PIL I

A Critique on the Misuse of the Indo-Mauritius Double Taxation Convention

My Quest through the Fog; & My Reflections on the Cavalcades of Events

[Summary of Events in the Courts]

[Note: As this was a PIL of great national importance, I consider it my duty to render an account to our citizenry of what this humble petitioner did on their behalf. If anybody thinks I went wrong somewhere, he will be under his duty to the nation to correct me, and also to assist the Court to decide the issues in conformity with the constitutional parameters pro bono publico. If I die before I reach a cul-de-sac, I authorize any public-spirited citizen to act, act, and act in the light of his prudence keeping in mind what Krishna said: karmany eva ‘dhikaras te, ma phalesu kadacana. I pray that my faults, which will be surely many, be excused, and the cause undertaken by me advanced. Every citizen is authorized to use the materials in the folder on PIL in my website in promoting the cause of our Republic; but I expect that this website would be acknowledged wherever materials herefrom are used]

I

An Apology at the Outset

Whilst concluding my Writ Petition 334/2005 [Shiva Kant Jha v. Union of India & Ors ], I had tendered my apology in these words:

"521.That this Petitioner begs to be pardoned for presenting the issues involved in this Writ Petition in a very wide sweep on a very broad canvas. This was designed to bring to the judicial consciousness the fact that the world into which our destiny has hurled us, is not the conventional world with which it is most often familiar. He felt that through the conventional legalese and governmentese he could not have brought out his case in the round. A most characteristic feature of the global ethos is the studied strategy of the experts, the financial press, the lobbyists, the persuaders et al to mask the existence of the suffering millions, to mask the tainted wealth of all sorts of persons, to mask the financial transactions, to mask the real operators in corporate capsules, to mask the masqueraders raiding treaty benefits, to mask the terrorists so that they achieve their ends, to mask the sold souls holding high political offices……This Petitioner feels, and his impression is proved to the hilt in course of his research which he has made in conducting this case, that we are witnessing an ersatz version of John Milton’s Comus. A Masque presented at Ludlow Castle. The prime mover of this Writ Petition is to assert before this Hon’ble Court that the Rule of Law, rather than the Rule of Comus be assured [1] . This Petitioner in his most humble way, absolutely without any personal or professional interest, has tried to bring to this Hon’ble Court’s certain gross lapses in our public life believing in the ever-inspiring words of the Bhagavadgita:

Atmaiva hy atmano bandhur
Atmaiva ripur atmanah. [2].."

An apology is also tendered to all those who feel, perish the thought, hurt by any expression used in the Writ Petition, or other documents. Nothing is intended to slight any body. It is felt that reason without emotion is inert. Emotional involvement in a public cause is not unknown to acquire often the wings which had made Lloyd Garrison, who had espoused the anti-slavery cause, say in his paper Liberator:

"I will be as harsh as truth, and as uncompromising as justice. On this subject I do not wish to think, or speak, or write with moderation. No! No! tell a man whose house on fire to give a moderate alarm; tell him to moderately rescue his wife from the bands of a ravisher; tell the mother to gradually extricate her babe from the fire into which he has fallen ---but urge me not to use moderation in a cause like the present. I am earnest –I will not equivocate --I will not excuse ---I will not retreat a single inch ---and I will be heard."

II

The Prelude

In the mid 2000 two Writ Petitions were filed before the Delhi High Court, one

by Azadi Bachao Andolan, and the other, by one Dr. B. L Wadhera, Advocate. These writ petitions had challenged the Circular 789 of 2000 issued by the Central Board of Direct Taxes which created an opaque system under which the authorities under the Income-tax Act, 1961, were bidden not to subject to any inquiry whosoever produced a Certificate of Residence from the authorities of the Mauritius Government. It was also directed that mere production of the certificates were enough to prove that the entities which produced them were the beneficial income. Fiction over fiction was dexterously enacted.This facilitated the misuse of the Indo-Mauritius Double Taxation Convention by the residents of the third States to masquerade as the residents of Mauritius to cause wrongful gains to themselves, and wrongful loss to our Revenue. Besides, the lack of transparency and the opaque system facilitated the loot of our country by the money-launderers, fraudsters, crooks, narco-criminals, corrupt politicians and bureaucrats, and the terrorists of all sorts. The good efforts to investigate such cases by the tax authorities at Mumbai were frustrated by the said Circular widely believed, on good grounds, to have been issued under the benediction of the axis of evil at the high echelons of power, to which once upon a time Justice Shah had referred in his Report on our infamous Emergency. Hence some public-spirited persons challenged that noxious Circular by preferring the said Writ Petitions to protect our country from this chronic and continuing entente cordiale of Collusion and Fraud.

One afternoon, whilst sipping tea underneath a sprawling tree in the Court campus, Dr Wadhera requested me to intervene in the matter to assist the Court. I had no desire to get involved in this strenuous pursuit, so I politely declined. But his request lingered in my mind, stoked off and on by the news paper reports of the massive misuse of the tax treaties

But I intervened, but not as an Intervenor but as a Writ Petitioner. I felt that the limits of an intervention petition would not help me in developing the matter before the Court. Only as a Writ Petitioner under Article 226 I could be comfortable. Besides, I felt that my Writ Petition ought to be framed more comprehensive by raising more fundamental issues.

Why I intervened

I summarized the whys and the wherefores of my odyssey in the court in the Introduction to my book Judicial Role in the Globalised Economy published [3] in 2005 under a sub-heading "Genesis & Context":

"For some personal reasons I visited Mumbai sometime in 2000. I, along with my wife, went to a Shiva temple on the Marine Drive. It was just a chance that there I met some senior officers of the Income-tax Department whom I had known for years. They were apparently distraught, something was wrenching their mind. I had no wish to play God’s spy, yet I asked them the reasons which had led them to that pass. They told me the whole story pertaining to the abuse of the Indo-Mauritius Double Taxation Avoidance Agreement. They discharged their duty under the Income-tax Act 1961, and were quasi-judicial officers. Their orders displeased the corporate imperium who procured support of some powerful politician. Instead of getting a reward for good work they were threatened with punitive actions. I assuaged them that in our country they were not the first to receive displeasure as the wages for good work. But, I felt, I sounded a counterfeit coin in advising them to take things in their stride. But the burden lingered in my mind. It was just a chance that a rickshaw puller told me the story of his sufferings wrought by the fraud and collusion of his friend. I found in it something which ‘brought out a noble knight’ in me.

I seek the reader’s indulgence to read the story of the two rickshaw pullers as the story inspired me to launch a PIL before the Delhi High Court. And without the experience of this PIL I might not have reasons to write this book. I quote what I had written in Personal Journal:

"Two rickshaw pullers came from Bihar and settled down in the J.J Colony (Jhuggi Jhopari Colony) in the outskirts of New Delhi. By greasing the palms of those who mattered they got two small pieces of plots of lands. As they were under obligations to maintain their families they had brought them also. To economize on their resources and to reduce the drudgery of the domestic chores they entered into a gentleman’s agreement that whilst lunch is prepared in the house of one, the dinner be in the house of the other. They were good friends and had no reason to doubt good faith of each other. The arrangement worked for sometime. It could not work for all times as one of the two contracting parties developed greed and wanted to take advantage of what was not due under the agreement. He racked his brains for some scheme. He got one, which with Lucifer’s logic he pursued for his gains. He not only sent his wife and two children to eat in the house of the other but also sent children of some other persons (for consideration, of course) to eat food as the beneficiaries of the agreement. When questioned, he argued that he was competent to adopt as many children he wished. To make his point solid he would invoke custom of his community. As if it was not itself too much, he sent several ladies whom he described as his wives. They all had, in a sense, certificates evidencing relationship, which entitled them to the benefits under the pact. But this state of affairs could not last long .His friend rightly felt enough was enough. His domestic economy had already crashed. The wreck could have been avoided if he would have listened to his wife’s advice to end the gentleman’s agreement at the earliest. The original meeting of minds had lost significance. Fraud was evidently at work. After narrating this story I asked my wife: " Well dear, was it fair and just for the first rickshaw puller to do what he did?" My wife instantly replied: "It was unfair."

I narrated this story to my wife who always obeyed law as she never knew anything about it. I asked her opinion on the propriety of the conduct of the rickshaw puller who swindled his friend. Her verdict appeared to me impeccably right. My wife was not proficient at law otherwise she would have dismissed my story with words: " I don’t believe there’s an atom of meaning in it". I do not want to be apologetic for testing my legal conclusion in the light of the verdict by a housewife. The most celebrated judgment for all times known to me had been pronounced by Gandhari on her son’s prayer made by her son while conducting the Mahabharat War. Gandhari said: "Yato Dharmahstato Jayah (Where dharma is victory is surely there only). This verdict is inscribed on the emblem of the Supreme Court of India. I call the rickshaw puller’s Case under a cause-title A Rickshaw Puller v. A Rickshaw puller . It can constitute a trilogy with the two other widely known cases (Shylock v. Antonio in Shakespeare’s The Merchant of Venice, and Jarndyce v Jarndyce in Charles Dickens’ novel Bleak House ) which do not figure in the law reports. They are often referred but never cited."

This led me to decide to intervene in the matter by filing a very comprehensive Wri Petition before the High Court (CW NO. 5646 of 2000 ) .

