It would certainly be an exaggeration to suggest that the advance of the Rule of Law in India hinges on the jurisprudence around the “sealed envelope.” And yet when one heard the discussion on television the other day, between the Attorney General of India, Mukul Rohtagi, and the TV anchor, Karan Thapar, on whether the decision by the government of India to give the names of those with black money accounts in Swiss banks to the Supreme Court violated the Double Tax Avoidance Agreement (DTAA) with France, one would be forgiven if one believed that this was indeed the case. Should the government of India have handed over to the Supreme Court of India the sealed envelope with the 627 names? Was this action a violation of the DTAA with France or was it consistent with the terms of the agreement? Are the arguments being advanced by legal officers pragmatic ones, i.e., there will be damaging international repercussions; or ones of principle, i.e., it was given to our Supreme Court and hence was concerned with our sovereignty? Can India be trusted as a country where the rule of law prevails? In the sealed envelope lie many issues of our constitutional democracy. Open it we must.Lines of inquiry
Listening carefully to the TV discussion, one discerned two possible lines of inquiry. The first is obviously legal where questions relating to the Supreme Court’s instruction and the government’s reluctant compliance with it, in the light of India’s treaty obligations, need to be examined in terms of the rule of law. The other, interestingly, is cultural where the many meanings of “the sealed envelope,” in our public discourse, needs detailing. Let me begin with the legal dimension.
For a public discussion, there are four substantive aspects of the legal case that need to be flagged. The first concerns “the jurisdiction” of the Supreme Court of India. While there are many fine issues of the law that will be debated by scholars and practitioners of international law, concerning treaty obligations and international bodies which have the authority to adjudicate over them, we must not lose sight of the single issue at stake here of the extent of the Supreme Court’s jurisdiction within our constitutional order. Even if there is a conflict between the court’s direction, to hand over to it the list of names in the government’s custody, and the treaty obligations which prevent the government from handing over names to anyone including a court except in a specific case where there is a prosecution under way against named persons, I would argue that the principle of sovereignty makes it binding on the government of India to hand over, if instructed, the entire list to the court. This single act establishes the sovereignty of our constitutional order. Our court will decide how the government shall act in a situation of multiple obligations including international ones.
Since the “rule of law” is a feature of the basic structure of the Constitution, and since the Supreme Court is the custodian, in the last instance, of this “basic structure,” as per the judgment in the Kesavananda Bharati case, it is safe to assume that the court will act consistently with the rule of law. Its decision is final as far as the rule of law is concerned. For some state or non-state external authority to seek to prohibit the government of India from sharing its data with the Supreme Court is both arrogant and wrong; arrogant because it downgrades the Indian Supreme Court to a subordinate status on matters of law, and wrong because it gives higher authority to an external authority.
Courts in the United States have repeatedly affirmed their own supremacy on jurisdictional issues, most recently in the hefty fine they levied, of about $9 billion, on the French Bank BNP Paribas.Rewarding the predator
This brings me to the second aspect, the nature of the existing international economic order which rewards predators, and justifies this structure of reward under the specious argument of the rule of law. There are many instances where Global Capital, particularly American, uses its domestic laws to punish, by law, those who stand up to its interests since, over the last few years, it has built up a web of interlocking laws, both domestic and international, that have ring-fenced these interests. The consequence of this, particularly for the global South, is that predators can seek protection by hiding behind laws in extraterritorial jurisdictions. These partisan laws protect the predator against the just claims of the victim. Look at the Bhopal gas tragedy case and compare it against BP in the Gulf of Mexico. The Indian Supreme Court standing up to these partisan laws that protect predators is in fact a blow for the rule of law. International tax havens and banks with secret accounts have in recent years succumbed to pressure from the U.S. government to reveal names of U.S. nationals who are tax avoiders. Here the defence of secrecy and privacy do not stand up to the U.S. demand. This courtesy, of revealing names is, however, not available to Countries of the Global South who do not have the means to impose their will. A powerful army is clearly a stronger argument to achieve desired outcomes than a powerful argument.
The third issue is whether the “sealed envelope” being handed over to the court meets the requirements of the rule of law, to protect the right to privacy of any individual, even one who is accused. The Attorney General seems to think there is no inconsistency in the list being handed over, in a sealed envelope, from the government of India’s custody, the party to the DTAA agreement, to the Supreme Court, which is a different institutional authority. As long as the envelope remains “sealed.” But what if the court opened the envelope? Would it amount to a breach of the DTAA? The Attorney General seemed to imply that this would be so and argued that the court should not open the envelope even though it has possession of it. So while the court has the names in a sealed envelope, and can choose to know who they are by opening the envelope, it chose to hand over the unopened envelope to the Special Investigation Team (SIT) constituted by it to investigate the black money case. Did the learned judges, by this action, align the Indian law with DTAA, thereby meeting both requirements of the supremacy of India’s Supreme Court and the protections to persons under DTAA?
This brings us to the fourth issue, the moral and legal issue of the status of the data. Since it was stolen data, and also data made available by a whistle-blower, can a constitutional system use this data for prosecution? Is the use of stolen data compatible with the rule of law? Does the fact that the data was confirmed by the government of France change its legal status as stolen data? Is this similar to the “doctrine of double effect” in moral philosophy, where an action that causes harm is permitted, as a side effect, if the primary purpose of the action is to promote some good end? Germany had to deal with this moral conundrum when stolen data from a Swiss bank, of German tax avoiders, was offered to the German government for a price. The German government bought the stolen data.Guarantee of impartiality
Now let me move to the other dimension, the political culture of the “sealed envelope.” The question of whether this is an Indian ritual or a colonial legacy is for historians to establish. For those of us who have worked on government committees, the “sealed envelope” guarantees the impartiality of the process. I have been a member of the executive committee of many universities and in many meetings, almost routinely, a “sealed envelope” is placed before the committee and we are informed that it contains the list of candidates, selected by a committee, for a professor’s position in a particular department. The sealed envelope has been in the possession of the registrar who, at the meeting, formally seeks the permission of the vice-chancellor to open it. This is given by a subtle nod. The envelope is then held up, higher than the table around which we are seated, as if to place it in the light and thereby show the members of the committee that the process is both proper and confidential. In some cases the envelope is sealed with red wax. A little ceremony of de-sealing the envelope then takes place, an important ritual of impartiality. None among the committee’s members even looks at the envelope. When was it sealed? Who sealed it? Could it have been done 20 minutes before the meeting, are questions too embarrassing to be asked. The opened envelope is not subjected to forensic examination. We have seen the raised sealed envelope. This is enough. Fairness is guaranteed. It meets the CAG’s requirement. I asked an eminent sociologist to give me his learned opinion on the semiotic significance of the sealed envelope for our democratic polity. He promised to give me his views in a sealed envelope.
(Peter Ronald deSouza is Professor at the Centre for the Study of Developing Societies. The views expressed are personal.)