EDITORIAL

NOIDA/DELHI

8 THE HINDU TUESDAY, NOVEMBER 11, 2014

The question of the sealed envelope
Peter Ronald deSouza
I
t would certainly be an exaggeration to
suggest that the advance of the Rule of
Law in India hinges on the jurispru-
dence around the sealed envelope.
TUESDAY, NOVEMBER 11, 2014 And yet when one heard the discussion on
television the other day, between the Attor-
ney General of India, Mukul Rohtagi, and the
Addressing TV anchor, Karan Thapar, on whether the
decision by the government of India to give
the names of those with black money ac-
competing demands counts in Swiss banks to the Supreme Court
violated the Double Tax Avoidance Agree-
ment (DTAA) with France, one would be for-
rime Minister Narendra Modis rst expansion given if one believed that this was indeed the
In the black money case, all our hopes are glued to
a sealed envelope submitted by the government
to the Supreme Court. But will we ever question
the political culture associated with it?
not lose sight of the single issue at stake here
of the extent of the Supreme Courts juris-
diction within our constitutional order. Even
if there is a conict between the courts direc-
tion, to hand over to it the list of names in the
governments custody, and the treaty obliga-
tions which prevent the government from
handing over names to anyone including a
they levied, of about $9 billion, on the French
Bank BNP Paribas.
Rewarding the predator
This brings me to the second aspect, the
nature of the existing international economic
order which rewards predators, and justies
this structure of reward under the specious
The third issue is whether the sealed enve-
lope being handed over to the court meets
the requirements of the rule of law, to protect
the right to privacy of any individual, even
one who is accused. The Attorney General
seems to think there is no inconsistency in
the list being handed over, in a sealed enve-
lope, from the government of Indias custody,
the party to the DTAA agreement, to the Su-
preme Court, which is a different institution-
al authority. As long as the envelope remains
sealed. But what if the court opened the
envelope? Would it amount to a breach of the
DTAA? The Attorney General seemed to imp-
ly that this would be so and argued that the
court should not open the envelope even