III

Chronology of Events

1. A Writ Petition (CW NO. 5646 of 2000 ) was filed before the Hon’ble Delhi High Court in which the Petitioner brought certain matters, revealing remissness on the part of the Central Government and the Central Board of Direct Taxes, to the attention of the Hon’ble High Court to vindicate the rule of law and get the unlawful conduct stopped. The PIL Petition was directed :

‘(A) Against the Circular 789 issued by the Central Board of Direct Taxes which:

(i) promoted "treaty shopping", a harmful tax practice in utter breach of the scope of the Indo-Mauritius Double Taxation Avoidance Convention thereby causing wrongful loss to the Public Revenue of our Country and wrongful gain to the third country interlopers masquerading as the residents of Mauritius :

(ii) was ultravires section 119 of the Income Tax, and Articles 14 & 265 of the Constitution.

(iii) was advancing purpose extrinsic to the Income Tax Act thereby resorting to a mala fide exercise of power as the exercise of power transgresses the permitted province of operation under statute:

(iv) was an assortment of unsound legal propositions stated without legal authority and in utter breach of public policy causing much mischief against public interest :

(B) And against the Central Government on the ground that it acted ultra vires Section 90 of the Income Tax act 1961 and abdicated its public duties under the said Act and the Central Boards of Revenue Act 1963 and in violation of settled principles of Public Policy. ‘

2. The matter was admitted by the Hon’ble Court and was ordered to be listed and Part – II of the Cause List for hearing on January 31, 2001. The High Court (coram: Hon’ble Justice S.B. Sinha, Chief Justice, and Hon’ble Mr. Justice A.K. Sikri ) decided the case per its Judgment dated 31^st May 2002. See the Judgment of the High Court.

[see my article "THE JUDGEMENT: What it means (In the case of Shiva Kant Jha v. Union of India & Ors (C W P NO. 5646 of 2000 delivered by the High Court of Delhi at New Delhi on May 31, 2002 at 4.25 P.M) .]

3. The Union of India filed a Special Leave to Appeal under Art. 136 of the Constitution of India before the Supreme Court under the cause-title UOI &Anr v. Azadi Bachao Andolan& Anr. whereon the Court directed, on Nov, 18, 2002, the Respondents to file their Counter-Affidavits within 3 weeks. A comprehensive Counter-Affidavit was filed within the prescribed time.

4. Co- Appellant emerges from the fog.

Shri Arun Jaitley, Senior Advocate, appeared before the Court praying for leave to allow Global Business Institute Limited Jurist Consult Chambers of Mauritius to become a co-Appellant. The Court granted his Prayer. Shri Jaitley did not turn up in this case thereafter. Shri Harish Salve, Sr. Advocate, who had represented the Union of India before the Delhi High Court in his capacity as the Solicitor-General, appeared regularly for that Mauritius company, and argued vehemently on all the points in the Appellants’ position. I questioned his professional propriety, but all in vain.

5.That per Judgment dated October 7, 2003 the Hon’ble Supreme Court (Coram: Hon’ble Justice Ruma Pal and Hon’ble Justice B.N. Srikrishna, JJ. ) allowed the Civil Appeal Nos 8161-62 of 2003, by their order dated 07/10/2003, arising out of SLP ( C ) Nos. 20192-20193 of 2002, having the effect of setting aside the judgment and order of the Hon’ble Delhi High Court. In the penultimate para of its Judgment the Court ordered:

"In the result, we are of the view that Delhi High Court erred on all counts in quashing the impugned circular. The judgment under appeal is set aside and it is held and declared that Circular No. 789 dated April 13, 2000 ([2000] 243 ITR (St.) 57), is valid and efficacious."

The text of the Judgment of the Supreme Court in Azadi Bachao Andolan & Shiva Kant Jha [(2003) 263 ITR 706].

[also see my article on "What Azadi Bachao says about Treaty Shopping/Round Tripping"]

6. Aggrieved by the decision of the Supreme Court, a Review Petition was filed under Art 137 of the Constitution of India praying that, on consideration of all the 54 Grounds mentioned in the Review Petition, the Court be graciously pleased to "review, recall, and redo the Judgment and Order." A prayer was also made for an oral hearing. But the Court dismissed the Review Petition by circulation in the Chamber(Coram: Hon’ble Justice Ruma Pal and Hon’ble Justice B.N. Srikrishna, JJ. ) on January 29, 2004, and refused to grant a hearing in the open court.

7.The Petitioner presented before the Court a Curative Petition, invoking this Hon’ble Court’s jurisdiction under Articles 137, and 142 of the Constitution of India, and its inherent powers, to reconsider, under the aspects of law and justice, the Judgment, dated October 7, 2003, of the Division Bench of the Court. The Curative Petition was rejected.

8. The Writ Petition (c) NO.334 of 2005 had been directed against the said decision of the Division Bench of this Hon’ble Court [Coram: Justice Ruma Pal and B. N. Srikrishna] in Azadi Bachao Andolan [(2003) 263 ITR 706] reversing the Hon’ble Delhi High Court’s decision (Coram: Justice S.B. Sinha, Chief Justice; and Justice A.K. Sikri] in Shiva Kant Jha [(2002) 256 ITR 536].

9. That the issue which came up on Nov. 27, 2007, was limited to the count, and made specific to the context emerging from this Hon’ble Court’s order dated 25/08/2006 [coram: Hon'ble the Chief Justice Y.K. Sabharwal; Hon'ble Mr. Justice C.K. Thakker; Hon'ble Mr. Justice R.V. Raveendran]. The Court felt that in "…. view of the law laid down by the Constitution Bench of this Court in Rupa Ashok Hurra vs. Ashok Hurra & Anr. (2002 (4) S.C.C.388, the petition under Article 32 of the Constitution of India is not maintainable." But the Court appointed Mr. Gopal Subramanian, learned Additional Solicitor General, and Mr. Soli J. Sorabjee, learned senior advocate, to assist the Court on the point in issue from a prima facie perspective at this stage." 10. The aforementioned issue was considered by the Court on Nov. 27 and 28 of 2007. Shri Gopal Subramanian, learned Additional Solicitor General, addressed the Court. Shri Sorabji was not present. Per Judgment/order dated Nov. 28, 2007, the Court (Coram: coram Hon’ble Chief Justice, Hon’ble Mr. Justice R.V. Raveendran, and Hon’ble Mr. Justice J.M. Panchal) was pleased to dispose of the Writ Petition (c) 334 of 2005 by dismissing it for reasons set forth in its Judgment.

11. As on a careful reading of the Order dated Nov. 28, 2007 passed by the Division Bench of Three Hon’ble Judges, the Petitioner was driven to a view that serious and manifest errors had crept in the said order of the Court causing a grave miscarriage of justice in disposing of this PIL of greatest constitutional importance. Hence, he moved, on Jan. 3, 2008, a Review Petition against the Court’s said order of Nov. 28, 2007 on Jan. 3, 2008.

IV

ACT I : Scene I [before the Delhi High Court]

A Writ Petition was filed by Shiva kant Jha before the Delhi High Court with Prayers

that the High Court be graciously pleased to :

‘(a) issue such appropriate direction /order /writ as the Court deem proper, under the circumstances brought to the knowledge of the Hon’ble Court, to the Central Government to initiate a process whereby the terms of the Indo-Mauritius Double Taxation Avoidance Agreement are revised, modified, or terminated and \or effective steps taken by the High Contracting Parties so that the NRIs and FIIs and such other interlopers do not maraud the resources of the State;

(b) declare and delimit the powers of the Central Government under section 90 of the Income tax Act, 1961 in the matter of entering into an agreement with the Government of any country outside India;

(c) declare and delimit the powers of the Central Board of Direct Taxes in the matter of the issuance of instructions through circulars to the statutory authorities under the Income tax Act, specially through such circulars which are beneficial to certain individual taxpayers but injurious to Public Interest;

(d) declare the illegality of Circular No. 789 of April 13,2000 issued by the Central Board of Direct Taxes and to quash it as a matter of consequence ;

(e) issue mandamus so that the respondents discharge their statutory duties of conducting investigation and collection of tax as per law ;

(f) issue appropriate direction / order or writ of the nature of mandamus, as the Court deem fit, so that all remedial actions to undo the effects of the acts done to the prejudice of Revenue in pursuance of Circular No. 789 are taken by the authorities under the Income tax Act, 1961. ‘

The matter came up for hearing on January, 31, 2001 but on that date the item did not reach the point to be called for hearing. It happened so again on February 1, and on February 2, and yet again on February 5, 2001. The matter was heard over several days, but the final hearing was done on 5-3-2002, when the matter was heard by the Bench of Hon’ble Chief Justice S.B. Sinha and Justice A.K. Sikri. The Judgment was delivered on 31^st May 2002 under the cause-title Shri Shiva Kant Jha v. Union of India & Ors [(2002) 256 ITR 536]. In the final operative para of its Judgment the High Court observed:

"For the reasons aforementioned this writ petition is allowed and the impugned circular is quashed. Consequently if the assessing authorities intend to reopen any proceedings they would be entitle to take recourse to such proceedings as are open to them in law. The petitioners are also entitled to costs which is assessed at Rs. 10,000/="

This Judgment was followed in CWP.2802/2000, as in this Writ Petition too the Petitioner had questioned the validity of the CBDT Circular No. 789 of April 13, 2000. Both the Writ Petitions were heard together. As the former Writ Petition was more comprehensive, the High Court passed its Judgment on that Writ Petition. The High Court followed this decision whilst disposing of the other Writ Petition under the cause title UOI vs Azadi Bachao Andolan [(2003) 263 ITR 706]. Shiva Kant Jha wrote, immediately after the Judgment of the High Court, an article explaining what was held by the Court. This article was entitled as "The Judgment: What it means (In the case of Shiva Kant Jha v. Union of India & Ors) wherein he examined, in brief, what the High Court had decided.

