Fire Sans Smoke

Raman Swamy

The Fugitive Economic Offenders Bill—aimed at preventing culprits from evading the legal process and fleeing the country—was passed by voice vote, mainly because Members from all sides broadly supported the legislation while expressing strong suspicions about the intentions of the Modi government.

In truth the Bill provided a good opportunity for all concerned to flex their muscles for the big fight to come. The main contention of the Opposition was that the Government had brought forward the Bill just as a gimmick to pretend that it was aggressively trying to punish corrupt persons from fleeing the country with ill-gotten wealth.

As Tathagatha Satpathy of the Biju Janata Dal (BJD) put it—"This is just a theatrical spectacle that is being put up by the Government machinery in the garb of legislation".

The many points raised by the opposition can be summarised as follows:
Everybody shares the nation's concern about the shoot-loot-scoot culture that has become dominant and the peasantry has recently seen many economic offenders fleeing the country and refusing to come back to face justice.

The Prime Minister had warned financial and regulatory authorities that they should act firmly to bring down the increasing number of financial frauds and fugitive economic offenders.

But as usual, as has been the legacy of this Government, there remains a significant gap between the rhetoric of its leadership and the reality that is suggested by the nature of the Bill.

In the last few years, there have been a string of businessmen flee the country after allegedly defrauding numerous creditors, especially public sector banks under the watch of the very men who promised to be the watchmen, the chowkidars, of India today.

The magnitude of the crisis, is seen by a response of the Ministry of External Affairs in the Lok Sabha which has itself admitted that in March this year India has the awful record of having 31 fugitive economic offenders who had collectively robbed the honest tax payer of over Rs 40,000 crore.

Rs 40,000 crore is almost the same amount that this Government allocated to the Mahatma Gandhi National Rural Employment Guarantee Programme and they took credit saying this is the record highest ever allocation in 2017-18 for this scheme. They did not actually give all the money.

While the people of country dependent on daily wages are struggling with delayed payments because the Government, apparently, does not have enough money to give the States to pay MNREGA workers, white collar economic offenders and criminals have got away from this country with impunity.

The biggest fugitives have already left the country. The Government has failed to extradite them. Vijay Mallya escaped two years ago, Nirav Modi fled in January, after gleefully taking a photograph in Davos with Prime Minister Narendra Modi.

Jatin Mehta of Winsome Diamonds left for St Kitts in 2016 and Lalit Modi benefited from a 'No Objection' intervention by Minister of External Affairs in 2015 which was a big issue in this House just three years ago. They are all living in luxury abroad.

About the Bill itself, what is the situation that necessitates the need to enact this particular kind of legislation? There is no indication in the Bill of a remedy or even a slightly progressive step to address the larger malaise in regulatory and financial institutions.

Instead, it is a poorly crafted draft where it seems little thought has been given to and the entire exercise reeks of tokenism and political double speak.

The Statement of Objects and Reasons of the Bill states that the existing civil and criminal provisions of the law are inadequate to deal with the problem of economic offenders fleeing India's jurisdiction.

But there are very much existing laws. There is Criminal Procedure Code. The question is to ask whether the proposed legislation is better than the present legal regime.

Take NPAs. First of all, the Government's own figures confirm that the quantum of Non Performing Assets in the public sector banks in the country has more than doubled since they came to power. Hence, they are the ones who will bear the bulk of the burden of the NPAs.

But more significantly, is the BJP seriously arguing that the bulk of these NPAs are due only to fugitive economic offenders? The NPA issue is a much bigger problem.

The Bill has specific gray areas. First, under Section 82 of existing Criminal Procedure Code, if any court has reason to believe that a person is evading a warrant issued by it, then it can require him appear before the court within 30 days and if he fails to do so, it is already in the law today, any property of the concerned person can be attached under Section 83.

That is the present law. So, what are they fixing? Under Section 10 of the Bill, however, once an application has been filed to declare a person as a fugitive economic offender, this Bill gives him six weeks to appear, and an additional period of one week may be given if his counsel appears on his behalf.

So, in fact this Bill actually gives a fugitive economic absconder and offender more time than the existing Criminal Procedure Code. Instead of 30 days, he is getting 7 weeks or 42 days. What is the logic behind this generosity in the Bill.

Now, under the Bill, only if a person has a warrant issued against him for a scheduled offence involving Rs 100 crore or more, will he come under the ambit of this law. Now, this is a very interesting number. Where does it come from?

With this threshold, it means somebody can swindle Rs 80 crore, Rs 90 crore, or even Rs 99.99 crore and he would not attract any of the provisions of this law.

Where on earth did the Modi Government decide that a Rs 100 crore is the only level at which these people should be taken seriously? Under the Prevention of Money Laundering Act, which has already been referred to in the Lower House of Parliament, offences involving one crore or more are covered. It is important that this Rs 100 crore threshold be removed so as to ensure that all types of white collar absconders are brought under the ambit of the law.

Look at Section 14 (a) of the Bill—once a person is declared a fugitive economic offender, then any court or tribunal in India may disallow such a person from putting forward or defending any civil claims in court.
What does 'any civil claims' mean? It is in reality effectively extinguishing a human being's right, an Indian citizen's right to any civil remedy.

For instance, if a person is a fugitive, but at the same time he is part of a property dispute or he is part of a divorce proceeding under the provisions, he cannot defend himself. He cannot take any action in any court of law.

This is a bizarre logic. The provision can prevent him from exercising his rights as an Indian citizen in such cases, even those rights unconnected to the economic offence that he has committed.

The Supreme Court has clearly held that the right to access courts is an inalienable right: "...so basic and inalienable that no system of governance can possibly ignore its significance leave alone afford to deny the same to its citizens".

That means the right to access justice, which has been challenged by the previous speaker, flowing from Article 21 and Article 14 of the Constitution requires the ability to go to a court and ask the court to defend one's rights or at least hear one's side.

These are just a few of the solid queries raised by various Opposition speakers. However, convincing answers were not forthcoming—Piyush Goyal knew the Bill would be passed and made light of the legal and constitutional points, even as he made sarcastic remarks about Shahsi Tharoor's foreign accent and Kalyan Banerjee's alleged unfamiliarity with legal niceties.

raman.swamy@gmail.com

Frontier
Vol. 51, No.9, Sep 2 - 8, 2018