Notify the benami law

S. MURLIDHARAN | Updated on February 04, 2011 Published on February 04, 2011

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Sometimes, we are not aware of the existence of the tool at hand and are at our wits' end to reduce the impact of or end a festering and debilitating problem.

The Prime Minister who is mulling an Ordinance to address the rampant and cancerous corruption problem of Himalayan proportions would do well to first look into his existing arsenal which includes Benami Transactions Prohibition Act 1988 (the benami law), the one of recent antiquity, but whose potency has been stifled and killed by vested interests. It was the brain child of the late Prime Minister Rajiv Gandhi who was keen to cleanse the Augean stables and notched up quite a bit of success before sinister death put paid to his noble crusade. The benami law sent shivers down the spines of people who had a lot to hide and whose accumulative tendencies was paralleled only by their supple conscience. Therefore they successfully applied pressure on the government to defang it for as long as possible and leave it anaemic and impotent.

Defanged, diluted

The upshot is we have a benami law sans teeth — holding properties benami (in the names of fictitious or non-existent persons) is illegal. And this part of the benami law is operational, but not sufficient to put the fear of God into crooks and charlatans-in-reverse in the absence of operationalisation of its nuts and bolts provision, nay its lynchpin — the machinery to confiscate such properties.

Yes, successive government have either been dragging their feet or have been standing on rubbery legs supported by coalition partners most likely to be done in by the peremptory, but desirable regime, if notified. They have seen wisdom in passivity, in not rocking the boat by notifying the authority for confiscation for properties held benami. With such magnanimity, they might have purchased peace but at what cost?

To be sure, the benami law is not a perfect piece of legislation nor is it the panacea for the pandemic corruption pervading the country. Its definition of benami itself is somewhat faulty in that it ropes in some of the hoary, time-tested and perfectly genuine practices, but that is no reason why the government cannot dust up the law from the statute book, remove the glitches and operationalise it.

And again it would be simplistic to equate the genus of corruption with one of its species — the institution of benami. For, wily people in power are not content simply brazening it out with benami properties; they also know how to transfer their ill-gotten money on the sly to Swiss and other bank accounts that confer anonymity and bring a sliver of it back home duly laundered once again on the slythrough instruments such as the opaque participatory notes offered by the formidable FIIs. The point is benami does not exhaust all variants of corruption and wrong-doing, but launching a frontal attack on it would send the right message, besides fluttering the dovecots of people sitting smugly on enormous sums of money brazenly made through abuse of power.

The task of confiscation would by no means be easy because in the first place identification of benami properties itself would not be easy. For, not all are as naïve as a company promoter who was caught with his pants down when the Delhi High Court found him subscribing to the shares of the company in thousands of benami names through bank drafts bearing successive numbers from the same branch of a bank. Evidently, the bank manager was as guilty or naïve as the promoter, but the truth was the two were too complacent for their own good. The task of the administration would be that much easier if a peremptory law that is called for in the current circumstances is backed by an equally peremptory dispensation consisting in reverse jurisprudence — select people in positions of power have to prove their innocence when their property is confiscated without compensation under the benami law.

We have for long lived with the legal concept of assets disproportionate to one's sources of income. The CBI, in particular, uses it as its calling card and soon enough wields it as its trump card when it finds that the person caught has no worthwhile explanation for his phenomenal acquisitions. This must be applied by the authority for confiscation relentlessly. Its cause would be served if for good measure it is not heckled by stay orders.

Given the fact that discretionary powers have been the bane of our system, the Prime Minister perhaps would do well to clip the wings of Ministers in a position to dispense favours for cash or land if you like or anything at all for that matter. It is amazing that precious and valuable telecom licences have been issued according to the whims and fancies of the incumbent Ministers, whereas considering the sensitivity of the issue and its propensity to raise storm, Cabinet clearance or at least clearance by a group of ministers should have been mandated. The omission is glaring because we do not have a system of cabinet clearance for FDI in excess of certain threshold or into certain areas considered sensitive in the light of national and public interest.

(The author is a Delhi-based chartered accountant).

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Published on February 04, 2011
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