The Union of India was represented by Mr. Harish Salve, the Solicitor General of India with Mr. Sanjiv Khanna (now Hon’ble Judge of the Delhi High Court); whilst Azadi Bachao Andolan was represented by Mr. Prashant Bhushan with Mr.Narendera Verma and Mr.Vishal Gupta, Advocates. Shiva Kant Jha argued his case himself with the help of his daughter Mrs. Anju Jha Choudhary, Advocate.

On March 4, 2002, Sri H. Salve, the then Solicitor General of India, made certain points which deserve some attention as they articulate the position of the Government of India on certain points of great public importance in our Democratic Republic. Such points included the following:

1. that the treaties express political arrangements made by the contracting States, and bear the facets of International diplomacy.

2. that the Government of India might have considered the huge number of Indian population in Mauritius and might have taken into account the future support of that country in the event of India staking its claim for a permanent seat in the Security Council of the UN.

3. that the treaties are framed under wide powers. Sections 90 of the IT Act which effectuates the wide Constitutional powers of entering into treaties. Treaties are a mode of sharing of power.

4. that as the Indian citizens are at liberty to have their commercial under takings for earning income in the backward areas of Madhya Pradesh or UP or anywhere else in the country where they can derive more advantages, in the same way, persons from other countries can operate from Mauritius through their subsidiaries for taking advantage of Indo-Mauritius DTAC.

5. that as the grant of citizenship a persons in India cannot be questioned by someone in Mauritius so the grant of Certificate of Incorporation in Mauritius cannot be questioned in India.

6. that the Finance Minister of Mauritius had in the course of his correspondence protested the action of the Indian Income tax Authorities questioning the authenticity of the residence of these companies in Mauritius.

7. that it is on account of the treaty of the type of Indo-Mauritius DTAC that our foreign reserve has crossed $ 50 billions.

The High Court rejected all the above pleas in words clear and cogent. Some extracts from the Judgment would make this point clear:

(i) "By reason of the circular a power is conferred to lay down a law which is not contemplated under the Act or for the purpose of political expediency. The same cannot be ultra vires. What prompted the Govt. of India and the Govt. of Mauritius in the said treaty is not known. Submission of the Solicitor General that this treaty must have been entered into looking to the large population of Indians in the said country and also for future support of the said country might have been taken into consideration. Any other purpose would not only be ultra vires the same would be contrary to the purpose circular had been issued bonafide, the question which has to be posed and answered by the court is as to whether the same is consonance with the provisions of Section 90 of the Income-tax Act or is in public interest. The validity of the impugned circular must be judged having regard to the limitations contained in Section 90 of the Act and not otherwise. It would not be correct to contend that section 90 of the Income tax Act confers a very wide power in terms whereof conferment of an unguided or unbridled power is not contemplated. The very purpose of entering into such a treaty is avoidance of double taxation…… The bilateral treaty can be entered into by two independent governments but bilateral treaties for political expediency and bilateral treaty in terms of a statute stand on different footing. A treaty which is entered into in terms of Article 73 of the Constitution of India the political expediency may have a role to play but not when the same is done under a statutory provisions. Powers, functions and duties of the adjudicating authority cannot be taken away under a treaty for loss by a circular. By reason of an international treaty, a Government, les than CBDT can be allowed to lay down a procedure or evidentiary value of a document which would be dehors the provisions of Indian Income-tax Act. A statutory authority, it is well known must act within the four corners of the stature. It must follows the procedure laid down therein and all other action are necessarily forbidden."

(ii) "So far as submission of the learned Solicitor General to the effect that Mauritius route may be taken recourse to for gaining benefit as is done by the industrialist setting up industries in M.P or some other place in the country where tax benefit are given re concerned, the same is stated to be rejected. Economic activities in different states by grant of exemption to the industries are done in terms of the provisions of the statures. Such exemptions are g ranted in furtherance of the legislative policy so as not only to put the local resources including human resources to optimum use but also for development of the country. Such benefits and exemptions are granted by way of payment of sales tax and electricity subsidy etc but the same principle cannot be said to be applicable for the purpose of double taxation avoidance scheme. In any event, taking undue advantage of a scheme only for the purpose of avoidance of tax cannot but be deprecated. Treaty shopping which amounts to abuse of the Indo Mauritius Bilateral treaty, may amount to fraudulent practice and cannot be encouraged."

(iii) " The suggestion to the effect that in such cases the attention of the Central Govt. can be drawn and the matter can be taken up at the government level is not contemplated in the statute. No law encourages opaque system to prevail.

The core issue is as to what should be done when on investigation it is found that the assessee is a resident of a third country having only paper existence in Mauritius without any economic impact with a view to take advantage of the double taxation avoidance scheme. No attempt has been made to answer the question on behalf of the Central Govt. inasmuch as it merely stated in the counter that power of the assessing authority under section 4(3) of the treaty has not been taken away By reason of the impugned circular even such a power has been taken away inasmuch as a certificate of residence has been made conclusive. In any event, having regard to the facts and circumstances of the case, only by production of a residential certificate, a assessee cannot be held to be entitled to take benefit of the treaty although it neither pays income tax in India nor in Mauritius. Such an action would be ultra vires the Income tax Act.

I was aghast at some of the contentions on behalf of the Union of India. I was wondering how could

(a) the Government of India not see the difference inter se the concessions granted to the residents of our own country and the residents of the foreign lands. The economic activities in different States of the Union generate resources for the nation. The resources, which come to the Consolidated Fund of India, are under trust for the benefit of our people to deployed as our Parliament thinks fit and proper. What is illegitimately looted by the treaty shoppers, masquerading as the Mauritian Residents for the benefit of the persons of the countries not parties to the treaties, can never be for a benefit of our country. At best the foreign operators are our fair weather friends sure to ditch us in moments of crisis, be it war or aggression, be it an economic melt-down or socio-political unrest. The argument advanced was surely grossly detrimental to the public interest, and would be contrary to law and public policies of the Republic of India.

(b) the Union of India think of relying on a factor so grossly extraneous to the Law of Income-tax. Section 90 is not for amassing foreign reserve. It is a debatable proposition whether the fast waxing reserve made up substantially with "hot money" flows of the portfolio investors motivated only by their financial returns on their investments through Capital gains and dividends, can be really good for a stable economic management. How could the evident and widely known money-laundering and the criminal layerings of wealth through the tax havens be justified when its effect was tainting our polity itself.

Some of such contentions provoked me even to comment in the Court: "In effect I am represented the Revenue of this country. God alone knows whom the gentlemen on the other side was representing !" My comment elicited smile on most faces, though some turned sullen and glum, perhaps at my indiscrition.

The High Court appreciated the help that I had rendered to the Court in words more valuable than any distinction which could have been ever conferred on me. The High Court observed: per S.B. Sinha, C.J:

"We would however like to make an observation that the Central Govt. will be well advised to consider the question raised by Shri Shiva Kant Jha who has done a noble job in bring into focus as to how the Govt. of India had been losing crores and crores of rupees by allowing opaque system to operate."

I felt the High Court should have better said "….hundreds of crores…".

I was thinking that some day our Government would ask me to disclose such facts for taking remedial actions in the interest of our nation. But this was never to happen. The persons who mattered were surely conscious of the skeleton in the cupboard. Rather our Government enjoyed sailing in the same boat with the representative of the looters against whom I had blown whistle. But this is the tragedy of our country. Some day we shall have to find ways to deal with such things. Whilst our agenda is certain, our time-table for action is uncertain.

The Court had granted cost of Rs 10000. I told Dr Banwari Lal Sharma, the Chairman of Azadi Bachao Andolan, that when we get the cost we must donate the whole amount to the President of India for some charitable cause. But it did not happen that way as our Government appealed to the Supreme Court under Article 136 of the Constitution of India.

ACT II

[Before the Supreme Court]

(a) Scene I: The SLP

I never thought any government worth its salt, and mindful of the nation’s interest would ever even think of questioning the decision of the High Court which I had analyzed in my article. I felt only pervert masochistic adventurism could warrant such a course. But I was mistaken. I had forgotten that our country is now being ruled by a Sponsored Government for which transparency means structure of deception. It did not take long for the cat to come out of the bag.

The Union of India filed Special a Special Leave Petition under Art 136 of the Constitution of India against the Judgment of the under cause-title UOI &Anr v. Azadi Bachao Andolan & Anr. What I had apprehended through a dense fog, was ceasing to remain an inscrutable silhouette. Many things took place in revealing synergy to rip off many of illusions. I did often feel that often I stood on treacherous quicksand. I could get some counseling in the words of Freud [4] :

"There is something to be said, however, in criticism of his disappointment. Strictly speaking it is not justified, for it consists in the destruction of an illusion. We welcome illusions because they spare us un-pleasurable feelings, and enable us to enjoy satisfaction instead. We must not complain, then, if now and again they come into collusion with some portion of reality, and are shattered against it".

