While much has been made of the fact that the NDA had the same stand as UPA on disclosing list on black money, the difference is how Modi appointed SIT without a second thought.

Signing a notification to form the Special Investigation Team (SIT) appointed by an order of the Supreme court was Narendra Modi’s almost very first act in office. Since its formation, the Modi government has extended full cooperation to the SIT, as Justice MB Shah, the SIT head, has himself testified in this interview.

The SIT was given a complete list of names obtained by the Modi government as early as June (the same list which the Supreme court asked the government to provide last week), as this affidavit confirms and as Justice Shah also confirmed in the interview. The SIT was also briefed on all aspects of the black money probe and efforts in August.

A little-known fact, however, is that if the UPA had its way, India would not have had an SIT. UPA’s petitions and applications in the Supreme court since 2011 till the fag end of its tenure (as late as the second week of May this year) reveal that it tried everything it could to prevent the formation of SIT. Not once, not twice, but thrice!

First, the SIT was ordered to be constituted way back in 2011. However, at a hearing in the Supreme Court (SC), the Solicitor General for the UPA “vociferously resisted” the suggestion made by petitioner to form the SIT. Read Para 33 of SC’s 2011 judgment .

Having failed in those “vociferous” efforts, the UPA immediately filed an application to modify and set aside (basically, recall) the entire 2011 judgment. That was its second attempt. Some of its objections to the SC ordering the formation of SIT were as under:

SC could not form SIT when petitioners in that case hadn’t specifically asked for it in their written pleadings (Para 15). This was the worst argument. It is well known that our constitutional courts (SC and HC) have plenary powers to order a wide range of measures.

UPA then said that by “superimposing” two Hon’ble retired judges on the SIT, it interfered with the policy decision of the government and also impinged upon the doctrine of separation of powers. This was, again, a hoax by the UPA. SC’s directions clearly stated that the SIT’s role was to investigate all cases of suspected black money and not make any policy on behalf of the government.

UPA then said that the formation of SIT would, in effect, usurp the powers and authority of the government, lamenting that scrutiny, investigation, evasion of tax, etc. would be subject to the SIT. This, UPA said, would “seriously jeopardise” administration of the government. Once again, a revealing argument. An SIT was appointed to see not only that justice is done, but justice is seen to be done. An independent body to investigate black money was required particularly due to UPA slacking in this matter, as SC itself observed in the very judgment.

Then, UPA was worried about a “Pandora’s Box” being opened up due to SIT investigation and tried to create a scare that it would lead to an “absolute close down of the government machinery”. The simple question here is – was UPA afraid of more truths coming out?

Then, the UPA was worried that due to third parties or others providing inputs to SIT, SIT would start enquiring into these allegations. This was a highly condescending argument. SIT was headed by two retired judges of the country’s highest court. Did the UPA think they wouldn’t be able to separate the grain from the chaff? And is investigation into other inputs that bad a thing? Why was UPA so scared?

Then, UPA argued that the power to SIT to formulate a plan, suggesting constitution of institutions, could not be done by a court. This is plain bizarre. It isn’t as if SIT was given the powers to start creating institutions. It would only recommend an action plan. Was UPA worried about SIT’s recommendations as well?

Then, UPA said that SIT having retired judges would be contrary to conferment of powers to investigate. UPA was being deliberately blind to the fact that retired judges have headed, and have been found extremely critical, in heading several inquiry bodies.

Lastly, UPA argued that formation of SIT and its monitoring by SC would be a “serious impediment in the conduct of fair trial” since lower courts would not be able to independently evaluate the material. One wonders why this was never a consideration in the minds of UPA ministers lapping up to the 2002 riots SIT.

On 26 March 2014, the SC dismissed this application to modify and recall its 2011 orders.

Guess what the UPA did? It filed a review petition raising, inter alia, the same grounds for stalling the formation of a SIT. This review petition was filed on 8 May 2014 – the fag end of its term. This was its third unsuccessful attempt.

Clearly, UPA was desperate not to have a SIT look into black money.

This is one key illustration of how the recently fashionable adage – ‘Modi government is the same as UPA’ – rings hollow. Indeed, the scope and extent of confidentiality obligations in our tax treaties with nations remains the same whether it was 2011 or 2014. The law is the law. Therefore, the legal stand of both governments would be (in fact, has to be) the same notwithstanding the political posturing when in Opposition.

What differs – and what needs to be noted when comparing the two – is the approach. The Modi government’s first decision without any delay of any nature was to appoint the SIT. As this column shows, an SIT was the last thing UPA wanted.

Those saying Modi government is the same as UPA are just following the herd.