V. International governance issues
India is a signatory to the International Covenant on Civil and Political Rights, which explicitly affirms the right to privacy in Article 17. As noted previously in this report, the Human Rights Act expressly permits individuals to approach the National Human Rights Commission or any of the State Human Rights Commissions for redress of human rights infringed under this convention.
Apart from this, there are no regional conventions that deal specifically with privacy. India has signed and ratified the International Convention for the Suppression of Terrorist Bombings1 and the International Convention for the Suppression of the Financing of Terrorism.2 India is a signatory to the SAARC Convention on Mutual Assistance in Criminal Matters as well as several bilateral treaties on mutual legal assistance. These treaties typically require signatory states to provide mutual assistance in criminal matters, including, inter alia, 'providing information, documents and records'; 'providing objects, including lending exhibits'; 'search and seizure'; 'taking evidence and obtaining statements'; etc. 3
India is a signatory to 85 agreements (81 DTAAs and 4 TIEA agreements) on exchange of tax information. For instance, India has reportedly signed four Tax Information Exchange Agreements (TIEAs) on the OECD model with the Governments of the Bahamas, Bermuda, Cayman Islands and the Isle of Man4 "popular 'tax havens'. These agreements enjoin the "competent authorities" of each country to provide information "upon request" about a variety of financial details including bank records and corporate information.5 The request must be made on the basis of evidence and "fishing expeditions" are not usually permitted. These agreements include standard confidentiality clauses which require that the information only be disclosed to appropriate tax authorities for purposes of tax proceedings. They also exempt information disclosed to an attorney under attorney client privilege from being disclosed.6
In addition, India has signed a number of Double Taxation Avoidance Agreements which include information-sharing clauses. In June 2010, the Government approached the governments of 65 countries to "specifically" provide for the sharing of bank-related information.7 Pursuant to this, most notably, in June 2011, the Indian Government entered into a revised DTAA with the Swiss government, allowing India to "gain access to the details of Indians' money, which is not accounted for, stashed in Swiss banks".8 Similarly, in the same month, the government of Mauritius agreed to renegotiate its tax treaty with India. Mauritius accounts for more than 40% of total foreign direct investments (FDIs) to India most of which are suspected to be nothing more than treaty shopping arrangements to avoid paying tax.9 An OECD report on India's current DTA with Mauritius points to vast "gaps" in the treaty, including provisions requiring "disclosure of information to the persons in respect to whom information or document had been sought", and notes that Mauritius has not exchanged information over the last three years.10
These treaties seem to have resulted in some information being shared. In October 2011, Pranab Mukherjee, the Finance Minister, reported that, pursuant to these treaties, 'specific requests in 333 cases [...] have been made by Indian authorities for obtaining information from foreign jurisdictions. Over 9,900 pieces of information regarding suspicious transactions by Indian citizens from several countries have been obtained, which are now under different stages of investigation."11
Although information obtained under DTAAs cannot be used for purposes other than tax proceedings, in June 2011, the Income Tax Department announced that it would re-negotiate this clause in its agreements to enable it to share information with other law enforcement agencies like the Central Bureau of Investigation and the Enforcement Directorate.12
- 1. Signed and ratified respectively on the 17th and 22nd of September 1999. International Convention for the Suppression of Terrorist Bombings, UN Treaty Center (2011), http://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-9&c... (last visited Oct 9, 2011).
- 2. Signed and ratified respectively on 8 Sep 2000 and 22 Apr 2003 International Convention for the Suppression of the Financing of Terrorism, UN Treaty Center (2011), http://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-11&... (last visited Oct 9, 2011).
- 3. SAARC Convention on Mutual Assistance in Criminal Matters, (2008), http://goo.gl/Wg5OM (last visited Oct 24, 2011).
- 4. India: Agreements, Exchange of Tax Information Portal, OECD, http://www.eoi-tax.org/jurisdictions/IN#agreements (last visited Oct 24, 2011); Tax Information Exchange Agreements (TIEAs), Center for Tax Policy and Administration, OECD, http://www.oecd.org/document/7/0,3746,en_2649_33767_38312839_1_1_1_1,00.... (last visited Oct 24, 2011).
- 5. See for instance, Agreement Between The Government Of The Commonwealth Of The Bahamas And The Government Of The Republic Of India For The Exchange Of Information With Respect To Taxes, (2011), http://www.oecd.org/dataoecd/47/54/47115735.pdf (last visited Oct 24, 2011).
- 6. Id.
- 7. Govt revises tax information exchange treaty with 65 countries, Economic Times, June 27, 2010, http://articles.economictimes.indiatimes.com/2010-06-27/news/27596832_1_... (last visited Oct 24, 2011).
- 8. India, Switzerland ink pact to cooperate on financial matters to better analyze global econ developments, Contify Banking (2011), http://banking.contify.com/story/india-switzerland-ink-pact-to-cooperate... (last visited Oct 24, 2011).
- 9. Mauritius agrees to revise tax treaty, Times of India, June 19, 2011, http://articles.timesofindia.indiatimes.com/2011-06-19/india/29676414_1_... (last visited Oct 24, 2011).
- 10. Sidhartha, India's DTAA with Mauritius has gaps, says OECD study, Times of India, January 29, 2011, http://articles.timesofindia.indiatimes.com/2011-01-29/india-business/28... (last visited Oct 24, 2011).
- 11. "Government successful in unearthing black money", The Hindu, October 19, 2011, http://www.thehindu.com/news/national/article2551810.ece?homepage=true (last visited Oct 24, 2011).
- 12. Bijay Shankar Patel, I-T dept plans to share DTAA information, Financial Express, June 7, 2011, http://www.financialexpress.com/news/it-dept-plans-to-share-dtaa-informa... (last visited Oct 24, 2011).