In the Petition for Special Leave the Government had not come before the Court with clean hands, and there were reasons showing attempts to overreach the Court by misstating facts and by circling out this Respondent’s whole case in order to shut out the core issues and seminal facts from the gaze of the Court. Neither the filing of this Respondent’s Writ Petition was mentioned in the "Synopsis and List of Events" filed with the SLP, nor was a copy of the Respondent’s Writ Petition enclosed with the SLP (though the Appellants had chosen to include as Annexure the Writ Petition and pleadings filed in CWP NO 2802 of 2000 but excluding the copy of the Assessment Order under Section 143(3) of the Income-tax Act passed in a case of a treaty-shopper M/s Cox & Kings Overseas Funds (Mauritius) Ltd.).This prime issue was not the subject-matter of the Writ Petition No. 2802 of 2000 ( Azadi Bachao Andolan); whereas it was specifically stated in this Respondent’s Writ Petition supported and developed in course of proceedings before the High Court by filing written submissions supported by decisions and documents filed in 4 volumes of Paper-Book. I stated in the Counter Affidavit:

"The Petitioners have designed this SLP to shut this Respondent’s case out of the Hon’ble Court’s view, which amounts to an unfair practice of clogging the dice. This resort to the technique of selective manoeuvring is improper. That the improprieties in the SLP filed is an outcome of a studied strategy, as the Solicitor-General who settled the SLP knew this Respondent’s case well as would be evident from my reply to his arguments before the Delhi High Court…..The "core issue" was raised and answered in this Respondent’s Writ Petition. As this core issue could not have been answered without destroying the whole case of the present Petitioners, they refused to face it, and completely evaded it ……….." [5] .

It was further pointed out that the SLP suffered from an evident impropriety as the cause-title had been improperly structured with an evident purpose to overreaching the Court. A reference was made to Shri B. R. Agarwala’s book Supreme Court Practice and Procedure at p.301 in which he stated:"Cause Title of the judgment impugned and as given in special leave petition must tally." In itself, what the Government did might look of no importance, but it indicated how much unfair even they could be whom we are accustomed to trust. The effort might not have brought any dividend to them, but it did reveal the state of mind. .

On Nov. 27, 2002 I got a letter from the Assistant Registrar, Supreme Court , informing me that the M/S Global Business Institute Ltd [6] had filed a Petition for Special Leave Petition for Interim Relief and Application for permission to file SLP [SLP NO 22522 Of 2002 ]. The Court, accepted the prayer, and, on Nov. 18, 2002, issued of notice. When I questioned its locus standi to become a co-Appellant by emerging out of the blue only before the Supreme Court. The so-called Mauritius company had the audacity to question my locus standi itself in words which deserve to be quoted:

"The Petitioner further states that it is vitally affected and prejudiced by the impugned judgment, as it represents investors, businesses, assets managers, management companies, lawyers, accountants and other service providers situated in various countries who are its members, and who are concerned and vitally affected by the impugned judgment. The application to file a SLP in this regard has been moved and it is members who it represents were not impleaded as parties to the proceedings before the Hon’ble Delhi High Court and were not heard . On the contrary the Petitioner submits that the writ petitions filed before the Hon’ble High Court ought to have been dismissed for non-joinder of necessary parties. The Petitioner humbly submits that it does have the locus in the present case.. Further , the Petitioner submits that the Respondent No 3 did not have any locus to file a writ petition agitating matters of economic policy. Further , the Petitioner submits that the Respondent No 3 did not have any locus to file a writ petition agitating matters of economic policy".

I submitted in reply to it that the position of the Mauritian company was untenable, as our grievance was against the administrative lawlessness of our own Government; hence there was no question for making it a necessary party. I stated:

"If certain executive acts are found contrary to law , the consequences of such determination would overtake those who enjoyed the undeserved benefits of the governmental acts contrary to law. If a tree is to be uprooted in obedience to law, none should think mournfully about the black ants or red ants which flourished on the tree so long it stood erect before law ceased to be a rogue’s charter. It is felt that the private beneficiaries of public wrong could not be the necessary parties. Mulla in his CPC 14^th ed at p 868 writes:

‘Necessary parties are parties "who ought to have been joined", that is, parties necessary to the constitution of the suit without whom no decree at all can be passed"In order that a party may be considered a necessary party defendant, two conditions must be satisfied, first, that there must be a right to some relief against him in respect of the matter involved in the suit, and second, that his presence should be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit." Failure to implead a necessary party as a party to the proceeding is fatal.

"…. This principle has been applied to writ petitions also."

In PIL of this type the focus is on the administrative remissness to "vindicate the rule of law and to get the unlawful conduct stopped." [ as Lord Diplock observed in Inland Revenue Comrs v National Federation of Self- Employed and Small Businesses Ltd.(1981) 2 ALL ER 93 at 107 (H L)]. It was pointed out, besides, that strange and noxious things were happening in the world. The Court was invited to take note of the operative realities in this phase of Economic Globalization. What the 2002 Britannica Book of the Year ( p. 392 ) says about The Bahamas, a country (Area 5382 sq.mil.) having Population only (2001) 298000 might not be untrue about Mauritius :

"The Bahamian government moved smartly against dubious offshore banks in Feb.2001;it closed down two operations and revoked the licenses of five others following the publication of a U.S. Senate report that described them as conduits for money laundering. In June The Bahamas was removed from the Paris-based Financial Action Task Force list of countries with inadequate laws to fight money laundering. The government had launched several initiatives, including the banning of anonymous ownership of more than 100,000 international business companies registered in the country."

But I could not persuade the Court. It granted the prayer made by Shri Arun Jaitley, Sr Advocate appearing on behalf of the Mauritius company. [7]

In some context, the Court observed (per Chief Justice Y.K. Sabharwal) that the points relating to the ambit and reach of the circular framing power of the Central Boar of Direct Taxes under the Income-tax had already been referred to a Constitution Bench whose decision thereon would govern that issue raised in the Writ Petition. I felt that the observation was fair. I was told that that reference to the Constitution Bench had been made in Commissioner of Central Excise, Bolpur v. M/S.Ratan Melting & Wire Industries [Civil Appeal No. 4022 of 1999]. I thought it prudent to move an Intervention Petition in Ratan’s case on 28. 10. 2005. It was numbered as IA.No.3, and came up for hearing before Hon’ble Mr. Justice K.G. Balakrishnan (in Chambers) on 01/08/2006 The Court ordered "Post along with the main matter." The matter is pending. [It is worth mentioning that under this reference the correctness of Azadi Bachao Andolan & Shiva Kant Jha is clearly under question. If the Supreme Court decides in favour of the Appellant, the decision of Azadi Bachao Andolan& Shiva Kant Jha would stand overruled, expressly or impliedly. It is also worth noting, that order of this Court passed on Nov. 28, 2007 in W.P.(C) 334 of 2005, disapproved this Petitioner’s questioning the correctness of Shiva Kant Jha in the situation inter partes. It is felt that as the Intervenor in Ratan is not in the ‘inter partes situation’ he can assert the point, that Azadi Bachao Andolan & Shiva Kant Jha deserved to be overruled. If successful, it will destroy its precedent-value. Let us see when the Constitution Bench to hear this reference is constituted.] I may mention that the Intervention Petition would show that now the Supreme Court itself doubts the correctness of

(iii) The law officers

I have already mentioned that the SLP before the Supreme Court was filed by the Union of India in which a Mauritian company became a co-appellant. The leave for appeal on behalf of the Mauritian company was sought by Shri Arun Jaitley. He had the distinction of being for some time a Minister of State, and was appointed in November, 2000 as a Cabinet Minister with the charge of Law, Justice and Company Affairs. He was the General Secretary of the BJP for some time, then was elevated to the Union Cabinet as the Minister of Commerce & Industry and Law & Justice on 29 January, 2003. After that fruitful appearance when the leave was granted to the Mauritian silehoutee, said to be a company incorporated in Mauritius, this co-Appellant case was entrusted to the eminent Shri Harish Salve, who had argued the Government’s case in the matter before the High Court as India’s Solicitor-General. The Union of India’s case was argued by Shri Sorabji, the then the Attorney-General. Both these learned men, who had once argued the case of McDowell & Co. against the Union of India, but had lost before the Constitution Bench, argued now that McDowell had been wrongly decided. So great was their persuasion that this bastion in favour of the Revenue got battered and bruised, and the Bench inflicted on it the indecorous vituperatives: "a hiccup" and "temporary turbulence". The Government enjoyed the discomfiture of this great decision which had stood it in good stead for decades. I was wondering: why this stead-fast adherence to death-wish; what was the tragic trait for which the Furies of this Economic Globalization were driving our Government it to this perdition. Whilst McDowell was often support to crack the shell of deception that the looters of Revenue crated, became, through its fall, a burden of song of those who cock a snook against the Revenue. I wrote to the Finance Minister (Shri Jaswant Singh) to appreciate the self-inflicted wounds, but none even acknowledged that.

