Shivakantjha.org - A Critique on the Misuse of the Indo-Mauritius Double Taxation Convention
A Critique on the Misuse of the Indo-Mauritius Double Taxation
My Quest through the Fog; & My Reflections on the Cavalcades of Events
[Summary of Events in the Courts]
[Note: As this was a PIL of great national importance, I consider it my duty
to render an account to our citizenry of what this humble petitioner did on their
behalf. If anybody thinks I went wrong somewhere, he will be under his duty to
the nation to correct me, and also to assist the Court to decide the issues in
conformity with the constitutional parameters pro bono publico. If I die
before I reach a cul-de-sac, I authorize any public-spirited citizen to
act, act, and act in the light of his prudence keeping in mind what Krishna said:
karmany eva ‘dhikaras te, ma phalesu kadacana. I pray that my faults, which
will be surely many, be excused, and the cause undertaken by me advanced. Every
citizen is authorized to use the materials in the folder on PIL in my website
in promoting the cause of our Republic; but I expect that this website would be
acknowledged wherever materials herefrom are used]
An Apology at the Outset
Whilst concluding my Writ
Petition 334/2005 [Shiva Kant Jha v. Union of India
& Ors ], I had tendered my apology in these words:
"521.That this Petitioner begs to be pardoned for presenting the issues involved
in this Writ Petition in a very wide sweep on a very broad canvas. This was designed
to bring to the judicial consciousness the fact that the world into which our
destiny has hurled us, is not the conventional world with which it is most often
familiar. He felt that through the conventional legalese and governmentese he
could not have brought out his case in the round. A most characteristic feature
of the global ethos is the studied strategy of the experts, the financial press,
the lobbyists, the persuaders et al to mask the existence of the suffering millions,
to mask the tainted wealth of all sorts of persons, to mask the financial transactions,
to mask the real operators in corporate capsules, to mask the masqueraders raiding
treaty benefits, to mask the terrorists so that they achieve their ends, to mask
the sold souls holding high political offices……This Petitioner feels, and his
impression is proved to the hilt in course of his research which he has made in
conducting this case, that we are witnessing an ersatz version of John Milton’s Comus. A Masque presented at Ludlow Castle. The
prime mover of this Writ Petition is to assert before this Hon’ble Court
that the Rule of Law, rather than the Rule of Comus be assured  . This Petitioner in his most humble way, absolutely
without any personal or professional interest, has tried to bring to this
Court’s certain gross lapses in our public life believing in the ever-inspiring
words of the Bhagavadgita:
Atmaiva hy atmano bandhur Atmaiva ripur atmanah. .."
An apology is also tendered to all those who feel, perish the thought, hurt
by any expression used in the Writ Petition, or other documents. Nothing is intended
to slight any body. It is felt that reason without emotion is inert. Emotional
involvement in a public cause is not unknown to acquire often the wings which
had made Lloyd Garrison, who had espoused the anti-slavery cause, say in his paper
"I will be as harsh as truth, and as uncompromising as justice. On this subject
I do not wish to think, or speak, or write with moderation. No! No! tell a man
whose house on fire to give a moderate alarm; tell him to moderately rescue his
wife from the bands of a ravisher; tell the mother to gradually extricate her
babe from the fire into which he has fallen ---but urge me not to use moderation
in a cause like the present. I am earnest –I will not equivocate --I
will not excuse ---I will not retreat a single inch ---and I will be heard."
In the mid 2000 two Writ Petitions were filed before the Delhi High Court,
by Azadi Bachao Andolan, and the other, by one Dr. B. L Wadhera,
Advocate. These writ petitions had challenged the Circular 789 of 2000 issued
by the Central Board of Direct Taxes which created an opaque system under
which the authorities under the Income-tax Act, 1961, were bidden not to subject
to any inquiry whosoever produced a Certificate of Residence from the authorities
of the Mauritius Government. It was also directed that mere production of
the certificates were enough to prove that the entities which produced them
were the beneficial income. Fiction over fiction was dexterously enacted.This
facilitated the misuse of the Indo-Mauritius Double Taxation Convention by
the residents of the third States to masquerade as the residents of Mauritius
to cause wrongful gains to themselves, and wrongful loss to our Revenue. Besides,
the lack of transparency and the opaque system facilitated the loot of our
country by the money-launderers, fraudsters, crooks, narco-criminals, corrupt
politicians and bureaucrats, and the terrorists of all sorts. The good efforts
to investigate such cases by the tax authorities at Mumbai were frustrated
by the said Circular widely believed, on good grounds, to have been issued
under the benediction of the axis of evil at the high echelons of power, to
which once upon a time Justice Shah had referred in his Report on our infamous
Emergency. Hence some public-spirited persons challenged that noxious Circular
by preferring the said Writ Petitions to protect our country from this chronic
and continuing entente cordiale of Collusion and Fraud.
One afternoon, whilst sipping tea underneath a sprawling tree in the Court
campus, Dr Wadhera requested me to intervene in the matter to assist the Court.
I had no desire to get involved in this strenuous pursuit, so I politely declined.
But his request lingered in my mind, stoked off and on by the news paper reports
of the massive misuse of the tax treaties
But I intervened, but not as an Intervenor but as a Writ Petitioner. I felt
that the limits of an intervention petition would not help me in developing the
matter before the Court. Only as a Writ Petitioner under Article 226 I could be
comfortable. Besides, I felt that my Writ Petition ought to be framed more comprehensive
by raising more fundamental issues.
Why I intervened
I summarized the whys and the wherefores of my odyssey in the court in the
Introduction to my book Judicial Role in the Globalised Economy published 
in 2005 under a sub-heading "Genesis & Context":
"For some personal reasons I visited Mumbai sometime in 2000. I, along with
my wife, went to a Shiva temple on the Marine Drive. It was just a chance that
there I met some senior officers of the Income-tax Department whom I had known
for years. They were apparently distraught, something was wrenching their mind.
I had no wish to play God’s spy, yet I asked them the reasons which had led
them to that pass. They told me the whole story pertaining to the abuse of
the Indo-Mauritius Double Taxation Avoidance Agreement. They discharged their
duty under the Income-tax Act 1961, and were quasi-judicial officers. Their
orders displeased the corporate imperium who procured support of some
powerful politician. Instead of getting a reward for good work they were
threatened with punitive actions. I assuaged them that in our country they
were not the first to receive displeasure as the wages for good work. But,
I felt, I sounded a counterfeit coin in advising them to take things in their
stride. But the burden lingered in my mind. It was just a chance that a rickshaw
puller told me the story of his sufferings wrought by the fraud and collusion
of his friend. I found in it something which ‘brought
out a noble knight’ in me.
I seek the reader’s indulgence to read the story of the
two rickshaw pullers as the story inspired me to launch a PIL before the
Delhi High Court. And without the experience of this PIL I might not have
reasons to write this book. I quote what I had written in Personal Journal:
"Two rickshaw pullers came from Bihar and settled down in the J.J Colony (Jhuggi
Jhopari Colony) in the outskirts of New Delhi. By greasing the palms of those
who mattered they got two small pieces of plots of lands. As they were under obligations
to maintain their families they had brought them also. To economize on their resources
and to reduce the drudgery of the domestic chores they entered into a gentleman’s
agreement that whilst lunch is prepared in the house of one, the dinner be in
the house of the other. They were good friends and had no reason to doubt good
faith of each other. The arrangement worked for sometime. It could not work for
all times as one of the two contracting parties developed greed and wanted to
take advantage of what was not due under the agreement. He racked his brains for
some scheme. He got one, which with Lucifer’s logic he pursued for his gains.
He not only sent his wife and two children to eat in the house of the other but
also sent children of some other persons (for consideration, of course) to eat
food as the beneficiaries of the agreement. When questioned, he argued that he
was competent to adopt as many children he wished. To make his point solid he
would invoke custom of his community. As if it was not itself too much, he sent
several ladies whom he described as his wives. They all had, in a sense, certificates
evidencing relationship, which entitled them to the benefits under the pact. But
this state of affairs could not last long .His friend rightly felt enough was
enough. His domestic economy had already crashed. The wreck could have been avoided
if he would have listened to his wife’s advice to end the gentleman’s agreement
at the earliest. The original meeting of minds had lost significance. Fraud was
evidently at work. After narrating this story I asked my wife: " Well dear, was
it fair and just for the first rickshaw puller to do what he did?" My wife instantly
replied: "It was unfair."
I narrated this story to my wife who always obeyed law as she never knew
anything about it. I asked her opinion on the propriety of the conduct of
the rickshaw puller who swindled his friend. Her verdict appeared to me impeccably
right. My wife was not proficient at law otherwise she would have dismissed
my story with words: " I don’t believe there’s an atom of meaning in it". I do not want to be
apologetic for testing my legal conclusion in the light of the verdict by a housewife.
The most celebrated judgment for all times known to me had been pronounced by
Gandhari on her son’s prayer made by her son while conducting the Mahabharat
War. Gandhari said: "Yato Dharmahstato Jayah (Where dharma is victory is surely
there only). This verdict is inscribed on the emblem of the Supreme
Court of India. I call the rickshaw puller’s Case under a cause-title A Rickshaw
Puller v. A Rickshaw puller. It can constitute a trilogy with the two other widely known cases (Shylock
v. Antonio in Shakespeare’s The Merchant of Venice, and Jarndyce
v Jarndycein Charles Dickens’ novel Bleak House ) which do not figure in
the law reports. They are often referred but never cited."
This led me to decide to intervene in the matter by filing a very comprehensive
Wri Petition before the High Court (CW NO. 5646 of 2000 ) .
