Economic offenders


The manner in which the economic offenders, particularly the owners of big corporate houses have been fleeing India by mocking at the banking and the judicial systems, the law proposed to seize their wealth is a welcome step. In fact, the public disquiet over the apparent impunity enjoyed by the billionaire fraudsters hiding themselves in the safety of foreign countries, any new law is likely to be welcomed by the Indian masses. The NDA-government has woken up from its deep slumber after a series of such incidents as a result of which, those committing fraud on banks and judicial system of the country have already fled. The success of the proposed law now depends on the slight hope that threat of confiscation of their properties will act as a deterrent to those seeking to flee or a big incentive for the fugitives to return. The Fugitive Economic Offenders Bill, which has been cleared by the Cabinet, aims to make up for the shortcomings and provide a fresh legal framework that would enable the confiscation of the property of those evading prosecution by fleeing the country or remaining abroad. It has to be viewed seriously that legal provisions to confiscate the assets and properties of those evading prosecution by fleeing the country already exist. But these provisions are considered to be inadequate for dealing with such offenders. From the provision in the Code of Criminal Procedure for attachment of the property of ‘proclaimed offenders’, to sections in Acts targeting smugglers, foreign exchange offenders and traffickers in narcotics, proceedings for forfeiture of property have been marked by shortcomings and procedural delays. But laws deemed draconian, such as the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, have not exactly been a success. Experience has shown that disposal of confiscated assets is not easy, especially at a price sufficient to recoup losses or pay off all creditors. Given the political interference in extension of large amounts of loans to such owners of the big corporate houses also has to be taken into consideration in view of the past experiences. The politicians of all hues have helped in availing big loans from the Public Sector Banks (PSBs) in the past and also extended a helping hand in getting clearances for taking refuge in some of the foreign countries, which offer safety to them. The politicians in the ruling party and the opposition have already been accused of doing so and helping the fugitives in getting citizenship in those countries where they landed during the past four years. Allegations and counter-allegations have been levelled by both the ruling elite and the opposition against each other during the past four years when such incidents have come to light. Under the proposed Fugitive Economic Offenders Bill, confiscation is not limited to the proceeds of crime, and extends to any asset owned by an offender, including Benami property. Such clauses are liable for legal challenge, especially if there are third party interests and doubts about real ownership of the assets. Care has to be taken to draft a law that is free from legal infirmities from the point of view of fundamental rights and due process. The government has justified not linking the forfeiture clause to criminal conviction by citing the principle enshrined in the UN Convention Against Corruption, which India ratified in 2011. The convention envisages domestic laws for confiscation of property without a criminal conviction in cases in which the offenders cannot be prosecuted for reasons of death, flight or absence. The Bill is reasonable in that a fugitive offender will cease to be one if he or she appears before court. There is a 180-day window during which the property will remain attached, with a provision for appeal against an order of confiscation. While the utility and effectiveness of laws are best assessed in the implementation, it is important to ensure they are fair and reasonable. The shortcomings in previous laws must be avoided, and the new legal regime impartially enforced in the interest of providing safety to the funds that belong to the common masses.