Mr. Sorabji, and the counsel for the tax haven company, Mr. Salve, pleaded that the abuse of Treaty-shopping was "perhaps, it may have been intended at the time when Indo-Mauritius DTAC was entered into." [263 ITR 706 at p. 753]. To ‘intend’ is ‘to plan or have in mind as one’s purpose or aim.’(Chambers 21^st Century Dictionary). This plea had absolutely no basis. The acceptance of this plea on "no material" destroyed the Petitioner’s case against the Treaty Shopping. It caused a serious miscarriage of justice. In Dhirajlal Girdharilal v. CIT [8] , CIT v. Daulatram Rawatmull [9] , Dhakeswari Cotton Mills Ltd v. CIT [10] , Omar Salay Mohammed v CIT [11] ; and Lalchand Bhagat Ambica Ram v. CIT [12] , the Supreme Court set aside the assessment on the ground that it is based on bare suspicion, conjectures and surmises and further held in the first two cases that a finding of fact would be vitiated if it is based partly on conjectures or on material which were partly inadmissible or irrelevant, even though there may be some other relevant and admissible material to support the finding." [13] I was aghast how could, on mere surmise, the Attorney-General chose to inflict that slur on Mrs Indira Gandhi and Mr Pranab Mukherjee as they had gone to Mauritius in 1982 when the Indo-Mauritius DTAC was under negotiation. Adverting to this morbid point, this Petitioner stated in his Writ Petition (CW 334/2005):

"This Petitioner had stated that this assertion was false as there was nothing, there could be nothing, to prove it, or even to suggest on the principle of probability. Mr. Salve had been paid for to plead whatever could advance his client’s case, fact or fiction. But it was shocking to find the Attn.-General doing that. The unstated but dexterously suggested idea was to free the BJP government (and its then F.M Mr. Yashwant Sinha ) from the remissness in promoting Treaty Shopping, and to put the blame on the Congress as the Indo-Mauritius DTAC had been signed when Mrs. Gandhi had visited Mauritius 1982 along with Mr. Pranab Mukherji, the then F.M in 1982. It was unbecoming of both the counsels to suggest this , even in pregnant aside. The Court was not the appropriate forum for playing politics. They brought out no travaux preperatoires (preparatory work). They brought nothing to suggest even remotely to prove this sinister suggestion. A DTAC founded on the mutuality principle is never, nowhere, used for the benefits of the treaty-shoppers. This Petitioner quickly responded that the Att-Gen should not have suggested such a baseless idea which is playing politics in course of the solemn judicial proceeding. This Petitioner had investigated how the Indo-Mauritius DTAC was entered into. This Petitioner submits that Hon’ble Court committed a mistake of fact by stating that the abuse of Treaty Shopping, "perhaps, it may have been intended at the time when Indo-Mauritius DTAC was entered into." This conclusion is based on no material: hence this conclusion of facts should be expunged from the Judgment so that this undeserved insinuation does not sully the reputation of Mrs. Gandhi who, when all is said, was a great patriot, perish the thought, perhaps the last patriot." [emphasis now supplied].

It was painful to see how throughout the judicial proceedings the Law Officers sailed in the same boat with a tax haven company. Its awkwardness reached a high point when they vehemently argued against the Constitution Bench decision of our Supreme Court in McDowell that our Government had won despite the pleadings by the same gentlemen before the Constitution Bench which decided the Case of McDowell & Co!. This was not unnatural for Mr Sorabji who could say in one of his published articles [14] with evident barbs:

"Thank God there is no patriotic duty to pay taxes which can be legitimately avoided unless, like the great Justice Holmes, one enjoys paying taxes, sharing his anachronistic belief that it is the price for the purchase of civilisation. Tax practitioners and consultants would face serious problems if Justice Holmes is taken seriously."

This phase, wherein Pax Mercatus has subjugated the political realm, it is not unnatural to ridicule the views of Justice Holmes, who said that taxes "are what we pay for civilized society", and of Sir Leo Money, who said, "I like to pay taxes. With them I buy civilization." This brought to mind what H.H. Monoroe said in 1981 Hamlyn Lectures

"If social attitudes to evasion are tolerant, judicial attitudes to avoidance are ambiguous. Inevitably one judge will emphasize the citizen’s right to arrange his affairs within permitted legal limits to avoid the incidence of tax."

If our Government could know: if our Government could do.

The Appellants were represented by the most celebrated counsels, each assisted by a battery of assistants, well fed and well paid. But the Mauritius company had left no stone unturned in making its representation the finest that could be terrestrially possible. Mr Salve, a Senior Advocate and a former Solicitor General, had his finest hours. But more interesting was the verve of the Knights of his Round Table. Those who assisted him included Mr P.H. Parekh, Adv. for M/s. P.H. Parekh & Co. and the galaxy of other legal stars which included the stalwarts from Nishith Desai Associates of Mumbai. On most days I saw some officers from the Income-tax Department (some of them my old friends), but their only role was merely of pathetic onlookers from the margin.

Whilst reading Aeschylus’ The Oresteia, Hermann Hesse’s novels and Ibsen’s plays one is constantly under impression that something inscrutible and incomprehensive guide the course of irrestible events with over-powering force. I often had this very feeling in the course of the litigous process of this PIL. My mind goes back a quarter of a century back when I was a Senior Departmental Representative before the Income-tax Appellate Tribunal at Calcutta. In course of arguments, in some case, the gentleman representing that case asserted vaingloriously, "Your honour, I would get a circular issued by the Central Board of Direct Taxes in favour of my client. And in view of the Supreme Court decisions, that would be binding on the Assessing Officers." I had felt nauseated by the swinish assertion. I do not know whether he succeded in his pursuit or not. But the course of events in this PIL showed that such things were not beyond probabibility.

I would just dwell in brief on what I saw happening before my own eyes. When the Writs were filed before the Delhi High Court a circular was issued to suggest that the questioned Circular had not stopped investigation into cases of the assessees with operations from India. In fact, it was not the point at issue. It was considered irrelevant by the High Court. Whilst the matter was before the Supreme two circulars were issued to repair the case of the Appellants. They were being issued in quick succession illustrating an adroit strategy not uncommon when we are getting trapped in the waxing syndrome of a Sponsored State, about which I have written in detail in the first chapter of my book The Judicial Role in the Globalised Economy ( Wadhwa 2005). The climax came when the Finance Act 2003 came to their rescue. The Finance Act 2003 substituted the following clause (a) for the existing clause (a) in sub-Section (1) of Section 90:

"(a) for the granting of relief in respect of---

(i) income on which have been paid both income-tax under this Act and income-tax in that country; or

(ii) income-tax chargeable under this Act and under the corresponding law in force in that country to promote mutual economic relations, trade and investment, or……"

It also inserted sub-Section (3) which ran thus:

" Any term used but not defined in this Act or in the agreement referred in sub-section 90 (1) shall, unless the context otherwise requires, and is not inconsistent with the provisos of this Act or agreement, have the same meaning as assigned to it in the notification issued by the Central Government in the Official Gazette.

That the immediate contexts of these statutory changes were also to be taken note of. The Petitioner, in course of his argument on February 5, 6, 11, and 13, 2003 before the Division Bench of the Supreme Court, drew the attention of the Court to the Indo-Mauritius Convention for Avoidance of Double Taxation, and pleaded that it was ultra vires as the Section 90 (1) of the Income-tax Act did not authorize the Central Government to enter into an Agreement for the purposes of trade and investment The Preamble to the Indo-Mauritius DTAC provided:

"The Government of the Republic of India and the Government of Mauritius, desiring to conclude a Convention for avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains and for the encouragement of mutual trade and investment have agreed as follows…..".

The Union of India and its tax haven co-Appellant felt that their stand was untenable. They availed of the earliest possible opportunity to get the statutory provisions amended. The Finance Bill 2003 was made to contain the provisions already referred. The Petitioner had reasons to believe that the substitution and insertion of new clause in section 90(1) are not in pursuance to any report or suggestion by any expert committee or study group, but are mere knee-jerk reaction to this Petitioner’s pleadings before the Division Bench of the Supreme Court.

My days were well spent.

In the concluding paragraph of his famous book The Rise and Fall of the Great Powers, Paul Kennedy writes: "To paraphrase Bismarck’s famous remark, all these powers are traveling on ‘the stream of Time’, which they can neither create nor direct’. but upon which they can ‘steer with more or less skill and experience’." [15] That abiding fount of delight, which sustained me over 7 years, I got in the immortal words of Lord Shri Krishna. What one is bidden to do by his conscience or circumstances, one must do as his duty. One’s right is only to one’s duty: karmany eva ‘dhikaras te, ma phalesu kadacana (The Gita II. 47)

For almost two years I had very enjoyable time at the Delhi High Court. The lawyers I met there in the campus were not much different from those who had been portrayed by Chaucer in his The Canterbury Tales, written in the 14^th century. The variety in the specimens of the homo sapiens as we see in the Canterbury Tales couldn’t be found in that medley of homo juridicus fast becoming in the recent time homo economicus. Though there were some who in their flamboyance recalled the Wife of Bath, most of them displayed the same deception to which Chaucer refers while portraying his Man of Law. After all he was himself a lawyer of some repute.

Nowher so bisy a man as he ther nas;
And yit he seemed bisier than he was. (ll. 323-324)

I had enough time to analyse with discrimination what differentiated this learned profession from the celebrated ancient profession whose members are now becoming the service providers under the umbrella of the Agreement on Trade and Services under the WTO regime!

At the Supreme Court I had many more opportunities to enjoy my intellectual feats which in vacant moments my mind conjured up, though most often I was lonely in the crowd of the learned brothers. As on most days I had hardly anything to do except loiter around, certain things, so obvious but not always known, caught my attention. Once, whilst a mere log under the Sun, I read the emblem of our Supreme Court, and reflected over it. Many things kept me delightfully pre-occupied over the years of drudgery from which I brought nothing for my wife to appreciate me, but over which I spent time and money against all, of course, without terrestrial prudence. I incurred no expenditure on the PIL except on Xeroxing. But over the whole process of getting about 50000 pages Xeroxed, I might have spent about Rs 50000.