Chronology of Events
1. A Writ Petition (CW NO. 5646 of 2000 ) was filed before the Hon’ble Delhi
High Court in which the Petitioner brought certain matters, revealing remissness
on the part of the Central Government and the Central Board of Direct Taxes, to
the attention of the Hon’ble High Court to vindicate the rule of law and get the
unlawful conduct stopped. The PIL Petition was directed :
‘(A) Against the Circular 789 issued by the Central Board
of Direct Taxes which:
(i) promoted "treaty shopping", a harmful tax practice in utter breach
of the scope of the Indo-Mauritius Double Taxation Avoidance Convention
thereby causing wrongful loss to the Public Revenue of our Country and
wrongful gain to the third country interlopers masquerading as the residents
of Mauritius :
(ii) was ultravires section 119 of the Income Tax, and Articles 14 & 265
of the Constitution.
(iii) was advancing purpose extrinsic to the Income Tax Act thereby resorting
to a mala fide exercise of power as the exercise of power transgresses
the permitted province of operation under statute:
(iv) was an assortment of unsound legal propositions stated without legal authority
and in utter breach of public policy causing much mischief against public interest
(B) And against the Central Government on the ground that it acted ultra
vires Section 90 of the Income Tax act 1961 and abdicated its public
duties under the said Act and the Central Boards of Revenue Act 1963 and
in violation of settled principles of Public Policy. ‘
2. The matter was admitted by the Hon’ble Court and was ordered to be listed
and Part – II of the Cause List for hearing on January 31, 2001. The High
Court (coram: Hon’ble Justice S.B. Sinha, Chief Justice, and Hon’ble Mr. Justice
A.K. Sikri ) decided the case per its Judgment dated 31st May 2002.
Judgment of the High Court.
[see my article "THE
JUDGEMENT: What it means (In the case of Shiva Kant Jha v. Union of India
& Ors (C W P NO. 5646 of 2000 delivered by the High Court of Delhi
at New Delhi on May 31, 2002 at 4.25 P.M) .]
3. The Union of India filed a Special Leave to Appeal under Art. 136 of the
Constitution of India before the Supreme Court under the cause-title UOI &Anr
v. Azadi Bachao Andolan& Anr. whereon the Court directed, on Nov, 18,
2002, the Respondents to file their Counter-Affidavits within 3 weeks. A comprehensive
Counter-Affidavit was filed within the prescribed time.
4. Co- Appellant emerges from the fog.
Shri Arun Jaitley, Senior Advocate, appeared before the Court praying for leave
to allow Global Business Institute Limited Jurist Consult Chambers of Mauritius
to become a co-Appellant. The Court granted his Prayer. Shri Jaitley did not turn
up in this case thereafter. Shri Harish Salve, Sr. Advocate, who had represented
the Union of India before the Delhi High Court in his capacity as the Solicitor-General,
appeared regularly for that Mauritius company, and argued vehemently on all the
points in the Appellants’ position. I questioned his professional propriety, but
all in vain.
5.That per Judgment dated October 7, 2003 the Hon’ble Supreme Court (Coram:
Hon’ble Justice Ruma Pal and Hon’ble Justice B.N. Srikrishna, JJ. ) allowed the
Civil Appeal Nos 8161-62 of 2003, by their order dated 07/10/2003, arising out
of SLP ( C ) Nos. 20192-20193 of 2002, having the effect of setting aside the
judgment and order of the Hon’ble Delhi High Court. In the penultimate para of
its Judgment the Court ordered:
"In the result, we are of the view that Delhi High Court erred on all counts
in quashing the impugned circular. The judgment under appeal is set aside and
it is held and declared that Circular No. 789 dated April 13, 2000 ( 243
ITR (St.) 57), is valid and efficacious."
6. Aggrieved by the decision of the Supreme Court, a Review Petition was filed
under Art 137 of the Constitution of India praying that, on consideration of all
the 54 Grounds mentioned in the Review Petition, the Court be graciously pleased
to "review, recall, and redo the Judgment and Order." A prayer was also made for
an oral hearing. But the Court dismissed the Review Petition by circulation in
the Chamber(Coram: Hon’ble Justice Ruma Pal and Hon’ble Justice B.N. Srikrishna,
JJ. ) on January 29, 2004, and refused to grant a hearing in the open court.
7.The Petitioner presented before the Court a Curative Petition, invoking this
Hon’ble Court’s jurisdiction under Articles 137, and 142 of the Constitution of
India, and its inherent powers, to reconsider, under the aspects of law and justice,
the Judgment, dated October 7, 2003, of the Division Bench of the Court. The Curative
Petition was rejected.
Writ Petition (c) NO.334 of 2005 had been directed
against the said decision of the Division Bench of this Hon’ble Court [Coram:
Justice Ruma Pal and B. N. Srikrishna] in Azadi Bachao Andolan [(2003)
263 ITR 706] reversing the Hon’ble Delhi High Court’s decision (Coram: Justice
S.B. Sinha, Chief Justice; and Justice A.K. Sikri] in Shiva Kant Jha [(2002)
256 ITR 536].
9. That the issue which came up on Nov. 27, 2007, was limited
to the count, and made specific to the context emerging from this Hon’ble Court’s
order dated 25/08/2006 [coram: Hon'ble the Chief Justice Y.K. Sabharwal;
Hon'ble Mr. Justice C.K. Thakker; Hon'ble Mr. Justice R.V. Raveendran]. The
Court felt that in "….
view of the law laid down by the Constitution Bench of this Court in Rupa Ashok
Hurra vs. Ashok Hurra & Anr. (2002 (4) S.C.C.388, the petition under Article
32 of the Constitution of India is not maintainable." But the Court appointed
Mr. Gopal Subramanian, learned Additional Solicitor General, and Mr. Soli J.
Sorabjee, learned senior advocate, to assist the Court on the point in issue
from a prima facie perspective at this stage." 10. The aforementioned issue was
considered by the Court on Nov. 27 and 28 of 2007. Shri Gopal Subramanian, learned
Additional Solicitor General, addressed the Court. Shri Sorabji was not present.
Per Judgment/order dated Nov. 28, 2007, the Court (Coram: coram Hon’ble Chief
Justice, Hon’ble Mr. Justice R.V. Raveendran, and Hon’ble Mr. Justice J.M. Panchal)
was pleased to dispose of the Writ Petition (c) 334 of 2005 by dismissing it
for reasons set forth in its Judgment.
11. As on a careful reading of the Order dated Nov. 28, 2007 passed by the
Division Bench of Three Hon’ble Judges, the Petitioner was driven to a view that
serious and manifest errors had crept in the said order of the Court causing a
grave miscarriage of justice in disposing of this PIL of greatest constitutional
importance. Hence, he moved, on Jan. 3, 2008, a Review Petition against the Court’s
said order of Nov. 28, 2007 on Jan. 3, 2008.
ACT I : Scene I [before the Delhi High Court]
A Writ Petition was filed by Shiva kant Jha before the Delhi
High Court with Prayers
that the High Court be graciously pleased to :
‘(a) issue such appropriate direction /order /writ as the Court deem proper,
under the circumstances brought to the knowledge of the Hon’ble Court, to
the Central Government to initiate a process whereby the terms of the Indo-Mauritius
Double Taxation Avoidance Agreement are revised, modified, or terminated
and \or effective steps taken by the High Contracting Parties so that the
NRIs and FIIs and such other interlopers do not maraud the resources of the
(b) declare and delimit the powers of the Central Government under section
90 of the Income tax Act, 1961 in the matter of entering into an agreement with
the Government of any country outside India;
(c) declare and delimit the powers of the Central Board of Direct Taxes in
the matter of the issuance of instructions through circulars to the statutory
authorities under the Income tax Act, specially through such circulars which are
beneficial to certain individual taxpayers but injurious to Public Interest;
(d) declare the illegality of Circular No. 789 of April 13,2000 issued by
the Central Board of Direct Taxes and to quash it as a matter of consequence ;
(e) issue mandamus so that the respondents discharge their statutory duties
of conducting investigation and collection of tax as per law ;
(f) issue appropriate direction / order or writ of the
nature of mandamus, as the Court deem fit, so that all remedial actions to
undo the effects of the acts done to the prejudice of Revenue in pursuance
of Circular No. 789 are taken by the authorities under the Income tax Act,
The matter came up for hearing on January, 31, 2001 but on that date the item
did not reach the point to be called for hearing. It happened so again on February
1, and on February 2, and yet again on February 5, 2001. The matter was heard
over several days, but the final hearing was done on 5-3-2002, when the matter
was heard by the Bench of Hon’ble Chief Justice S.B. Sinha and Justice A.K.
Sikri. The Judgment was delivered on 31st May 2002 under the cause-title Shri
Shiva Kant Jha v. Union of India & Ors [(2002) 256 ITR 536]. In the final
operative para of its Judgment the High Court observed:
"For the reasons aforementioned this writ petition is allowed and the impugned
circular is quashed. Consequently if the assessing authorities intend to
reopen any proceedings they would be entitle to take recourse to such proceedings
as are open to them in law. The petitioners are also entitled to costs which
is assessed at Rs. 10,000/="
This Judgment was followed in CWP.2802/2000, as in this Writ Petition too
the Petitioner had questioned the validity of the CBDT Circular No. 789 of April
13, 2000. Both the Writ Petitions were heard together. As the former Writ Petition
was more comprehensive, the High Court passed its Judgment on that Writ Petition.
The High Court followed this decision whilst disposing of the other Writ Petition
under the cause title UOI vs Azadi Bachao Andolan [(2003) 263 ITR 706].
