Justice (retired) AP Shah on Monday asked Prime Minister Narendra Modi to prevent the de-criminalising of economic offences in India. The High Court judge, best known as the first in India to judicially de-criminalise the law of sexual orientation, has sent a missive on behalf of a whistleblower’s collective with key recommendations on the company law. He has also trashed political appointments to PSUs such as that of BJP spokespersons Sambit Patra and Shazia Ilmi.
The Union ministry of corporate affairs had tasked a panel to look into converting some of the offences under the Companies Act into ‘civil offences’ from ‘penal offences’. The committee has a short deadline of a month, viz by August 15, 2018. This would mean that violations of the company laws would no longer attract punishments such as prison time and/or penal fines. Some of these offences are already ‘compoundable’, which means that they can be settled by the authority in question and the government wants the panel to consider if some of the currently non-compoundable offences can be treated as ‘compoundable’. Offences under the companies law are also probed by the serious fraud investigation offences (SFIO) apart from other regulators.
Justice Shah, writing on behalf of the Citizen’s Whistleblower Forum, has asked Modi to step in and prevent the ‘de-criminalisation’ of the Companies Law. He has cited the experiences of the past which led to firming up of companies law, such as the Satyam scam. There are also allegations of economic offences reported recently such as the bank fraud probe into dealings of Nirav Modi and Mehul Choksi, Vijay Mallya (Kingfisher Airlines and UB Group), amongst others. Public banks face a massive NPA (non-performing asset) crisis in lakhs of crores.
‘If implemented, the [Companies] Act will be severely diluted and the much needed deterrent of criminal punishment will be done away with. This must not be allowed to happen in the larger public interest,’ Justice Shah has written.
Though Justice Shah has not mentioned it in his letter, there are also several cases where Indian companies have attracted foreign investment by overvaluing assets and duping genuine investors, which has been the cause for concern for both institutional and non-institutional investors.
The letter also recommends broadening the scope of the companies law to remove directors who had been found guilty of money-laundering and tax evasion.
The letter by Justice Shah also outlines several suggestions to the Companies law including doing away with political appointments to the boards of PSUs. Justice Shah has specially mentioned BJP spokespersons Sambit Patra (appointed to ONGC board) and Shazia Ilmi (appointed to Engineers India). He has mentioned that there are at least 10 BJP leaders who have been similarly appointed to PSU boards.
Justice Shah said that the cap on political donations (earlier at 7.5% of average of company’s net profit for past three years) should be restored. Otherwise, even loss-making companies would be making political donations at the cost of shareholders. Besides, it would also increase corruption and generation of black money through benami channels.