Now I must interject something personal, obviously out of tune with the general tenor of this Introductory Note. Without my wife’s support I couldn’t have done what I did in the December of life, when the better pursuit would have been to bank on the laurels of the past and the present pension. These days we hear most daughter-in-laws think it wise to learn from the films, advertisements. media, and pubs, but seldom anything from their mother-in-laws. My wife was an exception. The dedication with which my mother had inspired my father to get involved the whirls of the revolutionary activities was always appreciated by her. And she too shared something of hers in pursuing public cause. I valued her views. How could I forget that I always considered that the profoundest Judgments ever delivered in the world were not by the professional Judges, but by ordinary housewives: one by Gandhari who said "Yato Dharmahstato Jayah (Where dharma is victory is surely there only), and the other by Bidula, who after having said:

"Abject poverty is worse than the woes of having known that one’s husband or son is slain,

Poverty is virtually a synonym of Death itself."

told her son the immortal verdict pashyame kuru paurusham (now I would witness the valour of your human-specific great creativity) [ The Mahabharat Udyogapurva Chap. 135.32].

I have already referred to her Judgment on the issue for which I have been seeking a judicial answer. You can read something about these if you have moments to waste on someone who was fortunate to have no greatness cast on him.

I was delighted to see Gandhi’s bust on a pedestal in the campus facing the Chief Justice’s Court. I felt that even his stony presence is great. I felt that Gandhi’s talisman must be at work somewhere. But it was beyond me to comprehend why the Father of the Nation was so much down-cast and morose. While it is not unlikely in these locust-eaten years for most fathers to be sad on seeing the deeds of their progeny, Gandhi’s drooping face indicated some deeper pang, some iron in his soul. I could not find out the reasons. Is he so morose because he has really noticed that the talisman he had given to the decision-makers of the free India is now quoted at the lowest price on the Stock Exchange! I could have asked Freda Brilliant Marshall who sculpted the bust of Gandhi, or Dr. L. M. Singhvi, Senior Advocate, who had presented the bust to the Supreme Court. I hope persons abler than me would make that discovery.

The architecture of our Supreme Court was designed on an epic scale in tune with the importance and dignity of the Court and the Judiciary under our great Constitution. Its massive tall colonnade, with well wrought ornate capital, supporting the majestic dome suggested how these columns of strength, soaring up from the earth, spoke to all that whilst this institution was bidden to uphold the Constitution, it itself was protected and upheld, in the end, by us,( the worms of the earth, who can even turn). Its massive rounded columns united the best features of the Corinthian and the Doric style. Its entablature, with its classical simplicity, and its frieze with elgant imagey, kept mind preoccuied for hours while I basked under the Sun in Delhi’s cruel winter. What drew mind most was the aura, and the moral tone exuded by the architecture, which often gets diluted in the legalese or the govertmentese of the borrowed western jurisprudence. Two most important founts of such inspiration in continuum are the emblem of the Court with Gandhari’s words inscribed, and the other, the Father of the Nation observing round the clock how the progeny of the Freedom Fighters manage the affairs of the State. No such moral note was struck by Architect Cass Gilbert (and later Cass Gilbert, Jr., and John R. Rockart) who was charged by Chief Justice Taft and Chief Justice Hughes to design the building of the Supreme Court of the United States. But we know that the meaning of art or poetry depends much on the mind and mission of those who want to explore that. What disturbed me much was the pursuit of the men of law to prove by their points only by seeming logic. Have we forgotten that in John Milton’s Paradise Lost and Paradise Regained, it is Satan who is the greatest logician before whom even God fumbles. Our Supreme Court commenced its journey from the Chamber of Princes, a part of Parliament House, where Federal Court used to sit from 1937 to 1950, I wish it finds its mission in this world of paupers.

I would be charged guilty if I do not appreciate how the Library I of the Supreme Court kept me often absorbed, often rapt, often bemused, often surprised, often stimulated to be on wings of thoughts about kings and cabbage. My colleagues had tales more interesting than the tales in Chaucer’s book. They broke the wings of butterflies on the Catherine wheel of logic with a finesse at which even the dull witted would marvel at. They expressed enormously valuable ideas on our polity, but their exercise was almost always no more than casting pearls….. fruitlessly. The days, when the lawyers provided leadership to the society, had gone with the wind. But it was very interesting to watch how they guillotined many judicial acts illustrating judicial incompetence and hubris of no mean order. I felt that they could have done something good if they would have written them for the benefit of the idlers. These observations by this fly on the wall need not be taken seriously or misunderstood.

Yato Dharmahstato Jayah

Never in human history a statement as profound and fundamental was ever made than what was made by the wife of King Dhritarastra undergoing the worst conceivable crisis. As these words occur on the emblem of the Supreme Court it commands some concentration on the words, and its context. I wonder at the wisdom of him who chose this expression for being inscribed on our Supreme Court’s emblem [ as the Indian jurists, like the camels when freed from restraints, are accustomed to run to the west (towards desert)] alone.

The devastating war ever known in history, the Mahabharat War, was over. The Padavas, with their supreme mentor Krishna went to meet Gandhari, the wife of King Dhritarastra and the mother of Duryodhana and many of his brothers who had perished in the War. So sore was that pious lady that she decided to curse them for having destroyed her sons and many others most venerated.. The great Vyasa could see through his inner eyes that the Pandavas would be cursed, and would have to reap the consequence of her wrath. He ran to Gandhari to dissuade her for doing so. The rest of the matter leading to this declaration of Yato Dharmahstato Jayah deserves to be said in the great words of the world’s greatest epic itself [ the Mahabharata Stripurva Chapt. 14. slokas 1-13 ]:

I give an English rendering of the some of the slokas as I have understood (though I do not think I have credentials for this task).

Then, after obtaining the permission from King Dhritarastra, the Pandavas , along with Shri Krishna, went to Gandhari.

When the most pious Gandhari, already wrenched with sorrow on account of her sons’ death, came to know that Yudhisthir, after destroying his foes, was coming to her, she felt like cursing him.

Vyasa had could know that Gandhari nursed in her mind that sort of decision. Knowing what she intended to do, he got ready fast, after having had quick ablution, and reached their place.

He could, with his spiritual and intuitive vision, see what ran in the mind of others.

So to tell things to promote the welfare of his daughter-in-law, Vyasa reached near her. After having warded of the sinister moments of curse, and having ensured the emergence of peace, he said:

"O Princess of Gandhar! Be at peace. You need not be so angry with the sons of Pandu. Utter not the words which you intend uttering just now; and listen to me.

On each of the 18 days when the war was being waged, your son, craving for victory kept on going to you to seek blessing to become triumphant, telling you, ; " Mother , I am going to fight the foes. Bless me for my welfare.

Whenever your son wanted your blessing for his victory, you told him "Victory is there where dharma exists’" but each time you told your son, "

………..

The victory of the Pandavas in the Great War they waged proved beyond doubt that Dharma is most powerful.

O pious soul, you were very kind always. Why not be kind and charitable even now? Get rid of what is not dharma (i.e. what is adharma), because where dharma is, victory is surely there alone.

O great soul! remember your dharma and your words, and as a matter of consequence, control your anger. O speaker of Truth! let not such idea come to you.

[ The translation is made by me from the text as it occurs in the Mahabharata Vol 4 pp. 4395-4396, published by the Geeta Press, Gorakhpur]

Dharma, as Medhatithi says, means duties. Deguit also stressed on duty as the basic force at work in the social matrix involving courses of solidarity and interdependence. He held: "The first essential ….was to banish from law all ‘metaphysic’, and particularly the notion of right. …. In Comte’s words ‘the only right which any man can possess is the right always to do his duty.’ Duty to what? Not to the State, for the State, though elaborately personified in so much juristic theory, is a mere fiction. L’Etat est mort! It, too, is merely a phenomenon of political fact, and its function in modern society is not the exercise of authority or power, but that of acting as a central agency for the performance of public service." [16] But the norms of operations governing the concept of dharma at work, as understood in Indian thought, are best expounded in the Bhagavad-gita. I wished that those who selected such words for the emblem of our Supreme Court should have prescribed that the Judges and the lawyers must study Bal Gangadhar Tilak’s Gita-Rahashya. In fact, dharma is our grundnorm on which our Constitution is founded, and by which it is sustained. But most of us have lived cramming empty legal sophistry facilitating the advent of Kaliyuga even the august jural world. As a witness to fact, I felt how accurately the 10^th century Srimad Bhagavad-Mahapurana (XII.2. slokas 2, and 4) reflected on the plight conspicuous all around.

[In Kaliyuga the wielders of power would succeed in tilting the scales of Justice in their favour. Those who cannot bribe may not expect Justice in the courts, Those, who excel in legal sophistry and logomachy [17] , would be considered pundits (the lawyers?) scaling height in proportion to their attainments in such crafts.]