Shiva Kant Jha wrote, immediately after the Judgment of the High Court, an article
explaining what was held by the Court. This article was entitled as "The
Judgment: What it means (In
the case of Shiva Kant Jha v. Union of India & Ors) wherein he
examined, in brief, what the High Court had decided.
The Union of India was represented by Mr. Harish Salve, the Solicitor General
of India with Mr. Sanjiv Khanna (now Hon’ble Judge of the Delhi High Court); whilst
Azadi Bachao Andolan was represented by Mr. Prashant Bhushan with Mr.Narendera
Verma and Mr.Vishal Gupta, Advocates. Shiva Kant Jha argued his case himself with
the help of his daughter Mrs. Anju Jha Choudhary, Advocate.
On March 4, 2002, Sri H. Salve, the then Solicitor General of India, made certain
points which deserve some attention as they articulate the position of the Government
of India on certain points of great public importance in our Democratic Republic.
Such points included the following:
1. that the treaties express political arrangements made by the contracting
States, and bear the facets of International diplomacy.
2. that the Government of India might have considered the huge number of Indian
population in Mauritius and might have taken into account the future support of
that country in the event of India staking its claim for a permanent seat in the
Security Council of the UN.
3. that the treaties are framed under wide powers. Sections 90 of the IT Act
which effectuates the wide Constitutional powers of entering into treaties. Treaties
are a mode of sharing of power.
4. that as the Indian citizens are at liberty to have their commercial under
takings for earning income in the backward areas of Madhya Pradesh or UP or anywhere
else in the country where they can derive more advantages, in the same way, persons
from other countries can operate from Mauritius through their subsidiaries for
taking advantage of Indo-Mauritius DTAC.
5. that as the grant of citizenship a persons in India cannot be questioned
by someone in Mauritius so the grant of Certificate of Incorporation in Mauritius
cannot be questioned in India.
6. that the Finance Minister of Mauritius had in the course of his correspondence
protested the action of the Indian Income tax Authorities questioning the authenticity
of the residence of these companies in Mauritius.
7. that it is on account of the treaty of the type of Indo-Mauritius DTAC that
our foreign reserve has crossed $ 50 billions.
The High Court rejected all the above pleas in words clear and cogent.
Some extracts from the Judgment would make this point clear:
(i) "By reason of the circular a power is conferred to lay down a law which
is not contemplated under the Act or for the purpose of political expediency.
The same cannot be ultra vires. What prompted the Govt. of India and the
Govt. of Mauritius in the said treaty is not known. Submission of the Solicitor
General that this treaty must have been entered into looking to the large population
of Indians in the said country and also for future support of the said country
might have been taken into consideration. Any other purpose would not only be
ultra vires the same would be contrary to the purpose circular had been
issued bonafide, the question which has to be posed and answered by the court
is as to whether the same is consonance with the provisions of Section 90 of the
Income-tax Act or is in public interest. The validity of the impugned circular
must be judged having regard to the limitations contained in Section 90 of the
Act and not otherwise. It would not be correct to contend that section 90 of the
Income tax Act confers a very wide power in terms whereof conferment of an unguided
or unbridled power is not contemplated. The very purpose of entering into such
a treaty is avoidance of double taxation…… The bilateral treaty can be entered
into by two independent governments but bilateral treaties for political expediency
and bilateral treaty in terms of a statute stand on different footing. A treaty
which is entered into in terms of Article 73 of the Constitution of India the
political expediency may have a role to play but not when the same is done under
a statutory provisions. Powers, functions and duties of the adjudicating authority
cannot be taken away under a treaty for loss by a circular. By reason of an international
treaty, a Government, les than CBDT can be allowed to lay down a procedure or
evidentiary value of a document which would be dehors the provisions of Indian
Income-tax Act. A statutory authority, it is well known must act within the four
corners of the stature. It must follows the procedure laid down therein and all
other action are necessarily forbidden."
(ii) "So far as submission of the learned Solicitor General to the effect that
Mauritius route may be taken recourse to for gaining benefit as is done by the
industrialist setting up industries in M.P or some other place in the country
where tax benefit are given re concerned, the same is stated to be rejected. Economic
activities in different states by grant of exemption to the industries are done
in terms of the provisions of the statures. Such exemptions are g ranted in furtherance
of the legislative policy so as not only to put the local resources including
human resources to optimum use but also for development of the country. Such benefits
and exemptions are granted by way of payment of sales tax and electricity subsidy
etc but the same principle cannot be said to be applicable for the purpose of
double taxation avoidance scheme. In any event, taking undue advantage of a scheme
only for the purpose of avoidance of tax cannot but be deprecated. Treaty shopping
which amounts to abuse of the Indo Mauritius Bilateral treaty, may amount to fraudulent
practice and cannot be encouraged."
(iii) " The suggestion to the effect that in such cases the attention of the
Central Govt. can be drawn and the matter can be taken up at the government level
is not contemplated in the statute. No law encourages opaque system to prevail.
The core issue is as to what should be done when on investigation it is found
that the assessee is a resident of a third country having only paper existence
in Mauritius without any economic impact with a view to take advantage of the
double taxation avoidance scheme. No attempt has been made to answer the question
on behalf of the Central Govt. inasmuch as it merely stated in the counter that
power of the assessing authority under section 4(3) of the treaty has not been
taken away By reason of the impugned circular even such a power has been taken
away inasmuch as a certificate of residence has been made conclusive. In any event,
having regard to the facts and circumstances of the case, only by production of
a residential certificate, a assessee cannot be held to be entitled to take benefit
of the treaty although it neither pays income tax in India nor in Mauritius. Such
an action would be ultra vires the Income tax Act.
I was aghast at some of the contentions on behalf of the Union of India. I
was wondering how could
(a) the Government of India not see the difference inter se the concessions
granted to the residents of our own country and the residents of the foreign lands.
The economic activities in different States of the Union generate resources for
the nation. The resources, which come to the Consolidated Fund of India, are under
trust for the benefit of our people to deployed as our Parliament thinks fit and
proper. What is illegitimately looted by the treaty shoppers, masquerading as
the Mauritian Residents for the benefit of the persons of the countries not parties
to the treaties, can never be for a benefit of our country. At best the foreign
operators are our fair weather friends sure to ditch us in moments of crisis,
be it war or aggression, be it an economic melt-down or socio-political unrest.
The argument advanced was surely grossly detrimental to the public interest, and
would be contrary to law and public policies of the Republic of India.
(b) the Union of India think of relying on a factor so grossly extraneous to
the Law of Income-tax. Section 90 is not for amassing foreign reserve. It is a
debatable proposition whether the fast waxing reserve made up substantially with
"hot money" flows of the portfolio investors motivated only by their financial
returns on their investments through Capital gains and dividends, can be really
good for a stable economic management. How could the evident and widely known
money-laundering and the criminal layerings of wealth through the tax havens be
justified when its effect was tainting our polity itself.
Some of such contentions provoked me even to comment in the Court: "In effect
I am represented the Revenue of this country. God alone knows whom the gentlemen
on the other side was representing !" My comment elicited smile on most faces,
though some turned sullen and glum, perhaps at my indiscrition.
The High Court appreciated the help that I had rendered to the Court in words
more valuable than any distinction which could have been ever conferred on me.
The High Court observed: per S.B. Sinha, C.J:
"We would however like to make an observation that the Central
Govt. will be well advised to consider the question raised by Shri Shiva
Kant Jha who has done a noble job in bring into focus as to how the Govt.
of India had been losing crores and crores of rupees by allowing opaque system
I felt the High Court should have better said "….hundreds of crores…".
I was thinking that some day our Government would ask me to disclose such facts
for taking remedial actions in the interest of our nation. But this was never
to happen. The persons who mattered were surely conscious of the skeleton in the
cupboard. Rather our Government enjoyed sailing in the same boat with the representative
of the looters against whom I had blown whistle. But this is the tragedy of our
country. Some day we shall have to find ways to deal with such things. Whilst
our agenda is certain, our time-table for action is uncertain.
The Court had granted cost of Rs 10000. I told Dr Banwari Lal Sharma, the
Chairman of Azadi Bachao Andolan, that when we get the cost we must donate the
whole amount to the President of India for some charitable cause. But it did not
happen that way as our Government appealed to the Supreme Court under Article
136 of the Constitution of India.
[Before the Supreme Court]
(a) Scene I: The SLP
I never thought any government worth its salt, and mindful of the nation’s
interest would ever even think of questioning the decision of the High Court which
I had analyzed in my article. I felt only pervert masochistic adventurism could
warrant such a course. But I was mistaken. I had forgotten that our country is
now being ruled by a Sponsored Government for which transparency means
structure of deception. It did not take long for the cat to come out of
The Union of India filed Special a Special Leave Petition under Art 136 of
the Constitution of India against the Judgment of the under cause-title UOI
&Anr v. Azadi Bachao Andolan & Anr. What I had apprehended through
a dense fog, was ceasing to remain an inscrutable silhouette. Many things took
place in revealing synergy to rip off many of illusions. I did often feel that
often I stood on treacherous quicksand. I could get some counseling in the words
of Freud  :
"There is something to be said, however, in criticism of his disappointment.
