IN THE HON’BLE

SUPREME COURT OF INDIA

IN THE MATTER OF
RAM JETHMALANI & ORS.
(APPELLANT)
V.

UNION OF INDIA & ORS.

(RESPONDENT)

MEMORANDUM ON BEHALF OF THE APPELLANT

Advocate for the Appellant

Anuraag Mathias

Roll no. 22

014 2014 0972

Semester III (A)

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 TABLE OF CONTENTS

LIST OF ABBREVIATIONS 3

INDEX OF AUTHORITIES 4

 Statutes referred 4
 Cases referred 4
 Books referred………………………………………………………………………………4
 Dictionaries referred 4

STATEMENT OF JURISDICTION 5

STATEMENT OF FACTS 6

ISSUES RAISED 9

SUMMARY OF ARGUMENTS 10

WRITTEN PLEADINGS 12

PRAYER FOR RELIEF 17

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 LIST OF ABBREVIATIONS

& AND

A.I.R. ALL INDIA REPORTER

ART. ARTICLE

CO. COMPANY

ED. EDITION

HON’BLE HONOURABLE

INDLAW INDIAN LAW

LTD. LIMITED

NO. NUMBER

ORS. OTHERS

S.C. SUPREME COURT

S.C.C. SUPREME COURT CASES

S.C.R. SUPREME COURT REPORTS

SUPP. SUPPLEMENTARY

U.O.I. UNION OF INDIA

V. VERSUS

VOL. VOLUME

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 INDEX OF AUTHORITIES

I. STATUTES REFERRED
 The Constitution of India, 1950.

II. CASES REFERRED

 Vineet Narain and Others vs. Union of India and another, found at, AIR 1996 SC 3386.
 Kharak Singh vs. State of Uttar Pradesh, found at, AIR 1963 SC 1295.
 Rajagopal vs. State of Tamil Nadu, found at, AIR 1995 SC 1386.

III. BOOKS REFERRED

 M.P. JAIN, INDIAN CONSTITUTIONAL LAW (6TH ED., LEXIS NEXIS BUTTERWORTHS WADHWA,
2010) (2010).

IV. DICTIONARIES REFERRED

 BRYAN & GARNER, BLACK'S LAW DICTIONARY (7th Ed. Sweet & Maxwell 2008).
 P. RAMANATHA AIYER, THE LAW LEXICON (2nd Ed. Wadhwa & Company Nagpur
2002).
 TRAYNER’S LATIN MAXIMS (4th Ed. Universal Law Publishing Co.).
 WEBSTER’S NEW ENCYCLOPEDIC DICTIOANRY (Revised Edition 1995, BD&L
Publishers Inc.).

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 STATEMENT OF JURISDICTION

The appellant has approached the Honourable Supreme Court of India under Article 32 (2) of the
Constitution of India, 1950.

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 STATEMENT OF FACTS

1. There have been a slew of reports, in the media, and also in scholarly publications that
various individuals, mostly citizens, but may also include non-citizens, and other entities
with presence in India, have generated, and secreted away large sums of monies, through
their activities in India or relating to India, in various foreign banks, especially in tax
havens, and jurisdictions that have strong secrecy laws with respect to the contents of bank
accounts and the identities of individuals holding such accounts. Most of such monies are
unaccounted, and in all probability have been generated through unlawful activities,
whether in India or outside India, but relating to India. Further, a large part of such monies
may have been generated within India, and have been taken away from India, breaking
various laws, including but not limited to evasion of taxes.
2. Specifically, a person named Hassan Ali Khan was served with an income tax demand for
Rs. 40,000.00 Crores (Rupees Forty Thousand Crores), and that the Kashinath Tapuria,
and his wife Chandrika Tapuria, were served an income tax demand notice of Rs. 20,580.00
Crores (Rupees Twenty Thousand and Five Hundred and Eighty Crores). The Enforcement
Directorate, in 2007, disclosed that Hassan Ali Khan had "dealings amounting to 1.6 billion
US dollars" in the period 2001-2005. In January 2007, upon raiding Hassan Ali's residence
in Pune, certain documents and evidence had been discovered regarding deposits of 8.04
billion dollars with UBS bank in Zurich. The Union of India had obtained knowledge,
documents and information that indicated possible connections between Hassan Ali Khan,
and his alleged co-conspirators and known international arms dealers. In 2007, the Reserve
Bank of India had obtained some knowledge of the dubious character of UBS Security
India Private Limited, a branch of UBS, and consequently stopped this bank from
extending its business in India by refusing to approve its takeover of Standard Chartered
Mutual Funds business in India. The SEBI had alleged that UBS played a role in the stock
market crash of 2004. The said UBS Bank had applied for a retail banking license in India,
which was approved in principle by RBI initially. In 2008, this license was withheld on the
ground that "investigation of its unsavoury role in the Hassan Ali Khan case was pending

