In a repeat of the line taken by the previous UPA government, Attorney General Mukul Rohatgi also invoked arguments on diplomatic relations, international commitments and confidentiality clauses to urge the Supreme Court to modify its 2011 order which had ordered a complete disclosure of information on people who held tainted money abroad.
In the rup up to the Lok Sabha elections, the promise of repatriating black money had become an integral part of many speeches by Narendra Modi and other BJP leaders. They assured voters that if elected they would retrieve black money kept abroad. Once in power, the NDA government, in accordance with the deadline set by the SC, set up a probe team of 11 members, headed by former SC judge M B Shah.
The governments fresh application, in this context, comes as an early unravelling of the high-pitched promise.
The application has in fact questioned the authority of the SC in issuing orders that had ramifications on the executive governments power to enter into agreements with foreign governments.
The power to enter into agreements and treaties with foreign governments is an act solely within the domain of the executive governments... The validity of the terms of such agreement, having international ramifications, would not be justiciable being beyond the purview of judicial review, said the plea. Rohatgi mentioned the matter before a bench led by Chief Justice H L Dattu. The bench agreed to hear the plea on October 28.
The application was stoutly opposed by senior advocate Ram Jethmalani, who had filed the PIL in 2011 on retrieving black money. The SC had then ordered a court-monitored probe by a special investigation team. Seeking a dismissal of the government plea, Jethmalani accused the incumbent NDA government of trying to protect the culprits.
Such application should have been made by the culprits and not by the government. It is very serious. I have also written a letter to the Prime Minister on this issue and his response is awaited, Jethmalani said. The bench, however, said that it was yet to go through the application and fixed it for a hearing post-Diwali.
The governments application cited treaties India has with foreign countries and a new treaty, Inter Governmental Agreement, which it sought to sign with the US.
The UPA government had also pleaded the court for changes to its 2011 directives, based on similar grounds, which included limitations on judicial review, maintenance of diplomatic relations and double taxation avoidance agreements that protected unbridled disclosure.