Strictly speaking it is not justified, for it consists in the destruction of an
illusion. We welcome illusions because they spare us un-pleasurable feelings,
and enable us to enjoy satisfaction instead. We must not complain, then, if now
and again they come into collusion with some portion of reality, and are shattered
In the Petition for Special Leave the Government had not come before the Court
with clean hands, and there were reasons showing attempts to overreach the
Court by misstating facts and by circling out this Respondent’s whole case in order
to shut out the core issues and seminal facts from the gaze of the Court. Neither
the filing of this Respondent’s Writ Petition was mentioned in the "Synopsis and
List of Events" filed with the SLP, nor was a copy of the Respondent’s Writ Petition
enclosed with the SLP (though the Appellants had chosen to include as Annexure
the Writ Petition and pleadings filed in CWP NO 2802 of 2000 but excluding the
copy of the Assessment Order under Section 143(3) of the Income-tax Act passed
in a case of a treaty-shopper M/s Cox & Kings Overseas Funds (Mauritius)
Ltd.).This prime issue was not the subject-matter of the Writ Petition No. 2802
of 2000 ( Azadi Bachao Andolan); whereas it was specifically stated in
Writ Petition supported and developed in course of proceedings before the High
Court by filing written submissions supported by decisions and documents filed
in 4 volumes of Paper-Book. I stated in the Counter Affidavit:
"The Petitioners have designed this SLP to shut this Respondent’s case out
of the Hon’ble Court’s view, which amounts to an unfair practice of clogging the
dice. This resort to the technique of selective manoeuvring is improper. That
the improprieties in the SLP filed is an outcome of a studied strategy, as the
Solicitor-General who settled the SLP knew this Respondent’s case well as would
be evident from my reply to his arguments before the Delhi High Court…..The "core
issue" was raised and answered in this Respondent’s Writ Petition. As this core
issue could not have been answered without destroying the whole case of the present
Petitioners, they refused to face it, and completely evaded it ……….."  .
It was further pointed out that the SLP suffered from an evident impropriety
as the cause-title had been improperly structured with an evident purpose to overreaching
the Court. A reference was made to Shri B. R. Agarwala’s book Supreme Court
Practice and Procedure at p.301 in which he stated:"Cause Title of the judgment
impugned and as given in special leave petition must tally." In itself, what the
Government did might look of no importance, but it indicated how much unfair even
they could be whom we are accustomed to trust. The effort might not have brought
any dividend to them, but it did reveal the state of mind. .
On Nov. 27, 2002 I got a letter from the Assistant Registrar, Supreme Court
, informing me that the M/S Global Business Institute Ltd 
had filed a Petition for Special Leave Petition for Interim Relief and Application
for permission to file SLP [SLP NO 22522 Of 2002 ]. The Court, accepted the prayer,
and, on Nov. 18, 2002, issued of notice. When I questioned its locus standi
to become a co-Appellant by emerging out of the blue only before the Supreme Court.
The so-called Mauritius company had the audacity to question my locus standi
itself in words which deserve to be quoted:
"The Petitioner further states that it is vitally affected and prejudiced by
the impugned judgment, as it represents investors, businesses, assets managers,
management companies, lawyers, accountants and other service providers situated
in various countries who are its members, and who are concerned and vitally affected
by the impugned judgment. The application to file a SLP in this regard has been
moved and it is members who it represents were not impleaded as parties to the
proceedings before the Hon’ble Delhi High Court and were not heard . On the contrary
the Petitioner submits that the writ petitions filed before the Hon’ble High Court
ought to have been dismissed for non-joinder of necessary parties. The Petitioner
humbly submits that it does have the locus in the present case.. Further , the
Petitioner submits that the Respondent No 3 did not have any locus to file a writ
petition agitating matters of economic policy. Further , the Petitioner submits
that the Respondent No 3 did not have any locus to file a writ petition agitating
matters of economic policy".
I submitted in reply to it that the position of the Mauritian company was
untenable, as our grievance was against the administrative lawlessness of our
own Government; hence there was no question for making it a necessary party. I
"If certain executive acts are found contrary to law , the consequences of
such determination would overtake those who enjoyed the undeserved benefits of
the governmental acts contrary to law. If a tree is to be uprooted in obedience
to law, none should think mournfully about the black ants or red ants which flourished
on the tree so long it stood erect before law ceased to be a rogue’s charter.
It is felt that the private beneficiaries of public wrong could not be the
necessary parties. Mulla in his CPC 14th ed at p 868 writes:
‘Necessary parties are parties "who ought to have been joined", that is, parties
necessary to the constitution of the suit without whom no decree at all can be
passed"In order that a party may be considered a necessary party defendant, two
conditions must be satisfied, first, that there must be a right to some relief
against him in respect of the matter involved in the suit, and second, that his
presence should be necessary in order to enable the Court effectively and completely
to adjudicate upon and settle all the questions involved in the suit." Failure
to implead a necessary party as a party to the proceeding is fatal.
"…. This principle has been applied to writ petitions also."
In PIL of this type the focus is on the administrative remissness to "vindicate
the rule of law and to get the unlawful conduct stopped." [ as Lord Diplock observed
in Inland Revenue Comrs v National Federation of Self- Employed and Small Businesses
Ltd.(1981) 2 ALL ER 93 at 107 (H L)]. It was pointed out, besides, that strange
and noxious things were happening in the world. The Court was invited to take
note of the operative realities in this phase of Economic Globalization. What
the 2002 Britannica Book of the Year ( p. 392 ) says about The Bahamas,
a country (Area 5382 sq.mil.) having Population only (2001) 298000 might not be
untrue about Mauritius :
"The Bahamian government moved smartly against dubious offshore banks
in Feb.2001;it closed down two operations and revoked the licenses of five
others following the publication of a U.S. Senate report that described
them as conduits for money laundering. In June The Bahamas was removed
from the Paris-based Financial Action Task Force list of countries with
inadequate laws to fight money laundering. The government had launched
several initiatives, including the banning of anonymous ownership of more
than 100,000 international business companies registered in the country."
But I could not persuade the Court. It granted the prayer made by Shri Arun
Jaitley, Sr Advocate appearing on behalf of the Mauritius company. 
In some context, the Court observed (per Chief Justice Y.K.
Sabharwal) that the points relating to the ambit and reach of the circular
framing power of the Central Boar of Direct Taxes under the Income-tax had
already been referred to a Constitution Bench whose decision thereon would
govern that issue raised in the Writ Petition. I felt that the observation
was fair. I was told that that reference to the Constitution Bench had been
made in Commissioner of Central Excise, Bolpur v. M/S.Ratan
& Wire Industries [Civil Appeal No. 4022 of 1999]. I thought it prudent
to move an Intervention
Petition in Ratan’s case on 28. 10. 2005.
It was numbered as IA.No.3, and came up for hearing before Hon’ble Mr. Justice
K.G. Balakrishnan (in Chambers) on 01/08/2006 The Court ordered "Post
along with the main matter." The matter is pending. [It is worth mentioning
that under this reference the correctness of Azadi Bachao Andolan & Shiva
Kant Jha is
clearly under question. If the Supreme Court decides in favour of the Appellant,
the decision of Azadi Bachao Andolan& Shiva Kant Jha would stand
overruled, expressly or impliedly. It is also worth noting, that order of this
Court passed on Nov. 28, 2007 in W.P.(C) 334 of 2005, disapproved this Petitioner’s
questioning the correctness of Shiva Kant Jha in the situation inter
It is felt that as the Intervenor in Ratan is not in the ‘inter partes situation’
he can assert the point, that Azadi Bachao Andolan & Shiva Kant Jha
deserved to be overruled. If successful, it will destroy its precedent-value.
Let us see when the Constitution Bench to hear this reference is constituted.]
I may mention that the Intervention Petition would show that now the Supreme
Court itself doubts the correctness of
(iii) The law officers
I have already mentioned that the SLP before the
Supreme Court was filed by the Union of India in which a Mauritian company became
a co-appellant. The leave for appeal on behalf of the Mauritian company was sought
by Shri Arun Jaitley. He had the distinction of being for some time a Minister
of State, and was appointed in November, 2000 as a Cabinet Minister with the charge
of Law, Justice and Company Affairs. He was the General Secretary of the BJPfor some time, then was elevated to the Union Cabinet as the Minister
of Commerce & Industry and Law & Justice on 29 January, 2003. After that
fruitful appearance when the leave was granted to the Mauritian silehoutee, said
to be a company incorporated in Mauritius, this co-Appellant case was entrusted
to the eminent Shri Harish Salve, who had argued the Government’s case in the
matter before the High Court as India’s Solicitor-General. The Union of India’s
case was argued by Shri Sorabji, the then the Attorney-General. Both these
learned men, who had once argued the case of McDowell & Co. against the Union
of India, but had lost before the Constitution Bench, argued now that McDowell had
been wrongly decided. So great was their persuasion that this bastion in favour
of the Revenue got battered and bruised, and the Bench inflicted on it the
indecorous vituperatives: "a hiccup" and "temporary turbulence". The Government
enjoyed the discomfiture of this great decision which had stood it in good
stead for decades. I was wondering: why this stead-fast adherence to death-wish;
what was the tragic trait for which the Furies of this Economic Globalization
were driving our Government it to this perdition. Whilst McDowell was often
support to crack the shell of deception that the looters of Revenue crated,
became, through its fall, a burden of song of those who cock a snook against
the Revenue. I wrote to the Finance Minister (Shri Jaswant Singh) to appreciate
the self-inflicted wounds, but none even acknowledged that.
Mr. Sorabji, and the counsel for the tax haven company, Mr. Salve, pleaded
that the abuse of Treaty-shopping was "perhaps, it may have been intended
at the time when Indo-Mauritius DTAC was entered into." [263 ITR 706 at p. 753].
To ‘intend’ is ‘to plan or have in mind as one’s purpose or aim.’(Chambers 21st Century
Dictionary). This plea had absolutely no basis. The acceptance of this plea on "no material" destroyed the Petitioner’s
case against the Treaty Shopping. It caused a serious miscarriage of justice.
In Dhirajlal Girdharilal v.
