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Fugitive Economic Offenders Bill: Are we nation of more laws and no action?

Special court has become a panacea as if it is going to solve all problems of this country. But, are you even increasing the number of Judges

Vivek Tankha 


Chairman, Sir, through you, I would like to put forth certain points, which need the consideration of the Government, which has brought in this Bill. This Bill has been passed by the Lok Sabha. What does the Statement of Objects and Reasons of this Bill say? In short, it states that the existing civil and criminal provisions in law are inadequate to deal with the severity of the problems. The second thing is that Fugitive Economic Offenders Bill, which we can call as FEO Bill, 2018, will ensure that fugitive economic offenders return to India to face action in accordance with law.

Before I go into the Bill, which I will be submitting in due course, I must tell you that according to well-known economists, the money which is stacked abroad is only 10 per cent of what stays in India. So, the moot question is: What have we done to the 90 per cent of the money that stays in India? The best case with the government is that they brought forward the policy of demonetisation. Till date, we have not been able to get the figures of demonetisation. How much black money have they unearthed after that? I am told that they have received more than what they had even anticipated. If that is the answer, then, what is this Bill going to do?

Number two, it is mentioned that if the value of proceeds of crime is Rs 1 billion or more, it enables us to take action under this Bill. Why this figure of hundred crores? Even an offence of Rs 100 million is bad enough. Even that is public money. Why have you pitched it at Rs 1 billion? One question that the people are asking is: Are we not willing to be strict enough for people who are within Rs 1 billion? People like Lalit Modi, Mehul Choksi, Vijay Mallya, Nirav Modi together account for nearly Rs 240 trillion. If that is the correct figure what I am stating, even if it is 10 per cent less or 30 per cent or 40 per cent less, it is a huge money. Now, all these people escaped India despite there being parallel laws to stop them. I will come to the parallel laws a little later.

Are we a country where we enjoy making lot of laws with no action? I remember Nani Palkhivala once addressing one of the law conferences and saying, “we are a country of too many laws.” Now you have so many parallel laws which deal with the same situation. How many times are you going to attach and confiscate the same property?

You also talk of special courts. Now special court has become a panacea as if it is going to solve all problems of this country. Now, in PC Act, there will be special courts. For this Bill, there will be special courts. For women, there will be special courts. For youth, there will be special courts. For SC/ST, there will be special courts. Now are you even increasing the number of Judges? Today, the state of affairs is, the High Courts are short by 40 per cent Judges, the lower courts are short by more than 50 per cent Judges. Out of the existing pool, you keep making special courts. What is going to happen to the rest of the cases? While we broadly support the Bill because we don’t want to be seen as opposing such a measure, but I am going to tell you why despite your hype, despite the marketing techniques which the Bharatiya Janata Party employs all the time, you possibly will not get the results that this country deserves.

Now please just come to the Bill one-by-one. The Bill, as brought here, extends to the whole of India. Naturally; because the Constitution says, ‘India means the States and the Union Territories of India.’ Now in this Bill, you have no jurisdiction for people who are outside the country who may also be co-conspirators in a crime in India but sitting abroad. You can’t touch them. For that, you have said that we have a UN Convention which says that every country who is a signatory to that Convention must follow and cooperate with the law of each other’s country.

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I ask you: Is this Bill to be treated as a subject of criminal law or civil jurisprudence? According to this Bill, the only feature of this Bill is that if an Indian or an individual who is based in India leaves India either to evade arrest or to evade proceedings, to bring him back, all these proceedings will take place which range from survey, to attachment, to confiscation. Now would confiscation be a criminal proceeding or a civil proceeding? If it is a civil proceeding, then foreign courts will not take it as a criminal case. They will take it as a civil case, and, according to the burden of proof I think Clause 19 or some section of this Bill — preponderance of probability is the measure of proof with the onus being on the prosecution. If preponderance of probability is the measure, then obviously, it is in the nature of a civil dispute. The point I am making is, is this Bill strong enough to even achieve what you are trying to achieve?

If you come to Clause 3 just for a second, the provisions of this Bill apply to any individual who is or becomes a fugitive economic offender on or after the date of coming into force of this Act. That is only when the Act comes into force that you can make the fugitive an economic offender. Now if all the big fishes have escaped who already were accused under different laws whether it is Nirav Modi, Mehul Choksi or even Lalit Modi or Vijay Mallya, then what happens to those people now? Will they be covered under Clause 3? I suppose they can be because ‘who is or becomes’. But that will be a matter of debate again. If it is a criminal proceeding, it cannot be retrospective.

If it is a civil proceeding, it can be retrospective, but in a civil proceeding, the other countries would not help you. They would only help you if it is a criminal proceeding. So, there is a legal angle to the whole thing also, nationally and internationally.

Similarly, when you come to clause 4, it says, “…Director or any other Gazetted Officer not below the rank of Deputy Secretary authorised by the Director for reasons of this purpose has reasons to believe...” Now, this is like the Income Tax Act where you have reason to believe that somebody is doing a wrong. But the problem here is, you have authorised these officers to enter somebody’s house without a Court warrant and without witnesses; now, if they go and plant something there, would that be fair? If this minimum jurisprudence of natural justice is not followed, I am sure, in foreign jurisdictions, when you make a request against such persons, you would not meet any success because this may be cited against you.

Edited excerpts from a speech by Congress MP in the Rajya Sabha, Vivek Tankha on the Fugitive Economic Offenders Bill, 2018, July 25

First Published: Sat, July 28 2018. 20:02 IST