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The Tale of a 'Sparrow' Battling for 'Bharat' Against 'India Incorporated'

TIOL - COB( WEB) - 262
OCTOBER 20, 2011

By Shailendra Kumar, Editor

I would like to dedicate today's column to the life of a 'representative common man' who possesses extraordinarily uncommon traits. Unlike the famous cartoonist R K Laxman's creation - The Common Man who generally acts as a silent witness to all the action in his cartoon, the septuagenarian common man I am going to talk about in this column, represents the most active catalytic agent of democratic forces, imbued with highest quality of jurisprudential skills. Throughout his life, he has acted as the most alert Dwarpal to our Constitutional Value System which is the cornerstone of our pluralistic democracy. When the loom of time persuaded him to stand firm, and even alone, against the brutal might of the giants of the global financial oligarchy feeding on the flawed Indo-Mauritius Doule Taxation Avoidance Convention (DTAC), he never showed even remote signs of dithering. Earmarking a part of his pension money to meet the costs of the paperwork any legal battle of this size involves, it was largely a solo for him. Of course, many ohters like-minded democrats joined him later but he fought his own battle of conviction, and also won it at the Delhi High Court-level. True, he lost the Azadi Bachao (2003-TII-02-SC-INTL) at the Apex Court level but his conviction representing the interests of the pro bono publico did finally prove 'infectious' if one goes by the letters and spirt of the recent Supreme Court decision in the case of Ram Jethmalani Vs Union of India in the much-reported tax haven and black money case (2011-TII-05-SC-INTL).

Thanks to his untiring campaign against the growing instances of tax treaty abuse, even the Government of India can now be seen to be parroting his lines for review of India-Mauritius tax treaty. Only yesterday, while addressing the media persons at the Economic Editors' Conference at PIB, the Union Finance Minister, Mr Pranab Mukherjee, said, ¶India is constructively engaged with Government of Mauritius to update the existing Double Taxation Avoidance Convention (DTAC) in line with the international practices.'' Although the FM and others in the Govt have been repeatedly talking about the review of the present treaty but none answers the most basic question - Why has the UPA Govt not withdrawn the most infamous CBDT Circular No 789 which is the root of many ills afflicting our not only the taxation system but the overall politico-economic governance paradigm. Mauritius is at the root of many of even recent scams like the 2G where huge amounts of funds were laundered into our telecom sector through Mauritius. Even in the case of Indian wealth locked in many tax havens, Mauritius does not pale against many other capital-luring destinations.

¶LegalI am sure many of our Netizens, by now, must have guessed who am I talking about? The most eligible 'representative common man' in India is Mr Shiva Kant Jha, 1964-batch Indian Revenue Service (IRS - Income Tax) officer who retired in 1998 but did not comply with the man-made rules of putting full stop to his active life beyond 60, and continued to enrich the Indian taxation jurisprudence with his challenging expositions. After questioning the infamous CBDT Circular 789, he went on to find pernicious impact of global multilateral system nourished by the WTO and filed a writ in Delhi High Court. He then tailored two highly absorbing books - ''Judicial Role in Globalised Economy'' and ''Final Act of WTO: Abuse of Treaty Making Power''. Inspired by the swelling response and the conviction of having impacted our political economy, he has now authored an autobiographical memoir which has been described by globally renowned Professor (Emeritus) of Massachusetts Institute of Technology Noam Chomsky as ''A fascinating life story, beautifully rendered''. In his FOREWORD, former Chief Justice of India, Justice R C Lahoti has observed that an autobiography is worth being written if the author has not been a mute spectator but the one who has also moved the needles. And by all standards, Mr Jha can be credited to have 'moved many needles'.

Let's now go straight to his precious compilation of intellectually-energising experiences spanning over more than seven decades. The First Part deals with his family of freedom fighters, his own people, his parents who embraced the lathi of the British-Raj, his childhood days, ruminations of his adolescence period and finally the flowering of his mind - a tryst with the academic world. Starting his career as a Lecturer at the age of 20, he later joined the Sardar Patel-ointed Steel Frame of India as an IRS officer. While working with the Income Tax Department, he had two innings of posting in Patna, and both were eventful. The second inning was particularly more exciting as he had to deal with the most celebrated scam involving one of India's most rustically eloquent politician Laloo Prasad Yadav. He has a lot to share on the fodder scam and also to lend an insight into how to conduct investigations into such high-profile cases. Mr Jha has devoted a full chapter on intricacies of the monitoring of cases by the Patna High Court and also talked about 'The Concept of Judicial Monitoring: A Critique of the Concept'. This has become more relevant in the light of the recent decision of the Apex Court directing the Govt to notify Special Investigation Team (SIT) on the cases relating to black money. He has also spoken of the plight of our continuously decaying public administration, courtesy the Shah Commission Inquiry Report. He has sumptuously reflected on the existing Income Tax law and also the tax administration. Readers may recall the Income Tax Department has been celebrating 150th Year of its service to the Nation, and if we find their services worthy of any encomium, it is only because of the officers like Mr Jha.