 , CIT v. Daulatram Rawatmull  , Dhakeswari Cotton Mills Ltd
v. CIT  , Omar Salay Mohammed v
CIT  ; and Lalchand Bhagat Ambica
Ram v. CIT
 , the Supreme Court set aside the assessment
on the ground that it is based on bare suspicion, conjectures and surmises and
further held in the first two cases that a finding of fact would be vitiated
if it is based partly on conjectures or on material which were partly inadmissible
or irrelevant, even though there may be some other relevant and admissible material
to support the finding."  I was aghast how could, on mere surmise,
the Attorney-General chose to inflict that slur on Mrs Indira Gandhi and Mr Pranab
Mukherjee as they had gone to Mauritius in 1982 when the Indo-Mauritius DTAC was
under negotiation. Adverting to this morbid point, this Petitioner stated in his
Writ Petition (CW 334/2005):
"This Petitioner had stated that this assertion was false as there was nothing,
there could be nothing, to prove it, or even to suggest on the principle of probability.
Mr. Salve had been paid for to plead whatever could advance his client’s case,
fact or fiction. But it was shocking to find the Attn.-General doing that. The
unstated but dexterously suggested idea was to free the BJP government (and its
then F.M Mr. Yashwant Sinha ) from the remissness in promoting Treaty Shopping,
and to put the blame on the Congress as the Indo-Mauritius DTAC had been signed
when Mrs. Gandhi had visited Mauritius 1982 along with Mr. Pranab Mukherji, the
then F.M in 1982. It was unbecoming of both the counsels to suggest this , even
in pregnant aside. The Court was not the appropriate forum for playing politics.
They brought out no travaux preperatoires (preparatory work). They brought nothing
to suggest even remotely to prove this sinister suggestion. A DTAC founded on
the mutuality principle is never, nowhere, used for the benefits of the treaty-shoppers.
This Petitioner quickly responded that the Att-Gen should not have suggested such
a baseless idea which is playing politics in course of the solemn judicial proceeding.
This Petitioner had investigated how the Indo-Mauritius DTAC was entered into.
This Petitioner submits that Hon’ble Court committed a mistake of fact by stating
that the abuse of Treaty Shopping, "perhaps, it may have been intended at the
time when Indo-Mauritius DTAC was entered into." This conclusion is based
on no material: hence this conclusion of facts should be expunged from the
Judgment so that this undeserved insinuation does not sully the reputation
of Mrs. Gandhi
who, when all is said, was a great patriot, perish the thought, perhaps the last
patriot." [emphasis now supplied].
It was painful to see how throughout the judicial proceedings the Law Officers
sailed in the same boat with a tax haven company. Its awkwardness reached a high
point when they vehemently argued against the Constitution Bench decision of our
Supreme Court in McDowell that our Government had won despite the pleadings
by the same gentlemen before the Constitution Bench which decided the Case of
McDowell & Co!. This was not unnatural for Mr Sorabji who could say
in one of his published articles  with evident barbs:
"Thank God there is no patriotic duty to pay taxes which can be legitimately
avoided unless, like the great Justice Holmes, one enjoys paying taxes, sharing
his anachronistic belief that it is the price for the purchase of civilisation.
Tax practitioners and consultants would face serious problems if Justice Holmes
is taken seriously."
This phase, wherein Pax Mercatus has subjugated the political realm, it is
not unnatural to ridicule the views of Justice Holmes, who said that taxes "are
what we pay for civilized society", and of Sir Leo Money, who said, "I like to
pay taxes. With them I buy civilization." This brought to mind what H.H. Monoroe
said in 1981 Hamlyn Lectures
"If social attitudes to evasion are tolerant, judicial attitudes to avoidance
are ambiguous. Inevitably one judge will emphasize the citizen’s right to arrange
his affairs within permitted legal limits to avoid the incidence of tax."
If our Government could know: if our Government could do.
The Appellants were represented by the most celebrated counsels, each assisted
by a battery of assistants, well fed and well paid. But the Mauritius company
had left no stone unturned in making its representation the finest that could
be terrestrially possible. Mr Salve, a Senior Advocate and a former Solicitor
General, had his finest hours. But more interesting was the verve of the Knights
of his Round Table. Those who assisted him included Mr P.H. Parekh, Adv. for M/s.
P.H. Parekh & Co. and the galaxy of other legal stars which included the stalwarts
from Nishith Desai Associates of Mumbai. On most days I saw some officers from
the Income-tax Department (some of them my old friends), but their only role was
merely of pathetic onlookers from the margin.
Whilst reading Aeschylus’ The
Oresteia, Hermann Hesse’s novels and Ibsen’s plays one is constantly under
impression that something inscrutible and incomprehensive guide the course of
irrestible events with over-powering force. I often had this very feeling in the
course of the litigous process of this PIL. My mind goes back a quarter of a century
back when I was a Senior Departmental Representative before the Income-tax Appellate
Tribunal at Calcutta. In course of arguments, in some case, the gentleman representing
that case asserted vaingloriously, "Your honour, I would get a circular issued
by the Central Board of Direct Taxes in favour of my client. And in view of the
Supreme Court decisions, that would be binding on the Assessing Officers." I had
felt nauseated by the swinish assertion. I do not know whether he succeded in
his pursuit or not. But the course of events in this PIL showed that such things
were not beyond probabibility.
I would just dwell in brief on what I saw happening before my own eyes. When
the Writs were filed before the Delhi High Court a circular was issued to suggest
that the questioned Circular had not stopped investigation into cases of the assessees
with operations from India. In fact, it was not the point at issue. It was considered
irrelevant by the High Court. Whilst the matter was before the Supreme two circulars
were issued to repair the case of the Appellants. They were being issued in quick
succession illustrating an adroit strategy not uncommon when we are getting trapped
in the waxing syndrome of a Sponsored State, about which I have written in detail
in the first chapter of my book The Judicial Role in the Globalised Economy
( Wadhwa 2005). The climax came when the Finance Act 2003 came to their rescue.
The Finance Act 2003 substituted the following clause (a) for the existing clause
(a) in sub-Section (1) of Section 90:
"(a) for the granting of relief in respect of---
(i) income on which have been paid both income-tax under this Act and income-tax
in that country; or
(ii) income-tax chargeable under this Act and under the corresponding law
in force in that country to promote mutual economic relations, trade and
It also inserted sub-Section (3) which ran thus:
" Any term used but not defined in this Act or in the agreement referred
in sub-section 90 (1) shall, unless the context otherwise requires, and is
not inconsistent with the provisos of this Act or agreement, have the same
meaning as assigned to it in the notification issued by the Central Government
in the Official Gazette.
That the immediate contexts of these statutory changes were also to be taken
note of. The Petitioner, in course of his argument on February 5, 6, 11, and 13,
2003 before the Division Bench of the Supreme Court, drew the attention of the
Court to the Indo-Mauritius Convention for Avoidance of Double Taxation, and pleaded
that it was ultra vires as the Section 90 (1) of the Income-tax Act did not authorize
the Central Government to enter into an Agreement for the purposes of trade and
investment The Preamble to the Indo-Mauritius DTAC provided:
"The Government of the Republic of India and the Government
of Mauritius, desiring to conclude a Convention for avoidance of double taxation
and the prevention of fiscal evasion with respect to taxes on income and
capital gains and for the encouragement of mutual trade and investment have
agreed as follows…..".
The Union of India and its tax haven co-Appellant felt that their stand was
untenable. They availed of the earliest possible opportunity to get the statutory
provisions amended. The Finance Bill 2003 was made to contain the provisions
already referred. The Petitioner had reasons to believe that the substitution
and insertion of new clause in section 90(1) are not in pursuance to any report
or suggestion by any expert committee or study group, but are mere knee-jerk
reaction to this Petitioner’s pleadings before the Division Bench of the Supreme
My days were well spent.
In the concluding paragraph of his famous book The Rise and Fall of the
Great Powers, Paul Kennedy writes: "To paraphrase Bismarck’s famous remark,
all these powers are traveling on ‘the stream of Time’, which they can neither
create nor direct’. but upon which they can ‘steer with more or less skill and
experience’."  That abiding fount of delight,
which sustained me over 7 years, I got in the immortal words of Lord Shri Krishna.
What one is bidden to do by his conscience or circumstances, one must do as his
duty. One’s right is only to one’s duty: karmany eva ‘dhikaras te, ma phalesu
kadacana (The Gita II. 47)
For almost two years I had very enjoyable time at the Delhi High Court. The
lawyers I met there in the campus were not much different from those who had been
portrayed by Chaucer in his The Canterbury Tales, written in the 14th
century. The variety in the specimens of the homo sapiens as we see in
the Canterbury Tales couldn’t be found in that medley of homo juridicus
fast becoming in the recent time homo economicus. Though there were some
who in their flamboyance recalled the Wife of Bath, most of them displayed the
same deception to which Chaucer refers while portraying his Man of Law. After
all he was himself a lawyer of some repute.
Nowher so bisy a man as he ther nas;
And yit he seemed bisier than he was. (ll. 323-324)
I had enough time to analyse with discrimination what differentiated this learned
profession from the celebrated ancient profession whose members are now becoming
the service providers under the umbrella of the Agreement on Trade and Services
under the WTO regime!