P of his Council of Ministers has his unmistak-

able imprint, with some difficult allies rmly
put in their place and immigrants from other
parties rewarded. In his quest for as coalition-free a
government as possible, Mr. Modi evidently intends to
use the BJPs impressive electoral mandate to minimise
the role of tantrum-throwing partners. And so, the Shiv
Senas demand for a second Cabinet berth at the Centre
and key portfolios in the Maharashtra government in
exchange for its support were brushed aside, even as
Suresh Prabhu from that party, an administratively ex-
perienced if politically marginal leader, was inducted
into the BJP on Sunday morning and sworn in as Rail-
way Minister hours later. Ex-Congress veteran Birendra
Singh, who joined the BJP before the Lok Sabha polls,
has been given not just Cabinet status but the key port-
folios of rural development, panchayati raj, drinking
water and sanitation. Ram Kripal Yadav, who defeated
RJD boss Lalu Prasads daughter in Bihar on the BJP
symbol after being denied the RJD ticket is now a
Minister of State. Inderjit Singh Rao, who exchanged the
hand for the lotus before the elections, had become an
MoS with independent charge in the rst round itself.
The expansion also reects the fact that minimum
government does not always produce maximum gov-
ernance: the government has acquired 21 fresh faces,
taking the strength of the Ministry to 66, as some over-
burdened senior Ministers have been relieved of addi-
tional responsibilities. Finance Minister Arun Jaitley
has shed defence, Communications Minister Ravi Shan-
kar Prasad law, Shipping and Road Transport Minister
Nitin Gadkari rural development, and Environment
Minister Prakash Javadekar information and broadcast-
ing. Of course, in acknowledgement of Mr. Jaitleys
status as Modi condant and his skills as a communi-
cator, he will also steer the I&B Ministry. The choice of
new entrants also points to competing demands of in-
ducting talent, increasing geographical and caste repre-
sentation, and addressing the BJPs core Hindutva
constituency. If the entry of former Goa Chief Minister
Manohar Parrikar as Defence Minister, the Harvard-
educated Jayant Sinha as MoS for nance and Mr. Prab-
hu mark infusion of talent, the Ministrys social compo-
sition has been enhanced four more Brahmins, three
of whom are in the Cabinet, two Jats to compensate for a
non-Jat Chief Minister in Haryana, and more OBCs and
Dalits. The only woman to be included, Niranjan Jyoti, is
a saffron-clad sadhvi. And the controversial Giriraj
Singh, a Bhoomihar from Bihar, had endeared himself to
the new dispensation when he declared that all those
who did not like Mr. Modi should just go to Pakistan.
case. Should the government of India have
handed over to the Supreme Court of India
the sealed envelope with the 627 names? Was
this action a violation of the DTAA with
France or was it consistent with the terms of
the agreement? Are the arguments being ad-
vanced by legal officers pragmatic ones, i.e.,
there will be damaging international reper-
cussions; or ones of principle, i.e., it was given
to our Supreme Court and hence was con-
cerned with our sovereignty? Can India be
trusted as a country where the rule of law
prevails? In the sealed envelope lie many is-
sues of our constitutional democracy. Open it
we must.
Lines of inquiry
Listening carefully to the TV discussion,
one discerned two possible lines of inquiry.
The rst is obviously legal where questions
relating to the Supreme Courts instruction
and the governments reluctant compliance
with it, in the light of Indias treaty obliga-
tions, need to be examined in terms of the
rule of law. The other, interestingly, is cultur-
al where the many meanings of the sealed
envelope, in our public discourse, needs de-
tailing. Let me begin with the legal
dimension.
For a public discussion, there are four sub-
stantive aspects of the legal case that need to
be agged. The rst concerns the jurisdic-
tion of the Supreme Court of India. While
there are many ne issues of the law that will
be debated by scholars and practitioners of
international law, concerning treaty obliga-
tions and international bodies which have the
authority to adjudicate over them, we must
CARTOONSCAPE
court except in a specic case where there is a
prosecution under way against named per-
sons, I would argue that the principle of sov-
ereignty makes it binding on the government
of India to hand over, if instructed, the entire
list to the court. This single act establishes the
sovereignty of our constitutional order. Our
court will decide how the government shall
act in a situation of multiple obligations in-
cluding international ones.
Since the rule of law is a feature of the basic structure of
the Constitution, and since the Supreme Court is the custodian,
it is safe to assume that the court will act consistently with