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 investigation in the Enforcement Directorate." However, the RBI reversed its decision in
2009, and no good reasons seem to be forthcoming for the reversal of the decision of 2008.
3. Such evidence was secured nearly four and half years ago. The investigation has
completely stalled, in as much as custodial interrogation of Hassan Ali Khan had not even
been sought for, even though he was very much resident in India. Further, it also appears
that even though his passport had been impounded, he was able to secure another passport
from the RPO in Patna, possibly with the help or aid of a politician. Also, the Union of
India, on account of its more recent efforts to conduct the investigation with seriousness,
has secured of additional information, and leads, which could aid in further investigation.
For instance, during the continuing interrogation of Hassan Ali Khan and the Tapurias,
undertaken only very recently, many names of important persons, including leaders of
some corporate giants, politically powerful people, and international arms dealers have
cropped up. So far, no significant attempt has been made to investigate and verify the same.
4. A High Level Committee (HLC) was formed by the Union of India to bring back the
monies stored in foreign banks and to take charge of and direct the entire investigation, and
subsequently, the prosecution of Hassan Ali Khan and the Tapurias. This HLC has, as
members: (i) Secretary, Department of Revenue, as the Chairman; (ii) Deputy Governor,
Reserve Bank of India; (iii) Director (IB); (iv) Director, Enforcement; (v) Director, CBI;
(vi) Chairman, CBDT; (vii) DG, Narcotics Control Bureau; (vii) DG, Revenue
Intelligence; (ix) Director, Financial Intelligence Unit; and (x) JS (FT & TR-I), CBDT.
5. According to the Union of India the HLC was formed in order to take charge of and direct
the entire investigation, and subsequently, the prosecution. In the meanwhile a charge sheet
has been filed against Hassan Ali Khan. However, the charge-sheet had not been given
even for the perusal of the HLC, let alone securing its inputs, guidance and direction.
6. It is generally acknowledged that Liechtenstein is a tax haven. A former employee of a
bank or banks in Liechtenstein secured the names of some 1400 bank account holders,
along with the particulars of such accounts, and offered the information to various entities.
The same was secured by the Federal Republic of Germany ("Germany"), which in turn,
apart from initiating tax proceedings against some 600 individuals, also offered the
information regarding nationals and citizens of other countries to such countries. Even
though the Union of India was informed about the presence of the names of a large number

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 of Indian citizens in the list of names revealed by the former bank employee, the Union of
India never made a serious attempt to secure such information and proceed to investigate
such individuals.
7. The Respondent secured the names of individuals with bank accounts in banks in
Liechtenstein, and other details with respect to such bank accounts, pursuant to an
agreement of India with Germany for avoidance of double taxation and prevention of fiscal
evasion. Even though the petitioners had sought the information under the Right to
Information Act (2005), the Respondents had not revealed the names nor divulged the
relevant documents.