At the Supreme Court I had many more opportunities to enjoy my intellectual
feats which in vacant moments my mind conjured up, though most often I was lonely
in the crowd of the learned brothers. As on most days I had hardly anything to
do except loiter around, certain things, so obvious but not always known, caught
my attention. Once, whilst a mere log under the Sun, I read the emblem of our
Supreme Court, and reflected over it. Many things kept me delightfully pre-occupied
over the years of drudgery from which I brought nothing for my wife to appreciate
me, but over which I spent time and money against all, of course, without terrestrial
prudence. I incurred no expenditure on the PIL except on Xeroxing. But over the
whole process of getting about 50000 pages Xeroxed, I might have spent about Rs
Now I must interject something personal, obviously out of tune with the general
tenor of this Introductory Note. Without my wife’s support I couldn’t have done
what I did in the December of life, when the better pursuit would have been to
bank on the laurels of the past and the present pension. These days we hear most
daughter-in-laws think it wise to learn from the films, advertisements. media,
and pubs, but seldom anything from their mother-in-laws. My wife was an exception.
The dedication with which my mother had inspired my father to get involved the
whirls of the revolutionary activities was always appreciated by her. And she
too shared something of hers in pursuing public cause. I valued her views. How
could I forget that I always considered that the profoundest Judgments ever delivered
in the world were not by the professional Judges, but by ordinary housewives:
one by Gandhari who said "Yato Dharmahstato Jayah (Where dharma is victory
is surely there only), and the other by Bidula, who after having said:
"Abject poverty is worse than the woes of having known that one’s husband or
son is slain,
Poverty is virtually a synonym of Death itself."
told her son the immortal verdict pashyame kuru paurusham (now I would
witness the valour of your human-specific great creativity) [ The Mahabharat
Udyogapurva Chap. 135.32].
I have already referred to her Judgment on the issue for which I have been
seeking a judicial answer. You can read something about these if you have moments
to waste on someone who was fortunate to have no greatness cast on him.
I was delighted to see Gandhi’s bust on a pedestal in the campus facing the
Chief Justice’s Court. I felt that even his stony presence is great. I felt that
Gandhi’s talisman must be at work somewhere. But it was beyond me to comprehend
why the Father of the Nation was so much down-cast and morose. While it is not
unlikely in these locust-eaten years for most fathers to be sad on seeing the
deeds of their progeny, Gandhi’s drooping face indicated some deeper pang, some
iron in his soul. I could not find out the reasons. Is he so morose because he
has really noticed that the talisman he had given to the decision-makers of the
free India is now quoted at the lowest price on the Stock Exchange! I could have
asked Freda Brilliant Marshall who sculpted the bust of Gandhi, or Dr. L. M.
Singhvi, Senior Advocate, who had presented the bust to the Supreme Court. I
hope persons abler than me would make that discovery.
The architecture of our Supreme Court was designed on an epic scale in tune
with the importance and dignity of the Court and the Judiciary under our great
Constitution. Its massive tall colonnade, with well wrought ornate capital, supporting
the majestic dome suggested how these columns of strength, soaring up from the
earth, spoke to all that whilst this institution was bidden to uphold the Constitution,
it itself was protected and upheld, in the end, by us,( the worms of the earth,
who can even turn). Its massive rounded columns united the best features of the
Corinthian and the Doric style. Its entablature, with its classical simplicity,
and its frieze with elgant imagey, kept mind preoccuied for hours while I basked
under the Sun in Delhi’s cruel winter. What drew mind most was the aura, and the
moral tone exuded by the architecture, which often gets diluted in the legalese
or the govertmentese of the borrowed western jurisprudence. Two most important
founts of such inspiration in continuum are the emblem of the Court with Gandhari’s
words inscribed, and the other, the Father of the Nation observing round the clock
how the progeny of the Freedom Fighters manage the affairs of the State. No such
moral note was struck by Architect Cass Gilbert (and later Cass Gilbert, Jr.,
and John R. Rockart) who was charged by Chief Justice Taft and Chief Justice Hughes
to design the building of the Supreme Court of the United States. But we know
that the meaning of art or poetry depends much on the mind and mission of those
who want to explore that. What disturbed me much was the pursuit of the men of
law to prove by their points only by seeming logic. Have we forgotten that in
John Milton’s Paradise Lost and Paradise Regained, it is Satan who
is the greatest logician before whom even God fumbles. Our Supreme Court commenced
its journey from the Chamber of Princes, a part of Parliament House, where Federal
Court used to sit from 1937 to 1950, I wish it finds its mission in this world
I would be charged guilty if I do not appreciate how the Library I of the Supreme
Courtkept me often absorbed, often rapt, often bemused,
often surprised, often stimulated to be on wings of thoughts about kings and cabbage.
My colleagues had tales more interesting than the tales in Chaucer’s book. They
broke the wings of butterflies on the Catherine wheel of logic with a finesse
at which even the dull witted would marvel at. They expressed enormously valuable
ideas on our polity, but their exercise was almost always no more than casting
pearls….. fruitlessly. The days, when the lawyers provided leadership to the society,
had gone with the wind. But it was very interesting to watch how they guillotined
many judicial acts illustrating judicial incompetence and hubris of no mean order.
I felt that they could have done something good if they would have written them
for the benefit of the idlers. These observations by this fly on the wall need
not be taken seriously or misunderstood.
Yato Dharmahstato Jayah
Never in human history a statement as profound and fundamental was ever made
than what was made by the wife of King Dhritarastra undergoing the worst conceivable
crisis. As these words occur on the emblem of the Supreme Court it commands some
concentration on the words, and its context. I wonder at the wisdom of him who
chose this expression for being inscribed on our Supreme Court’s emblem [ as the
Indian jurists, like the camels when freed from restraints, are accustomed to
run to the west (towards desert)] alone.
The devastating war ever known in history, the Mahabharat War, was over. The
Padavas, with their supreme mentor Krishna went to meet Gandhari, the wife of
King Dhritarastra and the mother of Duryodhana and many of his brothers who had
perished in the War. So sore was that pious lady that she decided to curse them
for having destroyed her sons and many others most venerated.. The great Vyasa
could see through his inner eyes that the Pandavas would be cursed, and would
have to reap the consequence of her wrath. He ran to Gandhari to dissuade her
for doing so. The rest of the matter leading to this declaration of Yato Dharmahstato
Jayah deserves to be said in the great words of the world’s greatest epic
itself [ the Mahabharata Stripurva Chapt. 14. slokas 1-13 ]:
I give an English rendering of the some of the slokas as I have understood
(though I do not think I have credentials for this task).
Then, after obtaining the permission from King Dhritarastra, the Pandavas
, along with Shri Krishna, went to Gandhari.
When the most pious Gandhari, already wrenched with sorrow
on account of her sons’ death, came to know that Yudhisthir, after destroying
his foes, was coming to her, she felt like cursing him.
Vyasa had could know that Gandhari nursed in her mind that sort of decision.
Knowing what she intended to do, he got ready fast, after having had quick ablution,
and reached their place.
He could, with his spiritual and intuitive vision, see what ran in the mind
So to tell things to promote the welfare of his daughter-in-law, Vyasa reached
near her. After having warded of the sinister moments of curse, and having ensured
the emergence of peace, he said:
"O Princess of Gandhar! Be at peace. You need not be so
angry with the sons of Pandu. Utter not the words which you intend uttering
just now; and listen to me.
On each of the 18 days when the war was being waged, your
son, craving for victory kept on going to you to seek blessing to become
triumphant, telling you, ; " Mother , I am going to fight the foes. Bless
me for my welfare.
Whenever your son wanted your blessing for his victory,
you told him "Victory
is there where dharma exists’" but each time you told your son, "
The victory of the Pandavas in the Great War they waged proved beyond doubt
that Dharma is most powerful.
O pious soul, you were very kind always. Why not be kind and charitable even
now? Get rid of what is not dharma (i.e. what is adharma), because where
dharma is, victory is surely there alone.
O great soul! remember your dharma and your words, and as a matter
of consequence, control your anger. O speaker of Truth! let not such idea come
[ The translation is made by me from the text as it occurs in the Mahabharata
Vol 4 pp. 4395-4396, published by the Geeta Press, Gorakhpur]
Dharma, as Medhatithi says, means duties. Deguit also stressed
on duty as the basic force at work in the social matrix involving courses of
solidarity and interdependence. He held: "The first essential ….was to banish from law all
‘metaphysic’, and particularly the notion of right. …. In Comte’s words ‘the only
right which any man can possess is the right always to do his duty.’ Duty to
what? Not to the State, for the State, though elaborately personified in so much
juristic theory, is a mere fiction. L’Etat est mort! It, too, is merely a phenomenon
of political fact, and its function in modern society is not the exercise
of authority or power, but that of acting as a central agency for the performance
of public service." 
But the norms of operations governing the concept of dharma at work, as understood
in Indian thought, are best expounded in the Bhagavad-gita. I wished that
those who selected such words for the emblem of our Supreme Court should have
prescribed that the Judges and the lawyers must study Bal Gangadhar Tilak’s Gita-Rahashya.
In fact, dharma is our grundnorm on which our Constitution is founded,
and by which it is sustained. But most of us have lived cramming empty legal sophistry
facilitating the advent of Kaliyuga even the august jural world. As a witness
to fact, I felt how accurately the 10th century Srimad Bhagavad-Mahapurana
(XII.2. slokas 2, and 4) reflected on the plight conspicuous all around.
[In Kaliyuga the wielders of power would succeed in tilting the scales of
Justice in their favour. Those who cannot bribe may not expect Justice in the
courts, Those, who excel in legal sophistry and logomachy  , would be considered pundits (the lawyers?)
scaling height in proportion to their attainments in such crafts.]