the rule of law.
Since the rule of law is a feature of the
basic structure of the Constitution, and since
the Supreme Court is the custodian, in the
last instance, of this basic structure, as per
the judgment in the Kesavananda Bharati
case, it is safe to assume that the court will act
consistently with the rule of law. Its decision
is nal as far as the rule of law is concerned.
For some state or non-state external author-
ity to seek to prohibit the government of
India from sharing its data with the Supreme
Court is both arrogant and wrong; arrogant
because it downgrades the Indian Supreme
Court to a subordinate status on matters of
law, and wrong because it gives higher au-
thority to an external authority.
Courts in the United States have repeatedly
affirmed their own supremacy on jurisdic-
tional issues, most recently in the hefty ne
argument of the rule of law. There are many
instances where Global Capital, particularly
American, uses its domestic laws to punish,
by law, those who stand up to its interests
since, over the last few years, it has built up a
web of interlocking laws, both domestic and
international, that have ring-fenced these in-
terests. The consequence of this, particularly
for the global South, is that predators can seek
protection by hiding behind laws in extrater-
ritorial jurisdictions. These partisan laws
protect the predator against the just claims of
the victim. Look at the Bhopal gas tragedy
case and compare it against BP in the Gulf of
Mexico. The Indian Supreme Court standing
up to these partisan laws that protect preda-
tors is in fact a blow for the rule of law.
International tax havens and banks with se-
cret accounts have in recent years succumbed
to pressure from the U.S. government to re-
veal names of U.S. nationals who are tax
avoiders. Here the defence of secrecy and
privacy do not stand up to the U.S. demand.
This courtesy, of revealing names is, however,
not available to Countries of the Global South
who do not have the means to impose their
will. A powerful army is clearly a stronger
argument to achieve desired outcomes than a
powerful argument.
though it has possession of it. So while the
court has the names in a sealed envelope, and
can choose to know who they are by opening
the envelope, it chose to hand over the un-
opened envelope to the Special Investigation
Team (SIT) constituted by it to investigate
the black money case. Did the learned judges,
by this action, align the Indian law with
DTAA, thereby meeting both requirements of
the supremacy of Indias Supreme Court and
the protections to persons under DTAA?
This brings us to the fourth issue, the moral
and legal issue of the status of the data. Since
it was stolen data, and also data made avail-
able by a whistle-blower, can a constitutional
system use this data for prosecution? Is the
use of stolen data compatible with the rule of
law? Does the fact that the data was con-
rmed by the government of France change
its legal status as stolen data? Is this similar to
the doctrine of double effect in moral phi-
losophy, where an action that causes harm is
permitted, as a side effect, if the primary
purpose of the action is to promote some good
end? Germany had to deal with this moral
conundrum when stolen data from a Swiss
bank, of German tax avoiders, was offered to
the German government for a price. The Ger-
man government bought the stolen data.
Guarantee of impartiality
Now let me move to the other dimension,
the political culture of the sealed envelope.
The question of whether this is an Indian
ritual or a colonial legacy is for historians to
establish. For those of us who have worked on
government committees, the sealed enve-
lope guarantees the impartiality of the proc-
ess. I have been a member of the executive
committee of many universities and in many
meetings, almost routinely, a sealed enve-
lope is placed before the committee and we
are informed that it contains the list of candi-
dates, selected by a committee, for a profes-
sors position in a particular department. The
sealed envelope has been in the possession of
the registrar who, at the meeting, formally
seeks the permission of the vice-chancellor to
open it. This is given by a subtle nod. The
envelope is then held up, higher than the
table around which we are seated, as if to
place it in the light and thereby show the
members of the committee that the process is
both proper and condential. In some cases
the envelope is sealed with red wax. A little
ceremony of de-sealing the envelope then
takes place, an important ritual of impartial-
ity. None among the committees members
even looks at the envelope. When was it
sealed? Who sealed it? Could it have been
done 20 minutes before the meeting, are
questions too embarrassing to be asked. The
opened envelope is not subjected to forensic

