Untitled Document

Let Our Country Hear: No More Que Sera, Sera (What Will Be, Shall Be)

A warning against the Mauritian trap, perish the thought, if Mauritius offers the North and South Agalega Islands as part of the deal for the continuance of the existing Indo-Mauritius Tax Treaty

Dated: July 17, 2012

by Shiva Kant Jha

It was inconceivable that our citizenry would ever smug under the notion with which Doctor Faustus, held ransom to Lucifer, had invited his doom: Que sera, sera” (What will be, shall be).

Shiva Kant Jha, On the Loom of Time p. 312

I acknowledge with high appreciation the concern shown by a brilliant young lawyer who has sent me an e-mail on 7 July 2012 in which he has expressed his reaction to the idea of an economic package under which our Government would allow the continuance of the regime created under the Indo-Mauritius Double Taxation Avoidance Agreement on the consideration of India acquiring two islands in the Indian Ocean, known as the Agalega Islands. It is interesting to quote his words as their semantic structure, and the nuances of expressions, express his shocking amazement at such an offer by Mauritius to India. He writes:

“I was intrigued by the idea that a country could cede their territorial and fiscal sovereignty to us concerning the Mauritius Double Taxation Treaty matter (to-days' Times of India and Economic Times papers etc). I am sure huge discrete concessions have or would have changed hands and/or be adjusted to accommodate this ridiculous proposition (at the coaxing of course of our polity.... or rather some members of it..... what makes it a crime... in my opinion... is that the peoples of India subsidize the wealthy.... at the cost of our social welfare and overall development of the nation? How long would this paradigm dreamed of by the unethical polity members be sustainable? and how long will it take to act? Who will act?”

I must appreciate this vigilant citizen's concern and commitment for public cause. Only such individuals can protect our nation's interests and honour. Before I examine the offer as it has come within the public domain, it worthwhile to quote a few suggestive lines from my memoir, On the Loom of Time (at p. 313):

“Women beware of Women tells us about Binaca Capello, an Italian beauty, who was ravished in the background of her husband's house, whilst in the foreground her protector was engrossed playing chess wholly unmindful to what was happening inside. This crime of ravishment was facilitated by Livia, professionally a procuress and corruptor, who had become a partner in the game of chess. When the sentinel on the qui vive, abandons trust, roguery takes a toll.”

The Times of India reports but Mauritius rejects whilst our Government keeps silence

The Times of India of July 6, 2012 has reported the Mauritian offer, and the unsolicited advice that Mauritius thought it fit to give to India suggesting the purposes for which those islands could be used to India's great benefit: to quote in extenso ---

“How far will a country go to secure a favourable deal for itself? Pretty far, it seems. Mauritius has offered a couple of sun-drenched islands to India as part of a trade and investment deal. While the offer has been talked about for a while, Mauritius has revived it - at a time when it's very keen on persevering with the 1983 double-taxation avoidance treaty with India.

Mauritius foreign affairs and trade minister Arvin Boolell said that it was up to India to use the islands to its advantage. He said the "blue economy" had great potential. India could use North and South Agalega Islands (which are located 1,100 km north of Mauritius and have an official total area of 70 sq km) for setting up hotels and tourist resorts, for trade, marine studies, or for building a strategic presence in the Indian Ocean, official sources told TOI. North Agalega Island also has an airstrip.

In November 2006, TOI had first reported about preliminary discussions between the two countries for handover of Agalega Islands - which is closer to India than the African country-for development as a tourism and trade hub.” [http://timesofindia.indiatimes.com/business/india-business/Mauritius-offers-India-2-islands-in-effort-to-preserve-tax-treaty/articleshow/14697220.cms].

On July 7, 2012, the Times of India published another report purporting to clarify what it had reported a day earlier: to quote---

“Mauritius foreign affairs and trade minister Arvin Boolell on Friday said that issue of handing over the Agalega Islands to India was not raised either on a standalone basis or as part of the double-tax avoidance agreement between India and Mauritius. "The issue was never discussed with the Indian authorities," he said in response to a TOI report which appeared on Friday.

The TOI report did not say that Boolell had raised the issue with the Indian authorities. Boolell also denied that he had named the Agalega Islands in his conversation about the islands with TOI - again, the report didn't say so. TOI had knowledge about an earlier proposal about the Agalega Islands and had, therefore, put a question on the two islands to which the minister had responded.

During the interaction with Boolell on Wednesday evening he was specifically asked about discussions on handing over "two islands to India". His reply was: "On any issue, Mauritius and India stand shoulder to shoulder. Now, when a request is made, you have to study... and make sure if there is any demand made, you have to see to it that it serve the interest of the two parties. Of course you have to be responsible to the interests of our people. On any issue, however sensitive or insensitive it is, it is dealt with based on the principles of goodwill and mutual respect." [http://timesofindia.indiatimes.com/business/india-business/Minister-clarifies-Mauritius-island-offer/articleshow/14727033.cms

The reader of this article should note the tone of exultation at discovering the possibilities of the acquisition of a territory in the sprawling Indian Ocean likely to become important both for commerce, finance and defence. In the clarificatory comment the said paper says: “TOI had knowledge about an earlier proposal about the Agalega Islands and had, therefore, put a question on the two islands to which the minister had responded.” The Wikipedia notes: “In early December 2006, the Indian newspaper, the Times of India, carried a series of reports that Mauritius had suggested transferring the Agalegas to India on a long lease in order to develop tourist infrastructure.” It supports its statement with the following references: I quote the references so that the readers can themselves see from them what the vigilant citizens should draw from them:

1. ^ "Mauritius asks India to develop remote Agalega Islands into tourist resort - Asia - Pacific". International Herald Tribune. 2009-03-29. http://www.iht.com/articles/ap/2006/11/25/asia/AS_GEN_India_Mauritius_Tourism.php. Retrieved 2010-04-29.

