Somesh Arora: Does Rowlatt Act Still Rule Independent India?

Rowlatt Act of  Independent India:  As a young one and at my School going age, I learnt my first lesson about Rowlatt Act, 1919 in India`s independence history. With all my cramming prowess, my teacher made me memorize that Rowlatt Act was draconian as it permitted the British to detain any Indian without trial. By the time I studied law, similar laws had already started existing in independent India with MISA and COFEPOSA in full flow. In fact, if Lallu ji had continued to follow the tradition of naming his children(even after MISA) on the names of prevalent preventive detention laws, his children after MISA would have been called NSA,COFEPOSA, TADA, POTA, PITNDPS etc. If implementation of all these laws in free India was not appalling, we also started having curbs on the right of enjoyment of property of persons and their dependents, even when they had still to stand trial and were mere accused. While Central Excise and Customs laws provide for provisional attachment of property which eventually lapses after some period of time, Money Laundering Act permits attachment of property even without case having been proved and such attachment continues till the offence is tried and can result in confiscation on proving of charge or de-attachment at that stage, in case charge is not proved. But the law is silent as to what will happen in case conviction is reversed and confiscated property is sold or damaged to the detriment of the owner during the appellate stage, if he wins. A law   for taking away the right of enjoyment of property even prior to conviction was made to my knowledge by dictator Col. Gaddafi of Libya. Even in USA such attachment is provided post conviction in cases of drug crimes.  For smugglers , SAFEMA in India, provides for attachment of property post conviction or in cases where preventive detention orders were not quashed or revoked.

-           Recently, Justice Ramasubramaniam of H`ble Madras High Court declared the PMLA as a legislation that punishes even the victim as he is bound to loose his property either to the state or to the wrong doer. While declaring Section 8(4) of PMLA as unconstitutional, following observations were made by the Justice  Ramasubramaniam  “With great respect to the Division Bench of the Andhra Pradesh High Court, the court has not tested the validity of Section 8 (4) of the Act on the touchstone of the Constitutional guarantees available to children and women residing in the property and the statutory protection available to tenants in terms of other enactments.

-           Even if I assume for a minute that the object of the PML Act is to keep the accused out of the possession and enjoyment of the proceeds of crime, the human rights of other members of his family or even persons who are in occupation of the property under lawful agreements of tenancy cannot be thrown to the mercy of the respondents (Union Finance Ministry and Enforcement Directorate),” the judge said.

-           He held that PMLA, not only seeks to punish the offenders, but also seeks to punish the victims of such offences. Take for instance a case, where an offence of kidnapping for ransom punishable under Section 364-A takes place. If the amount involved is more than Rs.30 lakhs, it is a scheduled offence under PMLA. Therefore, if the accused is apprehended and charged under PMLA and the money is also recovered, then the person who paid the ransom to the accused and who happens to be the victim of the crime, will lose his money by virtue of Section 8(6) and Section 9. He would rather prefer to turn hostile in the criminal case by reaching an agreement with the accused so that the attachment order gets lifted under Section 8(5) enabling him to take away his money. In other words, Section 8(6) and Section 9, which seeks to punish the victims of crime along with the accused, appear to be a disincentive for the victims. The same analogy holds good even for offences of robbery and dacoity punishable under Sections 392 to 402, which are included in Paragraph 1 of Part B of the schedule to the Act. A person, who is robbed or a person on whom dacoity is committed, has to lose his property to the Central Government by virtue of Section 8(6) and Section 9 of the Act, if the stand taken by the respondents is accepted. For the victims of crime, there would virtually be no difference between the accused and the Central Government, as in any case, they would have to lose their property, to either of the two.-          

-           Now, that we have Political persons who have been on the receiving end of some of the legislations which though ostensibly were made with good objectives made them suffer as well, Is not this the time that legislation are made which are practical and do not have potential to victimize the common man? After all, if Rowlatt Act was bad for Indians under the British and was opposed by Mahatma and Lajpat Rai who mobilized opinions against it, how similar Acts can be good for Indians under Indian Government. The prudence of not taxing salt under Excise law in independent India equally applies to the Rowlatt Act.

-           Hope the proposed Money Laundering( Amendment) Act, 2012 will be viewed in this light and not as a mere tool to give more powers to the State or  to appease some international body.-          

Former FMs hog the limelight: The month of July,2012 was particularly auspicious for the former occupants of the North Block. It was for the first time that an occupant of Finance Ministry in North Block moved to the middle of Raisina hill, when Mr. Pranab Mukherjee became president of India. Another former FM who became PM came back as FM, though only for a short while in July.  We heard the news of former FM Sh. N.D. Tiwari being declared DNA Dad at the advanced age of 87, after a protracted legal battle having been fought by his claimant son, again a record of the sorts.  Further, we found Lord Murugan and celestial combination was favorable to Sh. P.C. Chidamabram who moved retro to western part of the North Block again from its Eastern part, after again becoming FM from HM. He also got clean chit from Apex Court in 2-G scam matter signaling that in Chiddu v/s Subbu battle, it is time for the latter to lie low and accept that stars are not particularly favoring him.

Greater than Rs. 2,000/- Cash Register: A part from making all its staff take the oath of integrity and honesty and no corruption atleast two times a year (the frequency may increase in future), successive Governments have also been adhering in their bid to make `serious effort to curb corruption’ to ask all its staff having public dealings to make entry in a register, if they have in their possession more than Rs.2, 000/-. How much such an initiative has curbed corruption is anybody`s guess? But, such an exercise does eat into, whatever little time an officer has for public dealings after Parliament questions, R.T.I., office work and protocol duties. Another positive fall out is that such an exercise has generated employment in and around Government offices, as we have collecting agents available and willing to do the work for officers helping them in keeping their pockets light in Police,Custom Houses, Transport, Provident Fund ,land revenue and other  departments.  They also act as mobile human ATM machines -accepting and dispensing cash as per requirement. An empty pocketed corrupt officer can easily make entry of Rs.20,000/-,as he will not be subjected to any check or can borrow from his other like colleagues for the sake of showing -as the Currency note numbers are not entered and will thus get a license to make cool Rs. 20,000/- per day without much problem.  The greater than Rs.2,000/- Cash register also presumes that a corrupt officer will not demand bribe other than in cash and therefore does not require him to declare his/ her  Gold or solitaire rings or other material possessions.  It also presumes that corruption exists only in places having public dealings, though the scams point out otherwise.  That whole of the staff, whether honest or dishonest detests such a measure as lack of confidence shown by the Government in them, is another thing.


 

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