There can be nothing but unbounded admiration for the tour de force of an order, extending to 67 pages and 80 paragraphs, passed on July 4 by the Supreme Court Bench consisting of Justices B. Sudershan Reddy and Surinder Singh Nijjar on the Writ petition of Messrs Ram Jethmalani and others, demanding stringent action against Indian nationals who had stashed unaccounted money in foreign banks and tax havens and disclosure of the names and other particulars concerning such persons and their accounts.
It is a historic verdict that has not only done ample justice to the issues at stake, but is a masterly treatise on the duties and obligations of the state and the parameters determining the quality of governance and the inescapable imperatives of transparency and accountability to which elected governments are required to conform.
It sets out the dangers of the neo-liberal economy, dealing at some length with the cultural paradigm of “Greed is good” engulfing the country. That India exhibits all the characteristics of a soft state as per the definition of Gunnar Myrdal had been the theme of many Indian and foreign writings. The apex court's Order gives a disturbing account of all the instances of tardiness by the Government in unearthing black money and its willingness to turn a blind eye to the glaring malfeasance of the gangs involved.
The Court says: “Depending on the volume of such monies, and the number of incidents through which such monies are generated and secreted away, it may very well reveal the degree of softness of the state.”
The Order goes beyond this to enquire whether India is also becoming a failed state. Its quotation from a publication “When states fail : Causes and Consequences” brought out by Princeton University, dwells on the features of a failed state, which are remarkably similar to those present in the country: Unparalleled economic opportunity confined to a privileged few, hand-in-glove with the ruling oligarchy; conspicuous absence of the Government's responsibility to maximise the well-being and prosperity of all its citizens; and flourishing corruption — petty and “lubricating,” on one side, and uncontrollably escalating on an unusually destructive scale, on the other.
The impression left in the minds of the people by the findings of the Bench on the conduct of the Government and its investigative and enforcement agencies, insofar as black money is concerned, is that of their having been negligent of their duties under the Constitution.
Gravamen of the charge
The Supreme Court actually gives blunt expression to its worry on “the extent of (systemic) incapacities …as well as (those) of ethical nature, (which) go to the very heart of, (and run afoul of), constitutional imperatives of governance”. It minces no words while pointing out that “the lack of seriousness in the efforts of (the Government) is contrary to the requirements of laws and its constitutional obligations….(It) clearly indicates a compromise of the ability of the state to manage its affairs in consonance with what is required from a constitutional perspective…. A substantial degree of incapacity, in the above respect, would be an indicia of the degree of failure of the state”.
In essence, the picture emerging from the Order is of the Government's failure to discharge its functions in compliance with the provisions of the Constitution. If the same situation had arisen in respect of a State, it would have led to the dismissal of the State Government and imposition of the President's Rule!
The Supreme Court's Order setting up a Special Investigation Team with retired Supreme Court Justices as the Chairman and Vice-Chairman and directing the Government to disclose to the petitioners the names and nature of the action taken, except in regard to investigations which are yet to be completed, can only mean a well-deserved verdict of lack of confidence in the bona fides of the Government which, one regrets to say, has brought it all on itself by its omissions and commissions.
On the whole, a decision that does the Supreme Court proud.