2. ^ Sidhartha, TNN, Nov 25, 2006, 12.45am IST (2006-11-25). "India eyes an island in the sun-India-The Times of India". Timesofindia.indiatimes.com. http://timesofindia.indiatimes.com/India_eyes_an_island_in_the_sun/articleshow/563606.cms.. Retrieved 2010-04-29.

3. ^ Sidhartha, TNN, Nov 25, 2006, 01.09am IST (2006-11-25). "India acquiring global footprint". Timesofindia.indiatimes.com. http://timesofindia.indiatimes.com/India_acquiring_global_footprint/articleshow/563642.cms . Retrieved 2010-04-29.

4. ^ TNN, Nov 28, 2006, 12.00am IST (2006-11-28). "Land Ahoy!-Editorial-Opinion-The Times of India". Timesofindia.indiatimes.com. http://timesofindia.indiatimes.com/OPINION/Editorial/Land_Ahoy/articleshow/606199.cms. Retrieved 2010-04-29.

What came out in the Times of India has also been reported in several other prestigious papers. It is interesting that this news evoked a wide public responses as is evident in the responses of many readers which you can read on the internet. I need not digress to those some commending the offer as India 's good fortune, others calling it a Mauritian trap. You will find on the internet some comments by persons who even apprehend bribery somewhere at work. I do not intend taking any position on such unseemly assertions. Only time would tell with what measure of integrity the countries conduct their diplomatic dealings in the affairs in which the people have great interest.

My objective this article is neither to support the veracity of such reports, nor to hold them false, or motivated. It is for our Government to take a position on the points reported. I have no access to any information except what has been reported by the prestigious The Times of India. I would be the happiest if the deal suggested is found wholly false. But this news under fast circulation cannot be ignored. We see how intelligent citizens have responded to the news. Besides, the news which surfaced in 2006 is still surfacing. It suggests that the idea is surely under circulation, or some decision pertaining to the matter is in the process of being done somewhere, obviously at high places. As most things in matters of tax treaties, tax havens, and secrecy jurisdictions are managed through an opaque administrative system, it is prudent for our citizenry to reflect on what has come out in the public domain. Whilst I do not doubt what Mauritius says, I am not in a position to ignore what is being reported. Besides, we are bound to remain vigilant. We have seen in this phase of economic globalization many instances when our nation's vital interests were surreptitiously undermined. It is unwise to trust sans prudence. I intend to write this article in the spirit that is well expressed in the well-known idiom: ‘forewarned is forearmed'. The people of India and the people of Mauritius have been great friends: so neither India nor Mauritius would like to acquire wrongful gains, or wrongful loss. The misuse of the Indo-Mauritius must come to an end: earlier it is done better it is for us all.

III

You may ask me: why should we cry wolf when nothing concrete has happened? Why should an Indian citizen cry when there is no proximate and clear cause of action? Mauritius has made an offer, and India is silent. We were told at our schools that an offer needs an acceptance to carry any weight. But I think this sort of criticism deserves to be rejected as it can often conceal traps under which unwittingly we might have the misfortune to groan. Besides, it is dangerous to trust even our government as it is seen that even governments can betray trust. Jean Dreze & Amartya Sen (in India Economic Development and Social Opportunity. P. 16,) said: “The implicit belief, expressed in some writings, that government interventions are, by and large, guided by the demands of social progress is surely a gigantic folly.” In this Section of the article I would tell you something about the ways I have seen our government operating.

Our people must not fail to recognize that it has become a political constant that the governments are accustomed to lie. This point had been well expressed by Thomas Mann in his Death in Venice (at p. 63): “And the fears of people supported the persistent official policy of silence and denial.” I would illustrate with the way our internal sovereign space was bartered to promote the interests of the vested interests and the corporations, mostly MNCs.

Explaining the background of the Uruguay Round Final Act. Writing about the way our executive government entered into the WTO Treaty, Muchkund Dubey rightly writes¹:

“During the best part of this period, the Government of India did not take any step known to the public, to renegotiate on issues of interest to India . No indication was given to the Parliament or to the public that the minimum must which India should have taken up for negotiation had been identified. Nor was there any indication that either the Director General of GATT or major negotiating partners had been notified of India 's negotiating position.”

In the early phases of the negotiations India was assertive on her stand that the ambit of the negotiations could not subsume issues relating to IPR protection as this issue was not relevant to a liberal multilateral trading system. Then came the sudden reversal of India 's position and an abject surrender in the mid-term review in Geneva in April 1989. What led to this shift in Government of India's position was not clear at first. But soon the real reason was known. “From the mid-term review session of the Trade Negotiation Committee in Montreal in December 1988, the word passed on to the Indian delegation at the political level was: “Do not appear to be ganging up against the Americans”. In operational terms, it meant that India should not try to be on the vanguard of the struggle of the developed countries ……..”². The Peoples' Commission Report on GATT by V R Krisna Iyer, O Chinappa Reddy, D A Desai, (all the former Hon'ble Judges of the Supreme Court); and Rajinder Sachar (the then Hon'ble Chief Justice of Delhi High Court) had reasons to wonder why the Government of India did not publish a position paper explaining the reasons for the radical shift in India's stance and the likely impact of providing enhanced levels of intellectual property protection and liberalization of investment and service industries demanded by the U.S. The Peoples' Commission found that the entire negotiating process was neither transparent, nor it showed any accountability to the elected representatives of people in a democracy. It further found that adequate information regarding India 's stance at the GATT negotiations, and the position taken by other countries was not given to the people or their representatives. The nature of the possible impact of the treaty under negotiation was never brought in public domain. The results of the Uruguay Round of Multilateral Trade Negotiations (“Dunkel Draft”) came out in several hundred pages in December 1991 as a fait accompli. When the imposed issues were to be legislatively implemented our Parliament felt wholly coerced.

