welcomed the order dated 4th July, 2011, passed by the Supreme Court, in Writ Petition (civil) 176 of 2009 (Ram Jethmalani and others Vs- Union of India and others).

By Milap Choraria

It is really amazing to note from the some foregoing extract from the Order that despite the strict monitoring and constant scanning by the Supreme Court, the investigative wings did very little to inspire confidence even in the highest court of the land. It goes without saying that the investigations on India’s Black Money have serious implications for both internal and external security of our country. Another relevant part of the judgment brings out the state of one of our investigative agencies and perhaps a case of connivance so brilliantly. The judgment highlighting the investigation and undue haste shown to file the charge sheet without even consulting the High powered committee constituted for the purpose. The way the Government has opposed to the formation of an SIT (Special Investigation Team) by filing Review Petition is clearly mirrored in the following portion of the judgment. 


 The named individuals were very much present in the country. Yet, for unknown, and possibly unknowable,   though easily surmisable, reasons the investigations into the matter proceeded at a laggardly pace. Even the named individuals   had not yet been questioned with any degree of seriousness. These are serious lapses, especially   when viewed from the perspective of larger issues of security, both internal and external, of the country.”(Para 20)

 “We must express our serious reservations about the responses of the Union of India. In   the   first   instance,  during   the   earlier phases of hearing before us, the attempts were clearly evasive, confused, or originating in the denial mode. It was only   upon   being   repeatedly pressed by us did the Union of India begin to admit that indeed the   investigation   was   proceeding   very   slowly.   It also became clear to us that in fact the investigation had completely   stalled,  in   as   much  as   custodial   interrogation of   Hassan   Ali   Khan   had   not   even   been   sought   for, even though   he   was   very   much   resident   in   India.   Further,   it also now appears that even though his passport had been impounded, he was able to secure another passport from the   RPO   in   Patna,   possibly   with   the   help   or   aid   of   a politician.” (Para35)

 “During   the   course   of   the   hearings   the   Union   of   India repeatedly   insisted   that   the   matter   involves   many    jurisdictions, across the globe, and a proper investigation could be accomplished only through the concerted efforts by   different   law   enforcement   agencies,   both   within   the Central Government, and also various State governments. However,   the   absence   of   any   satisfactory   explanation   of the slowness of the pace of investigation, and lack of any credible   answers   as   to   why   the   respondents   did   not   act with   respect   to   those   actions   that   were   feasible,   and within the ambit of powers of the Enforcement Directorate itself, such as custodial investigation, leads us to conclude that   the   lack   of   seriousness   in   the   efforts   of   the respondents are contrary to the requirements of laws and constitutional obligations of the Union of India. It was only upon the insistence and intervention of this Court has the Enforcement Directorate initiated and secured custodial interrogation over Hassan Ali Khan. The Union of India has explicitly   acknowledged   that   there was much to be desired with the manner in which the investigation had proceeded prior to the intervention of this court.” (Para36)

“For   instance,   during the continuing interrogation   of   Hassan   Ali   Khan   and   the   Tapurias, undertaken for the first time at the behest of this Court, many   names   of   important   persons,   including   leaders   of some   corporate   giants,   politically   powerful   people,   and international   arms   dealers   have   cropped   up.   So   far,   no significant   attempt   has   been   made   to   investigate   and verify   the   same.   This   is   a   further   cause   for   the   grave concerns   of   this   Court,   and   points   to   the   need   for continued, effective and day to day monitoring by a SIT constituted   by   this   Court,   and   acting   on   behalf, behest and direction of this Court.” (Para36)

 While it would appear, from the Status Reports submitted to this Court, that the Enforcement Directorate has moved in some small measure, the actual facts are not comforting to an appropriate extent. In fact we are not convinced that the situation has changed   to the extent that it ought to so as to accept   that   the investigation would now be conducted with the degree of seriousness that is warranted. According to the Union of India the HLC was formed in order to take charge of and direct the entire investigation, and subsequently, the prosecution. In the meanwhile a charge sheet has been filed against   Hassan Ali Khan. Upon inquiry   by   us   as   to whether the charge-sheet had been vetted by the HLC, and its inputs secured, the counsel for Union of India were flummoxed.  The fact was that   the   charge-sheet   had   not been given even for the perusal of the HLC, let alone securing its inputs, guidance and direction. We are not satisfied by the explanation offered by the Directorate of Enforcement by way   of affidavit after the orders were reserved.” (Para38)

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