Benami authority has an uphill task

One of the most ill-kept secrets in India is bulk of the ill-gotten money is invested in benami properties within the country, and not stashed away abroad even though the Swiss connection makes for a syrupy conversation. In Chennai for example people escorting shoppers take a special delight in telling sotto voce, wink-wink nudge-nudge that the shop thay are in actually belongs to a political heavyweight or a celluloid queen . Much the same is the alleged property owning pattern in the major and minor cities as well as in the rural areas where tiny fragmented arable lands actually belong to mighty landlords whose names one shudders to utter.

The Rajiv Gandhi government therefore rightly thought way back in 1988 that one earnest step that could be taken in taking head on the fight against corruption was to enact a peremptory law that confiscates properties held benami without compensation with the onus of proving that the property is not held benami resting with the property owner. The law tpassed by Parliament and approved by the President is still in the limbo for more than two decades now thanks to the successive government's pusillanimity in not appointing the authority for the daring job of confiscation. The UPA II facing flak for not taking any action to tackle the black money menace seems to have decided to address the problem of illicit money finding easy domestic sanctuaries under the age-old institution of benami. It has decided in favour of dusting up the benami law in limbo, remove a few glitches and go to town with its proclaimed seriousness in tackling the black money menace.

While the Authority for confiscation is going to be appointed straightaway under a built-in provision in the law as opposed to the extant law which has given this power to the government of the day, the government seems to have taken a step forward and backward. The new law in the anvil shifts the onus of proving benami on the government i.e. on the Authority for confiscation. While this may appear more humane and in keeping with the time-honoured fundamental principles of jurisprudence, the truth is the law once again would be condemned to live in the limbo, this time round because the Authority would have a near impossible task of marshalling water-tight information and documents to nail the claim of properties being held benami.

Extraordinary situations call for extraordinary solutions. The original law was therefore right in throwing the onus on the alleged benami though admittedly nothing came out of such a daring show of legislation. It is equally true that the same results could have been achieved by the Prevention of Corruption Act, a case under which one can throw the gauntlet at the politicians and civil servants but has been used so sparingly that it hasn't produced any results either.

The UPA II therefore might take credit for initiating a solemn law to fight corruption in high places but with passage of time it would become clear once again that the law defies implementation. This indeed is the bane of the country. We have solemn and well meaning laws but they falter at the altar of implementation. A couple of daring confiscations without compensation is what the doctor has ordered. They would send chill down the spines of the crooked and the smugly daring. The properties confiscated in addition would keep the governmental cash registers ringing happily, making up for the much bemoaned abysmally low tax GDP ratio. There would a sense of poetic justice as well all round — the money belonging to the people at last is being spent on welfare schemes for people.

And such a seemingly draconian law would for once go down well with both the classes and masses in the light of the ultimate noble purpose it has served. One hopes it is not used to settle scores or to set the wheels of retribution in motion. That indeed would be a tall order. But exemplary damages and compensation for harassment can be a check against high-handedness though those in power might not be deterred by this, secure in the knowledge that such damages and compensation at the end of the day after all is going to be paid from out of the governmental coffers. Some way has to be found to address this possible misuse of the law assuming the government makes bold to revive the reverse jurisprudence norm in the law — shifting the onus of proving innocence on the accused.

(The author is a Delhi-based chartere

d accountant.)

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