When the Patents (Second Amendment Bill) was under consideration, Pranab Mukherjee justified the unequal treaty as it had been begotten in an unequal world! But the heart of Manoj Bhattacharya bled: he, with an iron in his soul, said in the Rajya Sabha:

“One thing transpired, that there is an element of helplessness; they are trying to plead that we are in a helpless condition, that we cannot do it because we are already a member of the WTO, we are already committed we are already in the trap; and so we cannot come out of that trap, and for that only we have to effect these changes to the already existing very, very good and very, very progressive Indian Patents Law of 1970”.

“Kindly forgive me for saying so, the multi-national corporations work only to amass super-profits”

“They work only to amass super-profits. They are not satisfied. Their lust is not satisfied with the profits only. Their lust is satisfied only with super-profits. They are working only for super-profits. They have no concern for the public health, they are not concerned for the ailing children of ours, they have got no concern for the malnutritioned women of our country and they have no concern for the poor people of this country”.

Whilst all these happened, our leaders, the press and other opinion-makers were over busy with the inane trivialities of self-seeking politicking. Never had such an indifference ever been shown by a democratic country when it had sufficient presentiment of a strange tsunami creeping fast to overtake it. This plight of the nation takes mind again to the days of the Nawab of Awadh when, whilst the imperial forces were on his head, the Nawab was playing with pigeons. I recall someone writing about a person who played chess in his portico unmindful of the fact that inside the house he was being robbed and his wife raped!

I have referred to the seminal facts about the entering into the WTO Treaty to underscore what has happened several times later, including when the Indo-U.S Nuclear Deal was effected. Never think that the silence of our government in the public domain is a good clear indicator of its position that no allurement would make it budge from the position to take strong actions to prevent the misuse of the Tax Treaty. Harold Pinter, a Nobel Prize w inning English playwright, aptly said: “…. the majority of politicians, on the evidence available to us, are interested not in truth but in power and in the maintenance of that power.” Things as we seem them operating in this era of corporate imperium, make us feel that Noam Chomsky is not wrong when he said: ‘Democracy' promotes the ‘national interests' which means, ‘the special interests of domestic sectors that are in a position to determine policy ', a fundamental trade-off between capitalist prosperity and economic security." He even said in his Failed States (at p. 223) : “Deceit is employed to undermine democracy, just as it s a natural device to undermine markets”;³

The North and South Agalega Islands : and their worth on the Stock Market

The idea that has been adroitly floated is just a trade-off a fundamental trade-off between turning Nelson's eye to what goes on through the Mauritian route, and the economic package that includes transferring two islands to acquire what they call an economic advantage of the continuance of the existing Indo-Mauritius Tax Treaty; "India to get the North and South Agalega Islands, and allow the loot of our nation go on through several ways, the most important being the misuse of the Indo-Mauritius Tax Treaty. Let us first see where these tiny terracotta exist on this wide globe. These islands are located 1,100 km north of Mauritius. They fall within the segment of the globe falling in latitudes 7 to 15, and longitude 45 to 60 in the Southern Hemisphere. The islands total area, as per the Mauritian version, comes to 70 km sq km. It is strange to note that event the extent of its area is subject to a controversy. The Wikipedia states: “The islands have a total area of 24 km² (North Island 14.3 km² and South Island 9.7 km²), although the official figure of 70 km² appears too high when compared with data from satellite images.” We get from the portal of the Republic of Mauritius that both the islands have a land area of 2,600 hectares (North Island - 12.5 kms long & 1.5 kms wide: South Island - 7 kms long & 4.5 kms wide).

The Wikipedia points out: (i) “Agalega is managed by a company of the State of Mauritius, the Outer Island Development Company (IDOC), a company which develops remote islands”; (ii) There is no running water on the island. Drinking water comes from rainwater collected by gutters”: (iii) “Agalega is connected to Mauritius by air and sea. The airstrip on the island in the north allows takeoff and landing of small aircraft”; (iv) for “ education, there is a primary school for the young, but pupils then continue their education in secondary schools in Mauritius”. A close study of the geopolitical situation would suggest that, at its best, the islands can be no more than a peripheral defence centre in the Indian Ocean . As the islands fall within the sphere that can come within the zone of interest of the U.S naval, forces operating from the British Indian Ocean Territory, the power controlling the Agalega Islands can someday be goaded, or dragged, to become a strategic partner of the power that operates from Diego Garcia, an Oceanic neighbour through far-off no doubt but separated only by the waves. The Agalega Islands do not have that remarkable biodiversity and marine wealth for which the Chagos Archipelago and its numerous islands and atolls, now integral to the British Indian Ocean Territory, are well known. We had heard how the great defenders of democracy, the U.K. and the U.S.A. had driven out the Chagossians from Chagos to allow the United States to build the Diego Garcia as a massive navy and military base, and as the centres for amassing military supplies for operations within their ken of supervision. It deserves to be noted that that land and the adjoining regions are not for ordinary humans: they are meant only for defence purposes. The coastal regions of the Agalegan islands are yet not known for economic resources. Nobody knows of what worth are the waters adjacent to the coasts, and of what worth are the bio-diverse resources in the water columns, and on the ocean floors, and also below the subjacent floors. We neither know much about the economic worth of the mainlands, nor do we know even a little about the coastal regions to measure the possibilities of the blue zone that covers the coastal slopes and the adjacent earth-crust under the waters. The habits of the marine species are yet to be known to see whether they love the islands, or shun them with hate. The islands are the group of barren places with a few coconuts offering delight to the dismal population not more than 300! Inland animals do not exist on the islands which abound in swamps. The ibises are the birds which might not delight you for long, though their legs and plumes might interest you for a short while.