[The translation is made by me from the text as it occurs in the Srimad Bhagavad-Mahapurana Vol 2 p. 773, published by the Geeta Press, Gorakhpur]

It often happens those who succeed somehow, develop illusions that their cause must be right as they could not succeed without Satya (Truth) and Dharma being on their side. They argue that this view is supported both by Satyameva Jayate and Yato Dharmahstato Jayah! …… I was often wondering how after this commitment to dharma, ( more fundamental than the Constitution itself) could our Supreme Court invoke the doctrine of Necessary Evil to ignore the loot of the nation (as done in Azadi Bachao & Shiva Kant Jha) ?, or could refuse to break the corporate shell to see the entente cordiale of fraud and collusion as it happened in that case?, or could make the Court narrow down its role to the anachronistic view expressed in "Juices est. jus dicer, non dare" ( as done in Assistant Commissioner of Income-tax v. Velliappa Textiles & Ors[18] ) unmindful of the feats of judicial creativity; or could promote judicial fundamentalism holding that its orders, after Review and Curative Petitions, even in the inter partes situation, are above the fundamental rights[ as it was held in Shiva Kant Jha v. Union of India W.P. I No (s). 334 of 2005 decided on Nov. 28, 2007]; or could say, in Rupa, that it is not an organ of the state without clarifying whose organ, after all, it was playing?

My Introspection & Evaluation

The judicial approach, and the tone of judicial evaluation made me introspect: whether I was a foolish interloper wasting judicial time. I felt that the Delhi High Court had rightly determined the core issue: the High Court had observed:

" The core issue is as to what should be done when on investigation it is found that the assessee is a resident of a third country having only paper existence in Mauritius without any economic impact with a view to take advantage of the double taxation avoidance scheme. No attempt has been made to answer the question on behalf of the Central Govt. inasmuch as it merely stated in the counter that power of the assessing authority under section 4(3) of the treaty has not been taken away."

I felt that I should interact with some eminent scholars to evaluate my assertions on the ‘core’ issue before the court. I sought opinions from two noted experts on what was considered the ‘core’ issue. They were: Prof. Ray August [19] , and Prof. (Dr) M.L.Upadhyaya [20] . Their opinions are quoted in nsustai in the Writ Petition 334 of 2005 [of Prof August, and of Dr. Upadhyaya]. Their views made me feel that I was on right track; and the cause was worth pursuing to its logical conclusion. For almost two hours Prof. Sol Picciotto of Lancaster University Law School, Lancaster, UK recorded my interview on the various issues involved in this PIL [21] .He was greatly appreciative of my endeavour. I received some valuable assistance from Prof. John Cary Sims of Mcgeorge School of Law, California, with whom I had the good fortune to interact at the 43^rd Congress of the International Association of Lawyers held in New Delhi. Shri Shanti Bushan, Senior Advocate, appreciated most of my points with candour and light for which I must be grateful to him .

But the whole endeavour Babu was with me. His these words provided me the touchstone to judge all the acts of the welders of power: the words of Mahatma Gandhi:

"I will give you a talisman. Whenever you are in doubt or when the self becomes too much with you, apply the following test:

Recall the face of the poorest and weakest man whom you have seen and ask yourself if the step you contemplate is going to be of any use to him. Will he gain anything by it? Will it restore him to control over his own life and destiny? In other words, will it lead to Swaraj for the hungry and spiritually starving millions?

Then you will find your doubts and yourself melting away."

And the text on the Board at Bapu’s Wardha Ashram couldn’t be forgotten as therein he had got written the seven sins which included "Politics without principles" "Wealth without work" and "Commerce without morality". [see photogrpahs section on my website Shivakantjha.org]

Much confusion exists about what was decided by the Supreme Court in Azadi Bachao & Shiva Kant Jha. To clarify the position I wrote an article "What Azadi Bachao says about Treaty Shopping/ Round Tripping".

(b) Scene II: The Review Petition

The Judgment on W.P 334 0f 2005 was delivered on 07-10-2003. I was not present in the Court. I had gone for a fortnight to Laheriasarai to conduct certain affairs at the Bhagavad-Gita Study Centre at "Veenapani Bhawan". I got information telephonically that the decision had goneadverse. I had a sense of cathartic repose. I felt that God needed my candle to burn for something else. While I was there, I got a call from V. Sridhar of the Hindu that he wanted to record my interview on the said Judgment. He recorded my interview from Madras, and published that in the Frontline. [22] He wrote some articles also on the abuse of the Indo-Mauritius Double Taxation Convention [The Frontline [23] ].

Azadi Bachao Andolan accepted the Judgment on its Writ Petition. I felt I must challenge it. The lawyers of Azadi Bachao Andolan adopted with equanimity what the Court did. Dr Samuel Johnson had aptly said:

"A lawyer has no business with justice or injustice of the cause which he undertakes, unless his client asks his opinion, and then he is bound to give it honestly. The justice or injustice of the cause is to be decided by the judge." [24]

I felt that I must question the decision which our common citizenry would consider unfair and unconstitutional. I was their alter ego; I decided to act from their observation-post. A Review Petition was filed. A Review Petition comes up before the Judges who decided the case. I wanted that the matter be disposed of in the open court, but the request was not granted. The Review Petition was considered in chambers, and was dismissed.

(c ) Scene III: The Curative Petition

This Petitioner presented a Curative Petition, invoking this Hon’ble Court’s jurisdiction under Articles 137, 142 of the Constitution of India, and its inherent powers, to reconsider, under the aspects of law and justice, the Judgment, dated October 7, 2003, of the Division Bench of this Hon’ble Court. The remedy, through a Curative Petition, is to be given within the parameters of the Constitution Bench Decision in Rupa Ashok Hurra vs. Ashok Hurra & Anr. (2002 (4) S.C.C.388. As per the procedure prescribed, a Certificate that the case was a fit case for filing a Curative Petition, was to be obtained from Senior Advocate. I felt that I must get it from Shri Shanti Bhushan, Senior Advocate, and a former Law Minister of the Union of India. I was told by some of my friends that a Sr. Advocates charges heavy fee for issuing the fitness certificate. I must record with high appreciation that, appreciating the national cause involved, he did not charge anything, rather he put me under gratitude by showering on me words of appreciation. This Petition was considered in the chambers by 5 Judges on several days. No hearing Ostiis apertis ( in the Open Court) was given. They dismissed by an order dated December 08, 2004, which ran as under:

"We have carefully perused the contents of the curative petition as also the certificate given by the learned senior advocate filed with the petition. We are not satisfied that any ground has been made out for entertaining a curative petition within the parameters laid down by this Court in Rupa Ashok Hurra v. Ashok Hurra & Anr. 2002 (4) SCC 388. The curative petition is dismissed in limine."

I was of the considered view that Rupa Hurra had been incorrectly decided in so many ways on so many points. Further, I agreed with H.M. Seervai, Dr D.D. Basu, and Ramchandran that it was wrong for the Court to hold in that case that no remedy under Article 32 of the Constitution of India could be granted even if the Superior Courts violated fundamental rights. Rupa appeared to me constitutionally objectionable, historically anachronistic, jurisprudentially unsound, and even unfair because of its self-exculpatory approach. I had written two chapters in my book, The Judicial Role in Globalised Economy [25] [ Chapter I: "Not on the Trident of Lord Shiva"; and Chapt. IV: " The Frontiers of the Doctrine of Ex Debito Justitiae"] on Rupa’s case, and how the view taken by the Court was open to serious criticism.

ACT III

[Before the Supreme Court ]

(a) Scene I: The Writ Petition

After a lot of deliberations, I filed a Writ Petition under Article 32 of the Constitution. It was a detailed Writ Petition in two volumes. So many "Great Firsts" were to the credit of the Writ Petition

(i) This Writ Petition contended, first the first time, that the decision of this Hon’ble Court in Rupa Ashok Hurra v. Ashok Hurra was made per incuriam, and required a reconsideration so that this Petitioner’s fundamental rights guaranteed under the Constitution of India could effectively enforced.

(ii) For the first time in our jurisprudence the reach and ambit of the Treaty-Making power of the Government was under judicial scrutiny.

(iii) For the first time under the common law jurisdictions the dfferntia inter se the treaty-making power of treaty in generic sense, and the treaty making power stricto-sensu in the form of a treaty pertaining to tax laws, were under examination.

(iv) For the first time, a Superior Court in this wide world has held in this impugned Judgment that it had no power to provide a remedy against Fraud, and, at best, it merely made a mere cri de Coeur to the Executive and Parliament to provide measures to eradicate this evil.

(v) For the first time in the civilized global jurisprudence, this Hon’ble Court had held the evil of Treaty-Shopping valid without showing any deference to the approaches shown by the superior courts in Britain, the U.S.A, Canada, France, Germany, and Switzerland et al.

(vi) For the first time in the recent years the Division Bench of this Hon’ble Court in the impugned Judgment not only departed from a decision of the Constitution Bench of this Hon’ble Court, but also provided it an indecent coup de grace with pejoratives like "hiccup" and "temporary turbulence".

(vii) For the first time after the Stuarts, the impugned Judgment granted the Executive a Dispensing Power, and sustains per incuriam and per ignorantiam the proposition that the norm-creating act of the Executive could override the mandatory provisions of a Parliamentary enactment.

(viii) For the first time in our country the limitations on framing a tax treaty in terms of Section 90(1) had come up for judicial consideration.

(ix) For the first time in the world a judicial decision is founded on the opinion of the interested person.

(x) For the first time, the court relied for its central reasoning on a book by an author having no juristic credentials, and the book unworthy and unsound in many ways: a book like of which had not hitherto been relied in any of its judgments of this Hon’ble Court.

(xi) For the first time a Judgment had been delivered which reeks with gross breaches of the Rules of Natural Justice, and was conspicuous for certain acts patently without Jurisdiction.

(xii) For the first time in this case an issue of greatest constitutional importance, whether the Superior Courts are the organs of the State within he meaning of that term under Art. 12 of the Constitution, has been raised as a Principal issue for judicial consideration.