Still plagued examination. We have seen the raised sealed

envelope. This is enough. Fairness is guaran-
teed. It meets the CAGs requirement. I asked

by accidents an eminent sociologist to give me his learned

opinion on the semiotic signicance of the
sealed envelope for our democratic polity. He
promised to give me his views in a sealed
he Indian Navy continues to be accident-prone envelope.

T after a brief respite. Last week, an auxiliary

ship sank off the Visakhapatnam coast. This
tragedy claimed the life of one sailor while four
personnel were deemed missing. This is the second
(Peter Ronald deSouza is Professor at the
Centre for the Study of Developing Societies.
The views expressed are personal.)

incident in a fortnight after INS Kora, a missile corvette,

was scraped by a merchant ship near Vizag and suffered
minor damage. After the latest incident, the Navy is left
with just one Torpedo Recovery Vessel. Since August 14
last year, when an onboard explosion sank INS Sind-
hurakshak, a Kilo-class submarine that was berthed in
Mumbai, there have been 15 accidents. In fact, an acci-
dent on another submarine, INS Sindhuratna, on Febru-
ary 26 cost the Chief of the Naval Staff, Admiral D.K.
Joshi, his job: he resigned owning moral responsibility.
The resignation caused a major shuffle in the Navys top
brass and the new chief, Admiral R.K. Dhowan, ordered
a review of procedures and later stated that the causes of
all the incidents had been thoroughly analysed. But the
trend has not been arrested, and now it seems the
lessons learnt were incomplete. The problem is across-
the-board. Submarines, front-line warships and support
ships alike have suffered accidents. This suggests sys-
temic lapses, be it in maintenance, acquiring spares or
non-adherence to standard operating procedures. Be-
sides, it is essential to take note of Admiral Joshis
recent comments about his inability to take routine
maintenance and procurement decisions for his force.
This hints at bureaucratic overreach and a crisis of
condence between the bureaucracy and the military.
It is paradoxical that a Navy that is operating about
180 ships and inducting large modern platforms is
plagued by issues of maintenance and spares. In the
global context, this does not bode well for a force aspir-
ing to be a blue-water Navy and to establish itself as a net
provider of security in the region. It is widely acknowl-
edged that the Indian Navy is a pre-eminent force in the
Indian Ocean region. And many navies in the region are
looking to the Indian Navy for support and leadership. It
comes as no surprise that of late naval diplomacy has
become a major thrust area in New Delhis diplomatic
outreach and the Navy has been extending training and
maintenance support to many nations. A dubious safety
record at home will raise serious apprehensions in the
minds of other nations about the countrys credibility
and capacity. Whatever the reasons, these incidents are
unacceptable. Mere assurances of review and reorienta-
tion will not help maintain the Navys image as a profes-
sional force if such accidents keep happening. Precious
lives, expensive platforms as well as the larger credibil-
ity of the Navy and the nation are at stake. It is time for
some honest introspection and course-correction.
CM
YK
LETTERS TO THE EDITOR Letters emailed to letters@thehindu.co.in must carry the full
postal address and the full name or the name with initials.
electronic media appear to be inhuman teachers who tend to society evolves. In Kerala till a few writer, only a minority of about 20
Now, 66-strong practising Minimum news, punish their students excessively. decades ago, women of lower castes per cent of Indian communities are
Should the Prime Minister have Maximum propaganda for the NDA Tharcius S. Fernando, had to ght for their rights and brave vegetarian. This makes it all the
waited for six months to induct into government by not covering issues Chennai violence in order to wear blouses. more imperative that the wishes of
his Ministry novices who owe their such as some controversial and Should they have continued in the such a student body that requests a
positions to considerations other tainted members being appointed as Sinking of a ship same way in the name of sanctity of separate vegetarian mess should be
than merit? In the end, the exercise Ministers. As a citizen of India who pays taxes societal values? As women acquire honoured. As a Professor of history,
of expansion evoked a sense of dj Richard Jonathan J., that also go towards the independent economic status and the writer should not be alien to the
vu Mr. Modi has followed the Meignanapuram, Tamil Nadu maintenance of our armed forces, the space for close interaction with views held sacred by pious Hindus
UPAs formula in forming his team my condence in the Indian Navy men expands, moral standards of for whom vegetarianism is not just a
by balancing caste and regional The expansion is a sign that has eroded considerably following yore, heavily loaded against them, culinary choice but a way of life. At a
equations within the party, apart development is apace. The decision recurrent disasters (Nothing are bound to crumble. time when international
from keeping an eye out for his to include leaders from all castes is wrong with vessel, Navy chief, Manohar Alembath, universities are going all out to