We have no reasons to feel allured to the Mauritian offer, if there be any, even though the islands being offered are ' sun-drenched', and are capable to provide us scope to exploit what they call 'blue economy'. We have a lot of 'sun-drenched' places in India itself, we do not need these tiny-tots to be added to our plenty. Besides, the 'sun-drenched' regions abound in the tropics. Much of Africa are 'sun-drenched', yet....... Whether this in itself is a bliss or bane, we can measure by examining the plight of Congo and its adjoining areas. We know that of late the expression 'blue economy' has acquired currency to express the economic potentialities of the sea waters and their other resources. Gunter Pauli's T he Blue Economy: 10 years - 100 innovations - 100 million jobs suggests such possibilities. According to the Center for American Progress, some of the areas of the Blue Economy are (i) the promotion of fisheries; (ii) the promotion of tourism as an industry; (iii) the massive generation of employment on account the fishing and tourist industries, and on account of the development activities at land due to the activities in the 'blue economy', and (iv) the exploration of the possibilities of using the oceanic waters as the source of energy. [ see: http://news.softpedia.com/news/New-Project-Pushes-for-Blue-Economy-277977.shtml]. These economists are the sellers of dreams: we must not forget that most dreams are quickly lost.

The bluebirds are colourful, lovely and auspicious. See the spectrum of rainbow: the blue band is nearer, the green band is far off. But we need 'green economy', and only much after what they call 'blue economy'. Assuming that the 'blue economy' can go much towards making us go green, the idea is incredible when we reflect on such possibilities from Agalega. If we intend to accept the trade off between the continuance the predatory Mauritius Indo-Mauritius route to loot India and the acquisition of those two islands either on sale, or lease, or an outright gift, it would be prudent to constitute a committee of real experts to conduct what the call the Feasibility Study examining the points touching cost-benefit analysis, and operational feasibility. Such feasibility study must go together with the study of the constitutional, legal, and moral propriety. Let us not put ourselves in a situation in which we will feel inclined to curse our decision-makers in the words Mrs. Ramsey in Virginia Wolf's To the Lighthouse : "it was all as ephemeral as a rainbow."

I do not think there is anything in the Agalegan islands which can allure tourists on an extensive scale. I do not think people would go there to count the sea-waves, or merely to be kissed by the sun-rays, or to dance with the ibises which differ from the bluebirds as do chalk from cheese. It is a different matter that in more decadent days such places might become good for the sex-workers industry, or , if the WTO deliberations widen the concept of 'trade' further, then such wares can be traded from the foggy reefs of far-off places which can be traded in our country because of public vigilance. I must not pursue this point further. . Didn't great Tulsidas say: 'Let us not flog a point that in unseemly'.

Let us not repeat the past: my mind goes to what Mrs. Indira Gandhi, Pranab Mukherjee, and (also perhaps) Dr Manmohan Singh had done in 1982-1983.

This proposed deal as a part of what the experts say "an economic package" reminds me of another unfortunate 'politico-economic' package that had been effected in the Indo-Mauritius negations of 1982-83 . That had produced the present Indo-Mauritius Tax Treaty (the DTAA) the terms of which, they say, are under the consideration of both the countries for modification. They illustrate what we call the Brownian motions where the particles seem to move, but do not move. When I reflect on the style of the negotiations to modify the Indo-Mauritius Tax Treaty, it seems that our dominant government advisors and decision-makers know no more than what they have been during their stints at the World Bank, the IMF, and the WTO. I have good reasons to conclude that for them ‘democracy' that the people are managed to set up for the benefit of the corporation, and is run under the ultimate control of the global economic institutions of which those three are most important. Their remote role-models are Jagat Seth and Rid Khans who had worked to subjugate the Nawab of Bengal to the East India Company. This group moves fast to implement their hidden agenda, otherwise thy work as Kanik taught to Dhritarashtra in the Mahabharata [Aadiparva Chap. 139, shloka 88 ]:

‘If people expect anything to be done for general benefit, never fulfill that. Keep them expecting in vain for a long time. If ever it becomes possible to do good, create situations that make the delay go. It is prudent to go on deluding people by just keeping them on the tenterhooks, hoping all in vain.