The most engrossing and contemporaneous is the part III which vividly depicts both the illusion and the reality of our system. It begins with the author's perceptions and expectations submerging in the realities prevailing on the campus of the Supreme Court. Experiencing the medley of homo juridicus on the campus the author states: ''I found many learned friends either busy breaking the wings of butterflies on the Catherine wheel of logic, or in denigrating (or admiring) the idols they were accustomed to worship, or just talking without rhyme or reason and about kings and cabbages.'' If any reader wants to have a tryst with the musical architecture, the pregnant murals, the fantasy to be weighed in the balances and the emblem of the Supreme Court, the first few pages are elegantly rich in details. Then follows the serious food for thoughts for the present and the coming generations. The author has richly reflected on Hindu's famous God Lord Krishna and the magnum opus Bhagavad Gita. How deeply this religious-cum-wisdom-studded empirical compilation has dominated the mind of the author and his understanding of our various democratic and legal institutions in that context can be seen through the cross-titles like ''Our Problem: The Wallace Syndrome'', ''The Imperatives of the Grammar of Life'', ''Gita providing a remedy against the 'moral deficit' of our time'', ''Krishna and Buddha, Krishna and Jesus, Krishna and Muhammad, Krishna and Marx and Krishna and Gandhi'' - a fascinating landscape of analogies.

Then comes our Constitution at work - a critical commentary on constitutional socialism and a warning for the creatures of Constitution to accept the discipline of our Constitution. For the votaries of constitutional democracy, this part is perhaps the most sumptuous insight. It is followed by the 'Democratic deficit' in the exercise of our Govt's treaty-making which has become a major bone of contention between India and Mauritius today. For issues like black money and illicit funds secreted away in tax havens, inadequacies in our treaties have come under scathing attack, and that is how we see today the Govt of India hurriedly signing dozens of Tax Information Exchange Agreements and the amendments in Article 26 of the existing DTAAs numbering about 80. While delineating on this aspect, the author has extensively taken a hard look at the achievements and expectations from our Parliament; Executive's attitude towards Parliament - An instance of gross 'democratic deficit'; the opening up of our economy - what went wrong; Political parties - Whether essential for a democratic polity and 'On the Anna Hazare Movement'. For those who care for the holistic insight into the evolutionary issues of democracy, the author has elegantly analysed the Western Views and the nature and the parameters of the Western Democracy. In this context, no reader should miss the chapter on 'Our Worldview & The Trends of Our Time'. Here, the author has analysed the grammar of the dominant 'Western Worldview and Our Illusion' that the economic globalisation is a sufficient guarantee against a major war.

Apart from treaty-shopping, the author has also focussed on the GATT Agreement (the World Trade Organisation) and aptly titled the chapter as 'The Realm of Darkness: The Triumph of Corporatocracy'. This chapter is indeed an eye-opener for the 'shut eyes' of the Third World which is being gobbled up by the aggressive trading giants of the First World, and the WTO tends to pave the way for them by removing tariff wall and non-tariff barriers. How India has succumbed to the WTO pressure and what are the powerful instruments of the 'Darkness' can be clearly discovered in this chapter.

Given his 40 years of experience in revenue matters, he finally moves to his famous PIL in tax matters a la Azadi Bachao. He has devoted a good space to material points in Indo-Mauritius DTAA which can be a realistic guide for our policy-makers holding talks with the Mauritian Revenue authorities for amendment in the treaty. The legal materials stuffed in dozens of pages give valuable insight for our judiciary and the legal fraternity having interest in tax matters. Then he shifts to some of the gems of wisdom he has collected over 70 years in the form of never-to-forget small stories; clash of our civilisations; 'The Three Indias' etc.

Barely a few days before his book went for print, he could not resist his inquisitiveness and keenness to comment on the Anna Hazare's anti-corruption movement in the form of 'Post-Postscript' (PPS) and the Role of Parliament. Without mincing words, he has painted the intrinsic danger of the growing trend of Bharat being gobbled up by the 'India Incorporated'. The pernicious effect of corporatocracy on our constitutional democracy has been portrayed in great details by citing examples of erosion of our original value-system. In no uncertain terms, he has predicted a much tougher battle ahead for Anna as unlike Mahatma Gandhi who fought against the outsiders, and JP who battled against the Emergency, Anna has to fight against his own people masquerading as custodians of public interests.

Before I wrap up the column, I see a clear message for both the Revenue Boards and, particularly the CBDT, which has a 'technically and intellectually' much agile Members than in the past who can take a few leaves from the life of Mr Jha and practise them in the contemporaneous policy-making not only in the realm of tax treaties but the overall taxation jurisprudence. Before taking any policy decision, they must keep in mind the convenience of the taxpayers and the interests of the pro bono publico which alone represents the interests of the Exchequer.

For all those who have experienced the joy of river-rafting, this compilation promises a similar joyful 'flow', riding the currents of the real-life river of experiences. Although, for serious readers, its heavy size is a joy for many weeks but for some, it may demand an additional ounce of patience to finish it. I personally find it a bundle of precious experiences which would continue to enlighten many generations to come. It is indeed a must read for the students of history, politics and law of all age groups who can extend their support to his Charitable Trust which retains the copyright of this book. For more details TIOL Netizens may visit his website www.shivakantjha.org

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