[The translation is made by me from the text as it occurs in the Srimad
Bhagavad-Mahapurana Vol 2 p. 773, published by the Geeta Press, Gorakhpur]
It often happens those who succeed somehow, develop illusions that their cause
must be right as they could not succeed without Satya (Truth) and Dharma
being on their side. They argue that this view is supported both by Satyameva
Jayate and Yato Dharmahstato Jayah! …… I was often wondering how
after this commitment to dharma, ( more fundamental than the Constitution
itself) could our Supreme Court invoke the doctrine of Necessary Evil to
ignore the loot of the nation (as done in Azadi Bachao & Shiva Kant
Jha) ?, or could refuse
to break the corporate shell to see the entente cordiale of fraud and collusion
as it happened in that case?, or could make the Court narrow down its role
to the anachronistic view expressed in "Juices est. jus dicer, non dare" (
as done in Assistant Commissioner of Income-tax v. Velliappa Textiles &
) unmindful of the feats of judicial creativity; or could promote judicial fundamentalism
holding that its orders, after Review and Curative Petitions, even in the inter
partes situation, are above the fundamental rights[ as it was held in Shiva
Kant Jha v. Union of India W.P. I No (s). 334 of 2005 decided on Nov. 28,
2007]; or could say, in Rupa, that it is not an organ of the state without
clarifying whose organ, after all, it was playing?
My Introspection & Evaluation
The judicial approach, and the tone of judicial evaluation made me introspect:
whether I was a foolish interloper wasting judicial time. I felt that the Delhi
High Court had rightly determined the core issue: the High Court had observed:
" The core issue is as to what should be done when on investigation
it is found that the assessee is a resident of a third country having only
paper existence in Mauritius without any economic impact with a view to take
advantage of the double taxation avoidance scheme. No attempt has been made
to answer the question on behalf of the Central Govt. inasmuch as it merely
stated in the counter that power of the assessing authority under section
4(3) of the treaty has not been taken away."
I felt that I should interact with some eminent scholars to evaluate my assertions
on the ‘core’ issue before the court. I sought opinions from two noted experts
on what was considered the
‘core’ issue. They were: Prof. Ray August
, and Prof. (Dr) M.L.Upadhyaya
. Their opinions are quoted in nsustai in the Writ Petition
334 of 2005 [of Prof August, and of Dr. Upadhyaya]. Their
views made me feel that I was on right track; and the cause was worth pursuing
to its logical conclusion. For almost two hours Prof. Sol Picciotto of
Lancaster University Law School, Lancaster, UK recorded my interview
on the various issues involved in this PIL
.He was greatly appreciative of my endeavour. I received some valuable
assistance from Prof.John Cary Sims of Mcgeorge
School of Law, California, with whom I had the good fortune to interact
at the 43rd Congress of the International Association of Lawyers
held in New Delhi. Shri Shanti Bushan, Senior Advocate, appreciated most of
my points with candour and light for which I must be grateful to him .
But the whole endeavour Babu was with me. His
these words provided me the touchstone to judge all the acts of
the welders of power: the words of Mahatma Gandhi:
"I will give you a talisman. Whenever you are in doubt or
when the self becomes too much with you, apply the following test:
Recall the face of the poorest and weakest man whom you have seen and ask yourself
if the step you contemplate is going to be of any use to him. Will he gain anything
by it? Will it restore him to control over his own life and destiny? In other
words, will it lead to Swaraj for the hungry and spiritually starving millions?
Then you will find your doubts and yourself melting away."
And the text on the Board at Bapu’s Wardha Ahram couldn’t be forgotten
as therein he had got written the seven sins which included "Politics without
principles" "Wealth without work" and "Commerce without morality". [see photogrpahs
section on my website
The Judgment on W.P 334 0f 2005 was delivered on 07-10-2003. I was not present
in the Court. I had gone for a fortnight to Laheriasarai to conduct certain affairs
at the Bhagavad-Gita Study Centre at "Veenapani Bhawan". I got information telephonically
that the decision had goneadverse. I had a sense of cathartic repose. I felt that
God needed my candle to burn for something else. While I was there, I got a call
from V. Sridhar of the Hindu that he wanted to record my interview on the
said Judgment. He recorded my interview from Madras, and published that in the
He wrote some articles also on the abuse of the Indo-Mauritius Double Taxation
Convention [The Frontline  ].
Azadi Bachao Andolan accepted the Judgment on its Writ Petition. I felt I
must challenge it. The lawyers of Azadi Bachao Andolan adopted with equanimity
what the Court did. Dr Samuel Johnson had aptly said:
"A lawyer has no business with justice or injustice of the
cause which he undertakes, unless his client asks his opinion, and then he
is bound to give it honestly. The justice or injustice of the cause is to
be decided by the judge." 
I felt that I must question the decision which our common citizenry would
consider unfair and unconstitutional. I was their alter ego; I decided to act
from their observation-post. A Review Petition was filed. A Review Petition comes
up before the Judges who decided the case. I wanted that the matter be disposed
of in the open court, but the request was not granted. The Review Petition was
considered in chambers, and was dismissed.
(c ) Scene III: The Curative Petition
This Petitioner presented a Curative Petition, invoking this Hon’ble Court’s
jurisdiction under Articles 137, 142 of the Constitution of India, and its inherent
powers, to reconsider, under the aspects of law and justice, the Judgment, dated
October 7, 2003, of the Division Bench of this Hon’ble Court. The remedy, through
a Curative Petition, is to be given within the parameters of the Constitution
Bench Decision in Rupa Ashok Hurra vs. Ashok Hurra & Anr. (2002 (4)
S.C.C.388. As per the procedure prescribed, a Certificate that the case was a
fit case for filing a Curative Petition, was to be obtained from Senior Advocate.
I felt that I must get it from Shri Shanti Bhushan, Senior Advocate, and a former
Law Minister of the Union of India. I was told by some of my friends that a Sr.
Advocates charges heavy fee for issuing the fitness certificate. I must record
with high appreciation that, appreciating the national cause involved, he did
not charge anything, rather he put me under gratitude by showering on me words
of appreciation. This Petition was considered in the chambers by 5 Judges on several
days. No hearing Ostiis apertis ( in the Open Court) was given. They dismissed
by an order dated December 08, 2004, which ran as under:
"We have carefully perused the contents of the curative petition as also
the certificate given by the learned senior advocate filed with the petition.
We are not satisfied that any ground has been made out for entertaining a
curative petition within the parameters laid down by this Court in Rupa Ashok Hurra v. Ashok
Hurra & Anr. 2002 (4) SCC 388. The curative petition is dismissed
I was of the considered view that Rupa Hurra had been incorrectly decided
in so many ways on so many points. Further, I agreed with H.M. Seervai, Dr D.D.
Basu, and Ramchandran that it was wrong for the Court to hold in that case that
no remedy under Article 32 of the Constitution of India could be granted even
if the Superior Courts violated fundamental rights. Rupa appeared to me
constitutionally objectionable, historically anachronistic, jurisprudentially
unsound, and even unfair because of its self-exculpatory approach. I had written
two chapters in my book, The Judicial Role in Globalised Economy 
[ Chapter I: "Not on the Trident of Lord Shiva"; and Chapt. IV:
" The Frontiers of the Doctrine of Ex Debito Justitiae"] on Rupa’s case,
and how the view taken by the Court was open to serious criticism.
[Before the Supreme Court ]
(a) Scene I: The Writ Petition
After a lot of deliberations, I filed a Writ Petition under
Article 32 of the Constitution. It was a detailed Writ Petition in two
volumes. So many "Great Firsts" were to the credit of the Writ Petition
(i) This Writ Petition contended, first the first time, that the decision
of this Hon’ble Court in Rupa Ashok Hurra v. Ashok Hurra was made per incuriam,
and required a reconsideration so that this Petitioner’s fundamental
rights guaranteed under the Constitution of India could effectively enforced.
(ii) For the first time in our jurisprudence the reach and ambit of the Treaty-Making
power of the Government was under judicial scrutiny.
(iii) For the first time under the common law jurisdictions the dfferntiainter se the treaty-making power of treaty in generic sense, and the treaty
making power stricto-sensu in the form of a treaty pertaining to tax laws,
were under examination.
(iv) For the first time, a Superior Court in this wide world has held
in this impugned Judgment that it had no power to provide a remedy against Fraud,
and, at best, it merely made a mere cri de Coeur to the Executive and Parliament
to provide measures to eradicate this evil.
(v) For the first time in the civilized global jurisprudence, this
Court had held the evil of Treaty-Shopping valid without showing any deference
to the approaches shown by the superior courts in Britain, the U.S.A, Canada,
France, Germany, and Switzerland et al.
(vi) For the first time in the recent years the Division Bench of
this Hon’ble Court in the impugned Judgment not only departed from a decision of the
Constitution Bench of this Hon’ble Court, but also provided it an indecent coup
de grace with pejoratives like "hiccup" and "temporary turbulence".
(vii) For the first time after the Stuarts, the impugned Judgment granted
the Executive a Dispensing Power, and sustains per incuriam and per
ignorantiam the proposition that the norm-creating act of the Executive could
override the mandatory provisions of a Parliamentary enactment.
(viii) For the first time in our country the limitations on framing a
tax treaty in terms of Section 90(1) had come up for judicial consideration.
(ix) For the first time in the world a judicial decision is founded on
the opinion of the interested person.
(x) For the first time, the court relied for its central reasoning
on a book by an author having no juristic credentials, and the book unworthy
and unsound in many ways: a book like of which had not hitherto been relied
in any of its judgments of this Hon’ble Court.
(xi) For the first time a Judgment had been delivered which reeks with gross breaches
of the Rules of Natural Justice, and was conspicuous for certain acts patently
(xii) For the first time in this case an issue of greatest constitutional
importance, whether the Superior Courts are the organs of the State within he
meaning of that term under Art. 12 of the Constitution, has been raised as a Principal
issue for judicial consideration.