Two factors, they say, worked in adopting the model and the provisions of that much misused treaty. They were:

First, the eagerness of our country in the early 1980s in order to make Mauritius support Indian cause in the UNO. Writing an article whilst the Indo-Mauritius Treaty misuse Case was before the Delhi High Court, I had written an article on Mauritius (which I now place on my website for our people to consider): to quote from the para 6 of that said article:

"In Eighties Mauritius faced many inconvenient problems. As one of the most densely populated countries it needed sovereignty of the Chagos Archipelago both for its burgeoning population and for strategic purposes. In August 1982 Prime Minister Indira Gandhi visited Mauritius , and supported its claim to the Chagos. It is to be noted that the Indo-Mauritius Convention was done at Port Louis on 24 th August 1982. In early Eighties the Mauritian economy was through a difficult time. Its economy largely depended on sugar production for which demand declined. “Meanwhile, the balance of payments deficit had grown alarmingly. For its size, Mauritius was one of the world's most indebted nations, with debts amounting to ê 432 million in March.” [1984 Britannica Book of the Year]."

Second, we all know that the most misused Indo-Mauritius Double Taxation Avoidance Convention was done in 1983 when Shri Pranab Mukherjee, the then Finance Minister, had been the F.M. And Dr Manmohan Singh, the present Prime Minister, had been the Governor of the Reserve Bank. Even in those early years of the onset of the so-called liberalization scandalous receipts had intruded in our country through craft and collusion. The so-called “round tripping” was on, and the conditions for “treaty shopping” had been assiduously created. Who knows more than they how through foggy routes from abroad tax-evaders and fraudsters keep on coming first in trickles, then in waves!

Nobody knows how and why the negotiators adopted the OECD Model of a tax treaty in 1982. The conjoint motives seem to be to appease Mauritius to get rich quick, and to invite the NRIs to invest in India . Writing about these matters, I brought to the notice of the Supreme Court in my Writ Petition (C) 445 of 2006 [PIL]:

"Even this Petitioner, while talking to Dr Manmohan Singh, in the context of some other PIL under hearing before the Hon'ble Delhi High Court, got straight from the horse's mouth that the prime object of the Indo-Mauritius tax treaty, when it was made, was to have more of foreign exchange as India needed it most at that time. The Petitioner appreciates the candour of Dr Singh in stating so though his researches have led him to the view that the maelstrom of the financial crisis in the early eighties were largely stage-managed to provide a free play for the corporate imperium which in the early eighties had established its sway thanks to the policies set afoot by Ronald Regan, the U.S. President under the pressure and persuasion of the U.S. corporate interests which were massively propagated as the only public interests."

I wish this new deal hibernating somewhere may not let down our nation's interest.

If we turn calculators

As we are now calculators at work in the global market, let us calculate for how much a commercial crook would like to buy both the islands about which there is much fuss in the public domain. This exercise can be undertaken as an exercise to understand the devil's game. For me it is a daunting task. Only they can calculate the worth of those two islands who know how to see countries, humans and the coconuts as the counters on the baffling structure, in features no different from a managed Stock Market!

We determine price of a piece of land by comparing the price disclosed in the comparable sales within a proximate time-frame. As such an exercise on the wide sea is not possible, I pause at the figure for which the Chagos Archipelago had been purchased ,in November 1965,from Mauritius to constitute the British Indian Ocean Territory (BIOT), to provide the U.S. stations to conduct military activities. We know that the USA needs the whole globe to remain a super-power not realizing that a country's, or a man's destiny is scripted in ways that these experts can never understand. World's history tells us loud, but who listens? We get in the Wikipedia that the deal was for "£3 million pounds". Acting under the BIOT Ordinance No 2, the British Government purchased all " the plantations throughout the Chagos archipelago for 660,000 pounds from The Chagos Agalega Company". If the vast Chagos Archipelago, with rich marine resources and vast wealth of bio-diversity features, could fetch, on sales under the conditioned environment, only that much, how much these two hair-like islands, almost bereft of exploitable resources, can be of worth for us? And what are we going to do with these clods already under the threat of getting submerged under the sea waters. Is it prudent to lose our legitimate revenues and our wealth for such tiny gains? What we lose in a year on account of the misuse of the Indo-Mauritius route is enough to provide resources to buy many more such islands, be they in the Indian Ocean, or in the Caribbean.

VII

If I let loose my fancy: a macabre scenario that we must reject

If ever I become the Devil's Advocate and Financial Planner, I can foresee the purposes to which such islands can possibly be put to use. I visualize them, in brief, though I do this with abhorrence.

(1). The Rogue Finance, that works to establish corporatocracy, would love to make those two islands their centres of operations They would make them in the Indian Ocean what the Caymans Islands, or the Virgin Islands are in the Caribbean. The Rogue Finance would establish in the Agalega Islands the counterparts of the Ugland House of the Caymans Islands, and the Cathedral Square of Mauritius. Please read my short article in my "In the Nutshell Series" at my website entitled: 'Let us play Columbus to explore the regions of Darkness on our good Earth'.

http://www.shivakantjha.org/openfile.php?filename=nutshell/nutshell-

11.htm&PHPSESSID=540d93168939e6b5eb64a0ace4df0627

On the scrutiny of their facts, I made the following observations which seem to me wholly apt:

"They love to operate through opaque systems so that the World can see the Trojan horse, but not the soldiers hidden in that."

"When I call such jurisdictions the Realm of Darkness, I do not call them so because the Sun does not shine there. The Sun shines their brighter, and almost all the year round, because the Caribbean is in the tropical region."

You may also see the Section (v) of my critique of the Vodafone Judgement that I had sent to the then Finance Minister: at http://shivakantjha.org/openfile.php?filename=legal/chapter2_vodafone.htm

(2). If such islands on the remote seas become part of the territory of India, the Rogue Finance would surely shift its Indian operations to these foggy places. They can become in the Indian Ocean what the islands are there in the Caribbean. Milton 's Comus, to which the Supreme Court refers in Shrisht Dhawan v. Shah Bros (AIR 1992 S C 1555,) says :

‘'T is only daylight that makes sin.