partys electoral prospects in the but a testimony to the governments Nov.10). The sinking of the naval Kannur accommodate students who are
election-bound States. Anyone can principles of secularism and torpedo recovery vessel TRV A-72 vegans and vegetarian, it is
be forgiven for suspecting that there equality. points to the poor maintenance Culinary choices unfortunate to read the
is an acute shortage of talent in the S. Bindu Sravya, standards of the Navy. As former I would like to ask the writer authoritarian views of an Indian
party to ll key posts. Since Visakhapatnam Vice Admiral K.N. Sushil has rightly (Dictating the culinary choices of Professor. It is time we stopped
maximum governance will remain said, such things cannot be allowed students, Nov.10) why it is that looking at vegetarianism only
empty rhetoric, the Prime Minister
should at least advise the new
Wigneswarans appeal to happen. As a former sailor of the providing vegetarian food or
Indian Navy, I think the root cause setting up vegetarian messes in IITs,
through the tinted glass of religion
and instead moved on to accept that
Ministers to either perform or quit, It is unfortunate that India is of such happenings is the IIMs is considered to be dictating it a personal choice that needs to be
notwithstanding their utility in turning a deaf ear to the fervent diminishing disciplinary standards the culinary choices of students? respected.
enhancing electoral prospects. appeal by Tamils in Sri Lanka to within the Navy. Do vegetarians have no access to Swetha Iyer,
There should have been a lateral persuade the Sri Lankan George Mathai, right to eat the food that they Bengaluru
entry route into the Ministry for government to reverse the ongoing Kochi prefer? The move by the HRD
talented people. militarisation of the Tamil-majority Ministry has to be seen as expanding I am shocked by the writers
V.N. Mukundarajan, region (Wigneswaran seeks Indian Kiss of Love the culinary choices of students. advocacy of non-vegetarianism
Thiruvananthapuram help to end militarisation, Nov. 10). Those who insist on going ahead Prasad Kandra, among vegetarian students in
India has a duciary responsibility with acts such as kissing in public Bengaluru academic institutions. Vegetarians
Mr. Modi appears to have realised towards the Tamils in Sri Lanka. Sri certainly lack ne sensibilities. This eschew eating meat not because we
nally that for good governance one Lanka needs to start treating the is a kind of exhibitionism and Reviving culinary segregation is but want to propagate Bharatiya
needs people and that a country like Tamil population on equal terms. As indulged in by affluent youngsters another brick that strengthens sanskriti but because we care for
India which has many complexities the invitation to Prime Minister who delight in drawing attention to boundaries in society. The main animals. Further, while charging
cannot be governed with 40-odd Narendra Modi to visit Sri Lanka is themselves at any cost. The main problem lies in lack of knowledge vegetarians with being ignorant of
people at the Centre. Less still open, he needs to pay a visit culprits in all this are the social and a misinterpretation of the true Ayurvedic meatarian recipes for
government, more governance soon in order to acquaint himself media, which thrive on such cheap spirit of our culture by a few. therapeutic purposes, the writer
seems to be a hollow election slogan. with the sufferings of the Tamils. acts of publicity. When most Bharatiya sanskriti is about needs to acknowledge the benets of
Mr. Modi also realises that it is not K. Bala Sundaram, Indians still struggle to earn their developing unity despite the odds. vegetarianism and the spread of
easy to nd people who are talented Dharmapuri, Tamil Nadu daily bread, it is unfortunate that M. Shravan Kumar, veganism in the West. As for her call
as also loyal to him. A close look at some with a perverted bent of mind Warangal to vegetarians to cultivate
the Ministers inducted shows that
there are contradictions; not all of
Corporal punishment indulge in such acts. The
government needs to act before It was amusing to read the
tolerance, does not democracy
mean guaranteeing or tolerating the
them are clean as well. The report that a ve-year-old tribal something even worse is planned. intolerant views expressed by the basic rights of even the minority,
Amit Bhandari, boy succumbed to his injuries after Israel K. Mani, writer. The unfortunate use of the especially when it concerns
New Delhi his teacher slapped him (Nov.10) Wellington, Tamil Nadu words emboldened to demand, compassion for animals and their
comes as a rude shock. It is reeks of an attitude that implies that own survival? I wish she had
Minimum government, Maximum surprising how a teacher who we It is absurd to defend cultural and it is beyond the powers of an Indian focussed on the need for hygienic
governance appears to be a understand is a lady, who is moral policing in the guise of community to request to conditions in the canteens of even
marketing slogan similar to those expected to be more compassionate, upholding Indian culture. Cultural accommodate their expressions of institutions such as the IITs.
used by Mr. Modi during his election could do it. The incident again and moral standards are not cast in personally-held beliefs within India. Jayanti Rao,
campaigns. On the contrary, the highlights the need to rein in stone and undergo changes as Going by statistics cited by the Bengaluru
ND-ND