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 ISSUES RAISED

I. Whether the appointment of a Special Investigation Team (SIT) is necessary?

II. Whether the respondent must disclose certain documents, which contain bank account
details of individuals, to the petitioners, which it has relied upon in its response?

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 SUMMARY OF ARGUMENTS

1. The appointment of the Special Investigation Team (SIT) is necessary.

The grave delay in the investigation of the Hassan Ali Khan and Tapurias case points to a
vital fact in this argument – that, the respondents had not been able to effectively carry out
their duty to provide right to equality to every citizen under Article 14. The Union of India,
as shown in the statement of facts, had been unable to make any progress in this
investigation, so much so that the investigation had altogether stalled. Apart from this, the
Union of India has also been largely inactive in trying to bring back the illegitimate monies
stored in foreign lands. The formation of the High Level Committee was ineffective and
just a pretentious manoeuvre from the Union of India because, as shown in the statement
of facts, the HLC had not even been notified that a charge-sheet had been filed against
Hassan Ali Khan, even though the HLC was formed to take “direction and charge” of the
investigation. Therefore, as both the Union of India and the HLC have failed to effectively
investigate the said case, and to bring back the illegitimate monies stashed abroad, the
appointment of the Special Investigation Team is necessary.

2. The respondent must disclose the certain documents to the petitioners.

The respondents are in possession of certain documents which contain the bank details of
certain individuals who hold accounts in the Principality of Liechtenstein. This information
was acquired by the respondent from Germany. It would be prudent to note that the
petitioners only want access to the said document so as to properly present the case in this
Court, and not for public disclosure. In order that the right guaranteed by Clause (1) of
Article 32 be meaningful, and particularly because petitions filed under that clause seek
the protection of fundamental rights, it is imperative that in such proceedings the
Petitioners are not denied the information necessary for them to properly articulate the case
and be heard, especially where such information is in the possession of the State. To deny
access to such information, without citing any constitutional principle or enumerated
grounds of constitutional prohibition, would be to thwart the right granted by Clause (1) of
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Article 32. Further, by history and tradition of common law, in judicial proceedings, both
parties bear the responsibility of placing all the relevant information, analyses, and facts
before this Court as completely as possible. Moreover, the right to privacy of the concerned
individuals and that of the respondent does not supersede the right to freedom of speech
and expression of the petitioner. Therefore, the respondents in the instant matter must
disclose the documents in question to the petitioners.

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 WRITTEN PLEADINGS

1. The appointment of the Special Investigation Team (SIT) is necessary.

Throughout the fact sheet, it has been evident that the respondent has been grossly
inefficient and inactive so as to provide a solution to the problem of the hordes of
illegitimate monies stashed abroad. Furthermore, in the case involving Hassan Ali Khan
and the Tapurias, the respondent has been surprisingly unwilling to initiate any
investigation, and consequently, prosecution.

There have been a slew of reports, in the media, and also in scholarly publications that
various individuals, mostly citizens, but may also include non-citizens, and other entities
with presence in India, have generated, and secreted away large sums of monies, through
their activities in India or relating to India, in various foreign banks, especially in tax
havens, and jurisdictions that have strong secrecy laws with respect to the contents of bank
accounts and the identities of individuals holding such accounts. It can be contended that
the sheer volume of such monies stashed outside the nation’s borders indicate the lack of
control of the concerned authorities over illegal activities such as money laundering, tax
evasion, etc. Furthermore, these monies, by the virtue of them being illegitimate, give
support to unlawful networks of international finance.

Apart from this, the bank that holds around 8.04 billion dollars for Hassan Ali Khan, UBS
Bank, has been known for shady deals in the past. According to the statement of facts, the
Reserve Bank of India denied UBS bank a license for retail banking in India due to its
unsavoury involvement in the Hassan Ali Khan case pending investigation by the
Enforcement Directorate. However, this denial was seemingly overturned by the RBI an
year later without any apparent reason. This puts light on suspicions that Hassan Ali Khan
has connections with high places, because a reversal of decision like this in the RBI can
only take place due to powerful influence. This incident, however, was also failed to be
investigated by the Union of India and the High Level Committee formed specifically for
this task.