Patronizing the emergence of such economic centres would make our system even more opaque. And that would go against our Right to Know which is one of our fundamental rights, also in tune with our commitment under the U.N. Convention against Corruption to ensure transparency. We all know that the fundamental right to “freedom of speech and expression” cannot be exercised properly unless with it goes the Right to Know. Our Supreme Court has recognized the supreme importance of the Right to Know [see Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay Pvt. Ltd (AIR 1989 SC 190); S.N. Hegde v. The Lokayukta, Banglore (AIR 2004 NOC 169)].

(3). The quest to seek secret places to amass the looted wealth, or to set up stations to conspire against others, are the common traits of the herds of the greedy becoming grosser and grosser in this phase of the economic globalization. The factors which have contributed to the emergence of such trends are many which I have discussed in detail in the Chapter entitled the 'Realm of Darkness' in my memoir, in my On the Loom of Time . At the outset of the Chapter, I wrote a story that reveals how capitalism works when the State turns subservient to the syndicate of investors and the MNCs. It goes thus:

"One winter morning, I was having my morning walk in the District Park adjacent to my residence at Sarita Vihar in New Delhi . My wife, Veena, was with me. We saw two dogs running, one about two furlongs behind the other. The first one had a piece of meat in its mouth, a part inside its jaw but most part dangling outside. We saw that it ran inside a bush, and came out soon to counter the other rushing to invade the place where it had hidden its wealth. It illustrated what the idiom ‘dog in the manger' is known to suggest. They quarreled, fought tooth and nail till the guard of the garden showered his lathi on them to drive them away. We sat on the wooden bench to relax. It so happened that we saw two cats coming out of that bush: both happy and jovial licking each other lustily. They must have had their feast inside the bush, and now were out on their romantic errands. My wife put her gloss on what had happened. This is how the demonic persons, driven by greed, amass wealth, and hide that from others; but, in the end, go empty handed, perhaps with silent agony in their heart. Whenever I reflect on the ‘secrecy jurisdictions', and the ways of the greedy capitalists of our brave new world of the neoliberal ideas and strategies, my wife's that gloss on that event always comes to mind. My mind goes to the Mahabharata which tells us how it was a dog that had guided and escorted King Yudhisthira to heaven. I feel amused that her gloss has given me some understanding of why and how the structure of deception works enabling the Rogue Finance to dance casting its spell over the world, and also on the cyberspace."

(4) Let us not provide one more rendezvous to the crooks whose greed has no end. The ideas of much advertised 'corporate social responsibility' and 'corporate ethics' must not make us oblivious to the ways of their limitless greed. We all know how after the World War II the super-wealthy persons of America and Britain established financial services centres in the tiny islands in the oceans. Discussing the emergence of the 'new states system', I wrote in my memoir, On the Loom of Tme :

"The development of science and technology in the second half of the last century helped people to get access to all the areas on the globe. Thousands of islands in the Pacific, the Indian Ocean, and the Caribbean became easily accessible; and convenient network was established on our planet and in the cyberspace. Most of these places were suitable for hiding things. And by manipulating the elastic concepts of ‘territorial sovereignty', ‘residence' and ‘incorporation', many of them turned themselves into effective and inviting centres for fast growing international finance."

My mind goes with what I read in the Harivamsa (Chap. 30). It says:

[Not all the wealth, not all the women,
can satisfy the lusty urge of a single man;
When that is the truth, control thy desires,
As desires never end whatever you do.
They wax more and more whilst enjoyed
They flame forth as does fire when ghee is poured.
Then think, O Men, how to get real happiness,
Then think, O Men, how to trammel the desires.]

What will happen to the three hundred souls now living in Agalega Islands . The Chagossians had been driven out from Chagos. What will happen to those souls in Agalega? Will they be turned de facto slaves in the service of the super-rich? Will they become service-providers to those who will try to turn the islands into super-luxury hotels? Will their eviction become one more legal issue? I understand that certain matters relating to what happened to the Chagossians are even now before the European Court of Human Rights. Are the humans mere commodities to be traded to effect what is now called an 'economic package'? Can any state do such things in the ethos of our time? Are we still in the age when it was possible under a marriage treaty between England and Portugal to put Bombay in the vanity-bag of Catherine of Braganza, the daughter of the Portugese king King John married to the infamous British monarch Charles II. I know that there are several instances when parts of a country have been sold; we know several instances of the humans being transferred for consideration; and we are told by the present-day neoliberals that countries have gone, and the humans are mere commodities on their stock exchange or commodity market. Erich Fromm said in his The Sane Society (p. 356) , that man is now a commodity: ‘his value as a person lies in his saleability, not his human qualities of love, reason, or his artistic capacities'. I pray to God that our country never stoops to enter into such a phase of depravity as this sordid idea shocks us all except those whose souls are made captive by the IMF-WTO regime.

VIII

A General Warning to our Government, and a notice in rem, made pro bono publico

I deem it in public interest to assert in the public domain that the Government has no competence to enter into treaties which violate the provisions of our Constitution. The Government of India 's position on India 's Treaty-making power communicated to the Secretary General of the UNO in 1951 is wrong, and must be withdrawn. In that it had notified the world that : to quote from the U.N. Doc. ST/LEG/SER.B/3, at63-64 (Dec. 1952) (Memorandum of April 19, 1951: it asserts---

“Parliament has not made any laws so far on the subject, and , until it does so, the President's power to enter into treaties (which is after all an executive act) remains unfettered by any “internal constitutional restrictions.”