(xiii) For the first time, certain important principles of Public International
Law were ignored; and for the first time, a corporation, to the delight of the
corporate imperium, was allowed to become an impervious cover-let of gross
abuse, boding ill for our country.
(xiv) For the first time some of the prime issues thrown up by economic
globalization had come up before this Hon’ble Court requiring creative judicial
responses to the challenges emerging under the octopus-grip of all-embracing
his Writ Petition was heard by a Bench of 3 Judges[ coram: Hon’ble Chief
Justice, Hon’ble Justice R.V. Raveendran and Hon’ble J.M. Panchal] on Nov. 27,
2007 and also on Nov. 28, 2007. The Bench indented to dispose of the matter through
that most used 9-letter word ‘dismissed’. But I pressed that some reasons must
be given for my solace at least. The Court dismissed the Writ Petition by an
Order dated Nov. 28, 2007. So the Court passed a speaking Order. Brief
comments on the points set forth in this Order were thus summarized in the Review
Petition against this Order which I filed on Jan. 3, 2008: to quote ---
Core Observations in the Judgment against which is this
Vide para/paras in this Petition
Petitioner restricted the prayer to a re-look into Rupa
The Petition sought remedy against the impugned Judgment. Rupa came
in for criticism on account of its per incuriam dicta to the effect
that the remedy under Article 32 could not be provided against the decision
of the Superior Courts. Assuming arguendo that this proposition
is not revised, an alternative plea was advanced that Rupa was wrong
on the further count that it drew the frontiers of the doctrine of ex
debito justitae very unreasonably narrow by going against the established
jurisprudence the Anglo-Indian Jurisprudence. The Court had per its order
segregated the first point for deliberation with the assistance of the amici
curiae. Nov 27, 2007 was a day for hearing one of the two assertions
against Rupa. In disposing of the whole case even without considering
the alternative plea by treating the Writ Petition as a Petition simplicitor
invoking the inherent power of the Court to restore the doctrine of ex
debito justiae to its rightful juristic status so that the breach of
the Fundamental Rights can be corrected even under this doctrine.
Para 5 supra
The question has been exhaustively considered by the C.B.
The statement is per incuriam as did not decide
this issue even indirectly. The unconsidered obiter dicta were on the
concession of the counsels of both sides. [See Annex ‘A’.]
And para 31 supra
The decision of the S.C can be re-viewed as pointed out
It is a trite legal proposition. When a Judgment is overruled,
its precedent value alone is destroyed, without affecting the binding force
of the decision inter partes. This Petitioner contended that the
Judgment inter partes itself must go if it goes against the Fundamental
Rights. Whether this Petitioner has made out such a case, on facts, is
a different issue turning on the merits of his case.
The decision can also be re-viewed by a larger Bench.
This is the normal judicial decorum, and is a rule of
law. But in Azadi Bachao, gross indiscretion was committed by
departing from the Constitution Bench decision inflicting on it vituperative.
Thus the impugned decision was made without Jurisdiction. What makes
the decision of the larger Bench binding is clearly a rule of law, not
a rule practice.
A. R. Antulay AIR 1988 SC 1531 & Triveniben v. State
of Gujarat AIR 1989 SC 465]
Decision of the S.C "which has attained finality" cannot
"be subjected to Judicial Review under Art. 32 of the Const., at
the instance of one of the parties to the decision."
This proposition is right so long a decision does not
go against the Fundamental Rights. To hold otherwise is to turn indifferent
to what is the very ‘conscience of the Constitution’. The view
of Lord Denman in Rex.v. Boltan (1841) 1 Q B 66 at 74, which is
the conventional justification for this proposition, does not survive to
the extent it goes counter to our constitutional provisions and values.
In fact it has been rejected in the U.K itself. 
Writ Petition dismissed.
The Writ Petition couldn’t have been dismissed by
a Bench of 3 Hon’ble Judges. They could have heard the matter, and
could have referred to the Bench of 5 Judges for answer [as they have done
in so many other cases]. If they felt that the case was to be dismissed,
the only course open to them was to refer the matter to the Bench of 5
The Review Petition, against the Court’s Order of Nov.
28, 2007, was filed on January 3, 2008; , and is pending as on Jan. 9, 2008.
This Review Petition was considered by circulation in chambers, but was dismissed;
petition for oral hearing in the open Court too was dismissed.
The PIL Petitioner felt that as the Writ Petition had raised important and
substantial questions pertaining to the interpretation of Articles 12, 13,
and 32 of the Constitution, the Writ Petition could be dismissed only by a
Bench of 5 Judges. Hence a Writ Petition was moved against the orders made on the said Writ Petition (c) NO.334 of 2005. This Writ Petition (CIVIL) D.NO(s). 27922 of 2008 came up for
preliminary hearing on Nov. 17, 2008. The Court (Hon’ble the Chief Justice & Hon'ble
Mr. Justice P. Sathasivam) was in no mood to entertain it. Even the plea that
as the impugned order was by 3 Judges, the Bench of 2 Judges could not proceed
with the matter was rejected. This Writ Petition too was dismissed summarily
without recording any reasons.
The saga of this PIL is immensely important for the students of constitutional
law, and for all those interested in examining our Constitution at work. What
this cavalcade of events, and this litigation at the epic scale make me think
pro bono pulico would be examined in an article to be loaded on the www.shivakantjha.org
List of articles relevant to the issues involved in the PIL on the
misuse of the Indo-Mauritius Double Taxation Avoidance Convention
has a role to play now" Interview with S.K. Jha, former
Chief Commissioner of Income Tax." Frontline Volume 20 - Issue 23, November,
08 - 21, 2003: Frontline
stranger by the day" by T. C. A. Ramanujam [CBDT's interpretation
of the DTAAs leaves a lot to be desired, says T. C. A. Ramanujam]: The
Hindu Business Line
contours of a conduit by S. Murlidharan [What makes India cosy up to Mauritius
when it comes to taxation, asks S. Murlidharan]: The Hindu Business
Tax Havens and ‘Offshore’ Finance" by Sol Picciotto Lancaster
University Law School Seminar on Money Laundering, Tax Evasion and Financial
Regulation: Transnational Institute, Amsterdam, 12th-13th
 Our Supreme Court refers to the feats of Comus
in Shrishti Dhawan v. Shah Bros AIR 1992 S C 1555
"……. for the Self alone is the friend of the self and the Self alone is the enemy
of the self." The Bhagavadgita VI. 5 ( Dr. S. Radhakrishnan’s Translations)
 Published by Wadhwa & Co. Nagpur and New Delhi
Freud’sThoughts for the Times on War and Death, andCivilization
and its Discontent.
"11. That this circling out of the case put forth by this Respondent before the
Hon’ble High Court was done through a gross act of impropriety suggesting a deep
game most unworthy in this august extra-ordinary discretionary jurisdiction of
this Hon’ble Court.By modifying, without any reason, the judicially determined
Cause-title of the judgment delivered by the Hon’ble Delhi High Court, the Petitioners’
in this SLP committed the impropriety of sitting on judgment of the Court, as
the Court had made this Respondent’s case as the main case in view of the wider
range of Grounds and Prayers in the Writ Petition,…." from the Counter-Affidavit
 Global Business Institute Limited, incorporated
under the Mauritius Companies Act 2001 and having its registered office at Jurist
Consult Chambers, Cathedral Square, Port Louis, Mauritius.
 I still believe that the Mauritius company had
no locus standi to become a co-Appellant with the Union of India. It is
with this view of the matter that I did no t make it a necessary party when I
filed the Writ Petition against the decision of the Division Bench of the Supreme
Court [CW 334 of 2005]
 . 26 ITR 736.
 . 87 ITR 349.
 . 26 ITR 775.
 . 37 ITR 151.
 . 37 ITR 288.
 . Kanga & Palhivala’s Income-tax
7th ed p. 1135.
 Professor of Business Law, Washington State
University and the author of International Business Law (4th ed. 2004)
 Ph. D. former Professor & Dean of the University
of Calcutta, now Professor & Vice President, Amity Law School, New Delhi
 As I explained on the phone earlier today, I
am doing some research on international taxation issues, especially problems of
tax avoidance. I am interested in arrangements between tax authorities for countering
the use of tax havens, such as exchange of information. I read with interest the
case which you helped to bring concerning the India-Mauritius treaty. I would
very much like the opportunity to speak with you about this case and related issues,
such as India's policies on tax treaties and treaty provisions, such as limitation
of benefit clauses, information exchange provisions, and so on." in an e-mail
"Sol Picciotto" email@example.com
sent from LosAngeles.
"Parliament has a role to play now" an Interview with S.K. Jha, former
Chief Commissioner of Income Tax published in Frontline, Volume 20 -
Issue 23, November, 08 - 21, 2003.
 Dr. Samuel Johnson: Boswell, Tour of the
Hebrides, 15 August 1773
 Published by Wadhwa & Co, Nagpur and New
 H W R Wade, after examining the the dicta by
Lord Denman in Bolton, and by Lord Sumner in Nat Bell comments in
his Administrative Law 7th ed p. 299::
"In their own time and context these statements were unexceptionable; they
expressed the traditional doctrine that so long as jurisdiction existed, mere
error as such would not destroy it. But it does not in the least follow that no
sort of error made in the course of the proceedings can affect jurisdiction. Some
questions may arise which the tribunal is incompetent to determine; or some point
may be decided in bad faith or in breach of natural justice or on irrelevant grounds,
or unreasonably, all of which faults go to jurisdiction and render the proceeding
This comment was endorsed by Lord Mustill in Neill v. North Antrim Magistrates’
Court.  1 WLR 1220 (HL).