Tackling Black Economy: SC Takes Control from Government

The Supreme Court has converted a high-powered committee of the Government of India, on the issue of black money, into an SIT under its own direction. This is an expression of no-confidence in the executive. The government’s intention in tackling either the problem of black economy or bringing back the black savings stashed abroad is suspect. According to reports, the money stashed abroad by the corrupt businessmen, politicians and others could be a staggering few trillion dollars. If retrieved, it could transform the country. The public has understood this and is agitated about it.

It is hard to estimate the sums lying abroad since there are 77 tax havens where the corrupt keep their money. While Switzerland is the best known and possibly the biggest of them, it is very likely that a lot of money from there has been moved to other tax havens of more recent origin due to the pressure being brought on it by the advanced nations. If the figure of $ 1.4 trillion dollars in Swiss accounts is correct, then the total in all tax havens would certainly be a multiple of that. However, this figure is not to be found in the source (Swiss Banker’s Association report) that is often quoted. Further, much of the money is kept in false names (benami) or via shell companies so that the real owner is hard to trace. Finally, if one is in danger of being caught one can turn into an NRI to escape the clutches.

In November last, the Global Financial Integrity Report estimated that India has lost $ 462 billion dollars since independence due to illicit flows. First, this figure is a gross under- estimate since it leaves out many of the forms of drain of savings from the economy, like hawala. Secondly, it is the ‘opportunity cost’ to the economy and not the actual sum lying abroad. It includes the interest income that potentially would have been earned on the savings but that may not be the case since these sums may have been partly consumed or moved to other forms of investments. Thus, one can only guess how much Indian savings are lying abroad in banks.

Can these savings be identified and brought back? Take the case of Bofors where illegal payments were moved through shell companies. Such money is moved through six layers so that the actual beneficiary cannot be traced unless one of the intermediaries is caught and the beans spilled. The trail disappeared after the second layer. In the Bofors case if Chaddha or Quattrocchi had squealed, the final beneficiaries could have been traced. But due to the involvement of the topmost leadership, road-blocks to investigations were put up. For instance, Solanki resigned from the Cabinet rather than reveal on whose behalf he had passed on a chit to the Swiss Minister to stall the case.

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THE government conveniently claims that it does not have specific information pertaining to individuals. It also pleads that foreign govern-ments ask for such information to reveal the details of bank accounts of individuals. The governments of tax havens depend on such opacity to carry on with their highly profitable business of being bankers of illicit funds. Some of the advanced countries have tax havens in their jurisdiction, like Britain has Jersey Island. Further, some of the biggest global banks provide conduits for the High Net Worth individuals (HNI) to transfer their illicit funds via their subsidiaries in tax havens whose task it is to facilitate these movements.

Three factors prevent the cleaning up this corrupt global financial system. First, the clout of the rich countries hosting tax havens. Secondly, the clout of the financial system which can threaten to move funds out of a country that goes against its interest. And, lastly, the reluctance of the leaders of governments (especially, in the developing world) who use these banks for siphoning out their illegal funds abroad.

The impasse can be broken if the problem is turned on its head. The black savings taken abroad are generated in India from the black economy which is now 50 per cent of the GDP (at current levels Rs 38 lakh crores generated per annum). Of this, a part is consumed (say, 50 per cent) and possibly 10 per cent (about Rs 3.8 lakh crores) is siphoned abroad. It is this sum that has been accumulating abroad. A part of this is being round-tripped back to India through the Mauritius route and as FII and FDI in the last 15 years. The facility of round-tripping was deliberately provided by the government (like an amnesty scheme) and has encouraged more black income generation in the country.

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BE that as it may, most of the black savings are circulating in the country and not abroad. The former would be five times more than the latter. Not that we should not try to recover the wealth lying abroad, but why not tap the illegal wealth lying in India itself? In a sense, while the issue of black wealth held abroad is emotive, it is also a diversionary one—focusing attention away from the main issue.

If black income generation is tackled in the country, then its outflow will decline. Further, if those generating black incomes are caught in India they could be forced to reveal what they hold abroad. Even if they have been clever and the government is not able to lay its hand on the full information, it would have caught the bulk of the money escaping national development. Further, it would be easier to pressurise Indian nationals to get information than forcing sovereign governments to yield information they are reluctant to reveal. It could obviate the need to investigate abroad or frame complicated new laws.

Is the government totally clueless about black income generation in the country? Not so. Intelligence agencies have a lot of information through their sources and by tapping phones. It has been revealed that one lakh phones are being tapped. If Radia tapes are anything to go by, there is a lot of information there. But, presently, the information is not acted upon since the entire elite class will get implicated and the system could collapse if the full facts come out. In brief, information exists in the system but it is treated as private information used for blackmail and not as public information to clean up the system

The SC is then correct in distrusting the govern-ment’s intentions with regard to tackling the black economy. For instance, the Hasan Ali and Liechtenstein disc cases started in 2007 but little was done until the public pressure mounted in 2010. In the US, prosecution in the Madoff case ($ 50 billion) or the Rajaratnam case were completed within a few months. In contrast, in the Satyam case against Raju the courts are yet to act. The courts have often taken the prosecuting agencies to task for spoiling the cases, but with little effect.

The courts are also partly responsible for the situation. Not only are corruption cases coming up against the judiciary, justice is delayed, emboldening the wrong-doers. Take the case of implementation of Section 138 regarding the bouncing of cheques or 12(6) for summary trial when there is a registered agreement. Judges hearing these cases routinely give fresh dates so that lakhs of cases are now pending, leading to delays and bringing into question the judiciary’s own accountability. But for the honest elements left and the few high-profile cases that have seen action by the courts people would have lost faith. Let us not forget that 30 million cases are pending in the courts not because of shortage of judges but because of other reasons.

In brief, creation of one SIT by the SC will not resolve the problem of black economy or bring back the black savings held abroad but it could increase deterrence. The composition of the SIT is such that it could force the intelligence agencies to use the data lying with them to act against black income generators. Most of the ruling elite could be implicated if the black economy is effectively tackled. The problem is then one of generating the political will to act but the courts cannot help in that.

[A slightly modified version appeared in The Tribune]

Prof Arun Kumar is the Chairperson, Centre for the Economic Studies and Planning, School of Social Sciences, Jawaharlal Nehru University, New Delhi. He is the author of The Black Economy in India, published by Penguin (India); he can be contacted at e-mail: arunkumar1000@hotmail.com