The text of our Government's Circular is quoted in National Treaty Law and Practice ed. Duncan B Hollis, Merritt R. Blakeslee & L. Benjamin Ederington p. 356-357 (2005 Boston). It is submitted that this Circular must be withdrawn as it gives to all the countries wrong ideas about India's constitutional position, and is capable of seriously embarrassing not only our citizenry but also our Courts and Parliament as they too become bound in terms of treaty obligations under the eyes of public international law which saddle even them to the incidence of International Responsibility if incurred through treaties. I may mention that I brought a Writ Petition before the Delhi High Court seeking, in public interest, the issuance of appropriate directions, orders or writs in the nature of mandamus or declaration, or any other writ or order to the Central Government so that the executive acts, done even at the international plane, but ultra vires the Constitution of India, were held domestically inoperative. The Government of India did not dispute in its Counter-Affidavit.

The above mentioned constitutional issue was raised by through a Writ Petition, which was withdrawn, and was moved before the Delhi High Court. It was done under the circumstances thus brought out in the first para of the Writ Petition (C) No. 1357 of 2007: to quote---

"The issues raised in this Writ Petition had been raised in a petition under Art 32 before the Supreme Court of India on August 19, 2006. The matter came up for a preliminary hearing before a Division Bench of the Hon'ble Supreme Court on Oct. 9, 2006 . The Writ Petition had to be withdrawn as the Hon'ble Judges persistently observed that this Petitioner should have invoked jurisdiction of the High Court under Art 226 of the Constitution. Per its order the Court granted ‘liberty to seek other appropriate remedies'. ....On Nov. 17, 2006 a Division Bench of this High Court directed the petitioner to file a petition ‘more focused, short and precise to the issues raised', and for that reason granted ‘permission to withdraw the petition with liberty to file a fresh petition, making it short and precise and particularly, focusing on the main issues.' Hence this petition shortened by more than 50% and has been virtually re-written in compliance with this Hon'ble Court 's directions, .... It was not possible to make it more precise as some of the greatest constitutional issues, raised for the first time before an Indian court, are to be placed per this petition before this Hon'ble Court. The issues raised have got great domestic and international consequences in this phase of Economic Globalization; and the judicial decisions thereon would be of concern to the people in most jurisdictions world over. This petition is filed wholly and exclusively pro bono publico in due discharge of what the petitioner considers his public duty as a citizen of the Republic of India."

A Division Bench of the High Court (Coram: Sanjay Kishan Kaul and Ajit Bharihoke JJ) declared in their judgment, given in the open court, on November 11, 2009:

“….. insofar as the fundamental question of any act of the Government in pursuance to an international treaty resulting in violation of any provision of the Constitution or not satisfying the test of being in compliance with the doctrine of basic structure is concerned, the respondents do not even dispute the said position and have drawn our attention to their counter affidavit where while dealing with the treaty making power of the Union executive and the Parliament it has been stated in para 1 “it is humbly submitted that the Government of India can only enter into a treaty in conformity with the constitutional provisions laid down in the Constitution of India”.

As I felt the High Court did not decide some of the core issues, I filed the Special Leave Petition before the Supreme Court. I argued the matter on August 16, 2010. The Times of India of August 17, 2010 made some insightful comments under a suggestive title: “Centre's treaty-making power must conform to Constitution: SC”. The comment, I would have made on the observations of the Supreme Court, has been insightfully made by the journalist who said:

"A petitioner, advocate Shiva Kant Jha, complained before a Bench comprising Chief Justice S H Kapadia and Justice K S Radhakrishnan that the executive was going ahead and signing a large number of multilateral treaties to fulfil its WTO obligations and was refusing to adhere to constitutional provisions. When he argued that Delhi High Court had dismissed his petition on the ground that treaty-making power of the executive was not subject to the constitutional framework, the Bench said, “Who says it is not. If you show us that a certain provision was in breach of the Constitution, certainly the apex court can examine it. Such treaties which violate the basic structure of the Constitution will be struck down. This is already stated in the HC judgment.”…Though the court did not entertain the petition, it surely showed a shift in approach in scrutinizing the constitutional validity of the multilateral and bilateral agreements entered into by India."

I most humbly submit that when our government enters into any Understanding, Agreement, or Treaty, it must not forget the following mandatory norms sacrosanct under our Constitution:

1. The Sovereignty of the Republic of India is essentially a matter of constitutional arrangement which provides structured government with powers granted under express constitutional limitations.

2. The Executive does not possess any “hip-pocket” of unaccountable powers”, and has no carte blanche even at the international plane.

3. The executive act, whether within the domestic jurisdiction, or at the international plane, must conform to the constitutional provisions governing its competence.

4. The direct sequel to the above propositions is that the Central Government cannot enter into a treaty which, directly or indirectly, violates the Fundamental Rights or the Basic Structure of the Constitution; and if it does so, that treaty must be held domestically inoperative.

But I have found on good grounds that these norms are not palatable to the neoliberals, to those effectively brainwashed by the IMF-WTO. If you wish to go into details, please the Chapter 21 ('Our Constitution at Work') of my memoir On the Loom of Time.