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 All of the above factors contribute in giving a certain minute section of the society an
unlawful and unfair advantage over the rest of the people, violating their right to equality,
which is a fundamental right, and is given under Article 14 of the Constitution of India.

Article 14 of the Constitution of India is as follows:

“The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India.”

According to M.P. Jain1, the article contains two concepts, viz., ‘equality before the law’
and ‘equal protection of laws’. The first concept is a negative concept which ensures that
there exists no special privilege in favour of any one. The second concept is a positive
concept which implies that among equals, the law should be equal, that the like should be
treated alike.

The concept which affects the instant matter is the first one, that is, the negative concept of
‘equality before the law’. It ensures that there is no special privilege in favour of anyone,
that all are equally subject to the ordinary law of the land and that no person, whatever be
his rank or condition, is above the law. This incorporates in itself the basic tenet of the
doctrine of rule of law which this Court in Vineet Narain and Others vs. Union of India
and another2 stated to be, “Be you ever so high, the law is above you.”

Therefore, the unusual advantage being given to Hasan Ali Khan and the Tapurias violates
the fundamental right to equality of the other people of India, which has been given to them
under Article 14 of the Indian Constitution. Furthermore, it stands against the basic tenet
of the doctrine of rule of law as Hassan Ali Khan and the Tapurias are being allowed to
operate above the law without proper sanction. This should not have been the case, and the
Union of India should have investigated and prosecuted the said people. However, this has
not been. Moreover, apart from this case, as per multiple reports and expert opinions,
Indians hold a major portion of the monies stashed in foreign countries which do not ask a
lot of questions. Therefore, this specific case is not a singularity, and there exist thousands
of such cases. Hence, it has been established that the respondent and the HLC have been

1
Jain M. P., Indian Constitutional Law, 930 (6th Ed., 2012)
2
AIR 1996 SC 3386

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 insufficient to curb such cases and deal with then effectively and efficiently without being
swayed by powerful people in high positions. In light of this, the existence of a Special
Investigation Team (SIT), being presided over the one or two Supreme Court judges along
with representation from various concerned agencies of the Union of India, is extremely
necessary.

2. The respondent must disclose the certain documents to the petitioners.

As is given in the statement of facts, the respondent holds information that it acquired from
Germany, about the bank details of certain individuals who hold huge amounts of monies
in the Principality of Liechtenstein. This information had been used by the respondent in
its response. Therefore, it is being contended by the petitioners that the said documents
containing such information be disclosed to them so as to enable them to better represent
themselves in the instant matter.

Article 32, clause (1) states that:

“The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.”

In order that the right guaranteed by Clause (1) of Article 32 be meaningful, and
particularly because petitions filed under that clause seek the protection of fundamental
rights, it is imperative that in such proceedings the Petitioners are not denied the
information necessary for them to properly articulate the case and be heard, especially
where such information is in the possession of the State. To deny access to such
information, without citing any constitutional principle or enumerated grounds of
constitutional prohibition, would be to thwart the right granted by Clause (1) of Article 32.

Further, in as much as, by history and tradition of common law, judicial proceedings are
substantively, though not necessarily fully, adversarial, both parties bear the responsibility
of placing all the relevant information, analyses, and facts before this Court as completely
as possible. In most situations, it is the State which may have more comprehensive
information that is relevant to the matters at hand in such proceedings. If the state refuses
to provide the relevant information, it would leave the petitioner and the judiciary
handicapped.