(xiii) For the first time, certain important principles of Public International Law were ignored; and for the first time, a corporation, to the delight of the corporate imperium, was allowed to become an impervious cover-let of gross abuse, boding ill for our country.

(xiv) For the first time some of the prime issues thrown up by economic globalization had come up before this Hon’ble Court requiring creative judicial responses to the challenges emerging under the octopus-grip of all-embracing Globalization.

his Writ Petition was heard by a Bench of 3 Judges[ coram: Hon’ble Chief Justice, Hon’ble Justice R.V. Raveendran and Hon’ble J.M. Panchal] on Nov. 27, 2007 and also on Nov. 28, 2007. The Bench indented to dispose of the matter through that most used 9-letter word ‘dismissed’. But I pressed that some reasons must be given for my solace at least. The Court dismissed the Writ Petition by an Order dated Nov. 28, 2007. So the Court passed a speaking Order. Brief comments on the points set forth in this Order were thus summarized in the Review Petition against this Order which I filed on Jan. 3, 2008: to quote ---

(b) Scene II: The Review Petition

The Review Petition, against the Court’s Order of Nov. 28, 2007, was filed on January 3, 2008; , and is pending as on Jan. 9, 2008.

Latest Events

This Review Petition was considered by circulation in chambers, but was dismissed; petition for oral hearing in the open Court too was dismissed.

The PIL Petitioner felt that as the Writ Petition had raised important and substantial questions pertaining to the interpretation of Articles 12, 13, and 32 of the Constitution, the Writ Petition could be dismissed only by a Bench of 5 Judges. Hence a Writ Petition was moved against the orders made on the said Writ Petition (c) NO.334 of 2005. This Writ Petition (CIVIL) D.NO(s). 27922 of 2008 came up for preliminary hearing on Nov. 17, 2008. The Court (Hon’ble the Chief Justice & Hon'ble Mr. Justice P. Sathasivam) was in no mood to entertain it. Even the plea that as the impugned order was by 3 Judges, the Bench of 2 Judges could not proceed with the matter was rejected. This Writ Petition too was dismissed summarily without recording any reasons.

The saga of this PIL is immensely important for the students of constitutional law, and for all those interested in examining our Constitution at work. What this cavalcade of events, and this litigation at the epic scale make me think pro bono pulico would be examined in an article to be loaded on the www.shivakantjha.org later.

List of articles relevant to the issues involved in the PIL on the misuse of the Indo-Mauritius Double Taxation Avoidance Convention

1. "Parliament has a role to play now" Interview with S.K. Jha, former Chief Commissioner of Income Tax." Frontline Volume 20 - Issue 23, November, 08 - 21, 2003: Frontline

2. "Getting stranger by the day" by T. C. A. Ramanujam [CBDT's interpretation of the DTAAs leaves a lot to be desired, says T. C. A. Ramanujam]: The Hindu Business Line

3. Obscure contours of a conduit by S. Murlidharan [What makes India cosy up to Mauritius when it comes to taxation, asks S. Murlidharan]: The Hindu Business Line

4. "Tackling Tax Havens and ‘Offshore’ Finance" by Sol Picciotto Lancaster University Law School Seminar on Money Laundering, Tax Evasion and Financial Regulation: Transnational Institute, Amsterdam, 12th-13th June 2007

5. "Is Mauritius Treaty illegal and ultra vires the powers of Government u/s.90?"by Kishor Karia, Income Tax Law, International Taxation Jan 2004

6. "PIL in SC raises fundamental issue" by Satya Prakash, New Delhi, August 29, 2006: The Hindustan Times

7, "Verdict higher than fundamental right" by Satyaprakash The Hindustan Times Delhi Nov 28,

7. Indo-Mauritius tax treaty under cloud by H P Agrawal July, 17th 2006: CAinindia.org

8. Mauritius tax treaty in firing line again -H P Aggarwal Indiantaxsolutions.com

9. Verdict higher than fundamental right by Satyaprakash The Hindustan Times Thursday November 29, fhttp://in.news.yahoo.com/071128/32/6ntn5.html

10. CAG isn’t a lap-dog or a hound, but a watchdog of public accounts by Shiva Kant Jha, Sunday, August 17, 2003, Chandigarh, India: The Tribune

11. Judicial Analysis of Shiva Kant Jha v. Union of India [2002] 122 Taxman 952 (Delhi)

12. Mauritius Revenue Authorities issue a Circular to enhance the procedure relating to the issue of Tax: Residence Certificate KPMG

13. Double Taxation - Treaty-making powers - Shiva Kant Jha questions Govt's constitutional competence in a PIL in Delhi HC: Taxindiaonline.com

14. Growing use of tax havens for funding of terrorism: Taxindiaonline.com

15. In On-Going Globalisation Corruption Also Becomes It-Enabled! Taxindiaonline.com

16. DTAC With Mauritius: Delhi H.C. Quashes CBDT Circular No 789 Taxindiaonline.com

17. SC Ruling In Mauritius Case To Impact Economic Management Of India! Taxindiaonline.com

18. User Of Tax Havens Route For Financing Terrorism Taxindiaonline.com

19. Challenge To Legality Of Indo-Mauritius Tax Treaty Continues To Be Live! Taxindiaonline.com

20. No 'Hip-Pocket' For Unaccountable Powers Taxindiaonline.com

21. What Azadi Bachao says about Treaty Shopping/ Round Tripping Taxindiaonline.com

22. THE JUDGEMENT: What it means in the case of Shiva Kant Jha v. Union of India & Ors shivakantjha.org

[1] Our Supreme Court refers to the feats of Comus in Shrishti Dhawan v. Shah Bros AIR 1992 S C 1555

[2] "……. for the Self alone is the friend of the self and the Self alone is the enemy of the self." The Bhagavadgita VI. 5 ( Dr. S. Radhakrishnan’s Translations)

[3] Published by Wadhwa & Co. Nagpur and New Delhi

[4] Freud’s Thoughts for the Times on War and Death, and Civilization and its Discontent.

[5] "11. That this circling out of the case put forth by this Respondent before the Hon’ble High Court was done through a gross act of impropriety suggesting a deep game most unworthy in this august extra-ordinary discretionary jurisdiction of this Hon’ble Court.By modifying, without any reason, the judicially determined Cause-title of the judgment delivered by the Hon’ble Delhi High Court, the Petitioners’ in this SLP committed the impropriety of sitting on judgment of the Court, as the Court had made this Respondent’s case as the main case in view of the wider range of Grounds and Prayers in the Writ Petition,…." from the Counter-Affidavit

[6] Global Business Institute Limited, incorporated under the Mauritius Companies Act 2001 and having its registered office at Jurist Consult Chambers, Cathedral Square, Port Louis, Mauritius.

[7] I still believe that the Mauritius company had no locus standi to become a co-Appellant with the Union of India. It is with this view of the matter that I did no t make it a necessary party when I filed the Writ Petition against the decision of the Division Bench of the Supreme Court [CW 334 of 2005]

[8] . 26 ITR 736.

[9] . 87 ITR 349.

[10] . 26 ITR 775.

[11] . 37 ITR 151.

[12] . 37 ITR 288.

[13] . Kanga & Palhivala’s Income-tax 7th ed p. 1135.

[14] . The Indian Express of 12-10-2003.

[15] at p..698

[16] C.K. Allen, Law in the Making (Oxford) pp. 39-40

[17] ‘Contention about words; controversy turning on merely verbal points’ The New Shorter Oxford English Dictionary.

[18] (2003) 184 CTR Reports 193]

[19] Professor of Business Law, Washington State University and the author of International Business Law (4th ed. 2004)

[20] Ph. D. former Professor & Dean of the University of Calcutta, now Professor & Vice President, Amity Law School, New Delhi

[21] As I explained on the phone earlier today, I am doing some research on international taxation issues, especially problems of tax avoidance. I am interested in arrangements between tax authorities for countering the use of tax havens, such as exchange of information. I read with interest the case which you helped to bring concerning the India-Mauritius treaty. I would very much like the opportunity to speak with you about this case and related issues, such as India's policies on tax treaties and treaty provisions, such as limitation of benefit clauses, information exchange provisions, and so on." in an e-mail "Sol Picciotto" s.picciotto@lancs.ac.uk sent from LosAngeles.

[22] "Parliament has a role to play now" an Interview with S.K. Jha, former Chief Commissioner of Income Tax published in Frontline, Volume 20 - Issue 23, November, 08 - 21, 2003.

[23] Frontline, Volume 20 - Issue 23, November, 08 - 21, 2003

[24] Dr. Samuel Johnson: Boswell, Tour of the Hebrides, 15 August 1773

[25] Published by Wadhwa & Co, Nagpur and New Delhi.

[26] H W R Wade, after examining the the dicta by Lord Denman in Bolton, and by Lord Sumner in Nat Bell comments in his Administrative Law 7^th ed p. 299::

"In their own time and context these statements were unexceptionable; they expressed the traditional doctrine that so long as jurisdiction existed, mere error as such would not destroy it. But it does not in the least follow that no sort of error made in the course of the proceedings can affect jurisdiction. Some questions may arise which the tribunal is incompetent to determine; or some point may be decided in bad faith or in breach of natural justice or on irrelevant grounds, or unreasonably, all of which faults go to jurisdiction and render the proceeding a nullity."

This comment was endorsed by Lord Mustill in Neill v. North Antrim Magistrates’ Court. [1992] 1 WLR 1220 (HL).

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