One thing more. When the Indo-Mauritius Double Taxation Convention had been signed in 1983, Mauritius was ‘was a constitutional monarchy with the British monarch as head of the state.' ‘It was 1991 when a constitutional amendment was passed, providing for a republican form of government, with the president as head of the state.' We all know that it is the British view of the Treaty-making power that prevails in Mauritius , because its Constitution has not gone counter to the British ideas pertaining to the Treaty-Making power by distributing the entire gamut of the state's sovereign powers through its constitution, as has been done by our Constitution. Those who carry on deliberations with Mauritius must not forget that they are bound by our Constitution whether they act in New Delhi, or Port Louis.

Let us for a minute play the game that the speculators play getting cheers from the mainstream media. Whose interest this news, which is the subject-matter of the article, can possibly promote? I have racked my brain but I am not out of the labyrinth and darkness, and I feel prudent to keep my mouth shut. My mind runs hopping from point to point without coming to any conclusion. Whose interest, in effect, gets promoted by spreading such a news? It is possible to keep hopping from an assumption to assumption despite the possibility that the whole pursuit may turn out wholly foolish. I do not know. But there is no harm if we evaluate ideas like these:

(i). Our government might have engineered things to acquire places to have its own Diego Garcia in the Indian Ocean to intoxicate our people with the dreams of military power ruling the waves, as the GDP-driven dreams are not getting enough customers. This might help it even to play second fiddle to the USA , after establishing a strategic partnership through the Indo-US Nuclear Deal. Besides, our government would succeed the ruffled feelings of the criminals all brands by providing them with an wonderful Alsatia (an area around Whitefriars, London, in the 17th century, which was a sanctuary for criminals and debtors) about which the common people of our country would know hardly anything.

(ii). The Mauritius Government might have thought fit, on cost/benefit analysis, to part with such islands in order to go on with greater crescendo reaping the harvest of licit and illicit gains under the unwise and predatory Tax Treaty.

(iii). The neoliberal thinkers, and their institutions might have contemplated such things to happen to provide one more centre for the Rogue Finance in the best service of the Indian fraudsters and sharp operators who know best how to get things going all unnoticed as they work on the entente cordiale of fraud and collusion. I recall the pregnant words of Nehru who, writing about the USA , had said:

“This “Big Business” ruled the country. They chose the President, they made the laws, and often enough they broke the laws. There was tremendous corruption in this Big Business, but the American people did not mind so long as there was general prosperity.”

I do not know whether things have changed even now.

(iv). The MNCs might have striven, with all their ignoble strategies for which they are well known, to build one more Sone Ki Lanka on the waves till it becomes feasible to build some cloud castle in the cyberspace. The humans plan for few years only because they die, but the corporations can plan for centuries because they never die (they only commit suicide). Besides the 'corporations' are never vexed by 'conscience' which might trouble even a human crook sometime, somewhere, in life.

(v). Some corporations already existing, or some super-rich eager to promote one, might have thought to get the islands for the corporation to run paying lip-service to some established government. They say that even now those islands are managed , by the Outer Island Development Company (IDOC), said to be under the control of the State of Mauritius.

(vi). Can't this proposal emanate in the strategy of financial planners, tax-planners, and the wealth managers? The possibility os such moles at work cannot be ruled out. They have access to the most powerful; and they appear to be on the hotline with the global gladiators of the present-day economic architecture. They reap vast fortune through their crafts, and they even corrupt our system in many subtle ways. They have within them the stuff with which Sir Basi Zaharoff had corrupted public institutions. Read what Pandit Nehru had written about him in s Glimpses of World History, and evaluate what we see around us going on with no sense of shame. Nehru wrote in Chapter158:

“Two very able Greeks happened to be friends of Lloyd George, who was then Prime Minister in England and very powerful in the Allied councils. One of these was Venizelos, Prime Minister of Greece. The other is a very mysterious person, known as Sir Basil Zaharoff, although his original name was Basileios Zacharias. As a young man, as early as 1877, he became the agent in the Balkans for a British armament firm. When the World War ended, he was the richest man in Europe and perhaps in the world, and great statesmen and governments delighted to honour him…. The public knew little about him and he kept away from the limelight. He was, indeed, the typical modern international financer who feels at home in many countries and influences and, to some extent, even controls governments of various democratic countries. People have a sensation of governing themselves in such countries, but behind them, unseen, stands the real power, international finance.”

I need not go on counting such sinister possibilities in which I neither believe, nor ever wish to believe: only Time will tell us what is happening under a shroud of fog.

Why have I wasted so much of your time? My Apology laced with my reasons.

Why have I wasted about 9000 words? We are told that we have much abler persons, with high academic distinctions and global credentials certified by the IMF-WTO combine, to run our government. I do not wish to say anything on the point. I would again quote a few lines from Nehru's Glimpses of World History :

"Men in authority---kings, statesmen, generals, and the like---are advertised and boomed up so much by the press and otherwise that they often appear as giants of thought and action to the common people. A kind of halo seems to surround them, and in our ignorance we attribute to them many qualities which they are far from possessing. But on closer acquaintance they turn out to be very ordinary persons. A famous Austrian statesman once said that the world would be astounded if it knew with what little intelligence it is ruled.”

All the citizens must remember what was put so well by John Philpot Curran: "The condition upon which God hath given liberty to man is eternal vigilance".

Conclusion best expressed

Some years ago, the then Pope said that silence with which the world witnessed the Hiroshima was culpable and criminal. Let not our children ask the question, ‘Where were you when mafia rule brooded over benighted country.'

- N.A. Palkhivala

1 An Unequal Treaty pp. 9-10.

2 Ibid p.8.

3 Chomsky, Failed States p. 223