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 Moreover, there is a special relationship between Clause (1) of Article 32 and Sub-clause
(a) of Clause (1) of Article 19, which guarantees citizens the freedom of speech and
expression. The very genesis, and the normative desirability of such a freedom, lies in
historical experiences of the entire humanity. Unless made accountable, the State would
turn tyrannical. The very promise, and existence, of a constitutional democracy rests
substantially on such proceedings. Therefore, withholding of information from the
petitioners, by the State, thereby constrains their freedom of speech and expression.

It must be noted that the petitioners only require the documents and the information
received from Germany for their use in helping them improve their representation in the
instant matter. Furthermore, the Special Investigation Team (SIT) formed should also be
given the documents and the information contained therein so as to enable it to direct proper
investigation in the cases where suspicions arise. There is no question of public disclosure
of such information, and thus the individuals’ right to privacy is maintained to some extent.

Even if the right to privacy of the said individuals is violated to some extent, it is contended
that the fundamental right to freedom of speech and expression under Article 19 supersedes
the right to privacy which is not absolute. The Supreme Court, in Kharak Singh vs. State
of Uttar Pradesh3, held that the constitution does not provide any guarantee of the right to
privacy. However, with the passage of time, the Court in subsequent matters allowed a
limited guarantee to the right to privacy enshrined with Article 21 of the Constitution.
Therefore, in Rajagopal vs. State of Tamil Nadu4, the Supreme Court laid down certain
provisions5 defining the extent of constitutional guarantee of the right to privacy. These
provisions stated that the right to privacy is implicit in the right to life and liberty
guaranteed by Article 21. However, the provisions also mention an exception to this right
to privacy. If a person voluntarily thrusts himself into controversy or voluntarily invites or
raises controversy, his right to privacy would not supersede the right to freedom of speech
and expression of others. It can be safely said that the individuals in question, whose
information and bank details are being requested, have voluntarily invited controversy. It
is only natural that, if a person holds vast amounts of monies in foreign banks, especially

3
AIR 1963 SC 1295
4
AIR 1995 SC 1386
5
Jain M. P., Indian Constitutional Law, 1238 (6th Ed., 2012)

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in a principality such as Liechtenstein which is considered as a tax haven, without any
source of income justifying his ownership of such vast amount of monies, suspicions will
be formed, and controversy will be raised. Thus, the said individuals’ right to privacy, in
the instant, matter is superseded by the right to freedom of speech and expression of the
petitioners.

Moreover, another exception lies in the provisions, but with regard to public officials. In
the case of public officials, the right to privacy is simply not available with respect to their
acts and conduct relevant to the discharge of their official duties.

The Union of India’s office bearers are public officials. Also, the Union of India has a duty
to provide the right to equality and the right to freedom of speech and expression to all its
citizens. Also, investigation of unlawful activities and activities related to illegitimate
monies is also a duty of the Union of India. Therefore, it is contended that the Union of
India falls in the exception to the provisions provided by the Supreme Court in the
Rajagopal case, and thus does not enjoy the right to privacy in such matters.

Hence, as it has been established that the non-disclosure of the said documents violates the
fundamental right to freedom of speech and expression provided under Article 19 of the
Indian Constitution, and that the right to privacy of the concerned individuals, as well as
that of the Union of India, does not supersede the right to freedom of speech and expression
of the petitioners, it is contended that the respondents must disclose the said documents to
the petitioners and, if required, to the Special Investigation Team.

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 PRAYER FOR RELIEF

In the light of facts stated, arguments advanced, issues raised & authorities cited, it is humbly
prayed by the counsel on behalf of the appellant to adjudge and declare that
“The Special Investigation Team be formed for the said purposes, and the respondent disclose the
documents in question.”
& pass any other order that it may deem fit, in favour of the appellant in the ends of Justice, Equity
& Good Conscience. And for this act of kindness the counsel as in duty bound shall forever pray.
All of which is humbly submitted.

DATE: 20th August 2015 ALL OF WHICH IS REPECTFULLY SUBMITTED

PLACE: New Delhi

COUNSEL FOR APPELLANT

ANURAAG MATHIAS

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